People v. Crawl

y Crawl PEOPLE v CRAWL 7) (Calendar 5, Argued January No. No. 56294. Docket . Decided 29, August 1977. by jury convicted Claude E. Crawl was Recorder’s Court of Detroit, J., Davenport, first-degree Elvin L. murder in the robbery. alleged accomplice, perpetration of a The defendant’s Wilson, convicted, plea guilty, on his of second- Harold murder, prosecution degree testified for the Crawl’s issues, argues, among pistol Defendant other that a trial. cartridges into evidence were obtained as the introduced result illegal and seizure of a barber tool of an found in arrested; give he was and that refusal to where jury second-degree an instruction to the on murder was erro- Gillis, J., Appeals, McGregor neous. The Court of J. H. P. (Docket 13529). Adams, JJ., ap- affirmed No. Defendant first-degree peals. Held: The conviction of murder is reversed judgment entry of a and the case remanded of conviction of murder, or, second-degree upon prosecutor, motion of the a new first-degree trial for murder. Coleman, joined by Ryan, Justice Justice would remand to entry judgment the trial court for of a of conviction of second- degree resentencing murder and for because the court refused request jury second-degree the defendant’s instruct However, agree police murder. she did not that the search was ^[17] [1, ^[15] [2, ^{[12] [10] [6] [14] [16] [4]} Constitutionality 75 Am Jur 68 Am Jur 40 Am Jur 3, 5-9,13] 29 Am Jur 81 Am Jur Witnesses 40 Am Jur incident to valid arrest. 23 L Ed 2d 966. 5 Am Jur 5 Am Jur 68 Am Jur 40 Am Jur 2d, 68 Am Jur 2d, 2d, 2d, Appeal 2d, Appeal 2d, 2d, 2d, 2d, References Trial Homicide Searches and Seizures 2d, Homicide 45. § Searches and Seizures Evidence 539. Homicide searching premises §§ 2d, 588, and Error 545. and Error 566. § for Points in Headnotes Searches and Seizures § 559. §§ 589. §§ 498, 522, 496, § § 525. § 560. §§ 89. without search warrant as 36. §§ 92. unjustified illegal. The lack of control and the justified proceeding danger of the situation search the bed- obtaining delayed first a search warrant. To have room without needlessly endangered police the lives of would have officers. scope without The limits on the of searches warrants estab- cases, Supreme lished the United States Court on which relies, opinion play Justice Levin’s do not come into until police have are in control of arrests been made and the require police situation. The Fourth Amendment does not investigation delay officers to in the course of an if to do so gravely endanger would their lives or the lives of others. Three defendant, persons besides the one of whom could have been participant robbery reported the third in the and murder to the police, milling running were around the where arrested, handguns the defendant was and one of the used in the crime had not been found. The search conducted in the quite scope contempo- case limited in and instant was occurred lives, raneously dangerous with a situation to the officers’ exigent reasonable under circumstances. Williams, Moody, Jr., concurring, with Justice Blair Justice entry judgment also would remand to the trial court for of a of second-degree resentencing. of and for conviction murder Al- though agreed analysis present he with Justice Levin’s of the seizure, finding law of search and he dissented from a on these gun facts that the search of the bedroom and the seizure of the police they law. The testified was violative of the searched people "milling under the circumstances that all over the place”, proximity, that the rooms were in close and that it was night building "they a murderers a search for where had * * * trouble, shootings, thing.” had that sort of this On record “protective” justified reasonably necessary search was self-protection safety and the of other officers. Fitzgerald Justice with the Chief Justice Justice concurring, wrote that: Although may 1. a search without a warrant be conducted arrest, incident to a lawful an arrest made outside an arrestee’s justify subsequent residence does not the residence. However, assuming "protec- even it was lawful to conduct a apartment following tive” search of an the defendant’s arrest outside, bag the search without a warrant of a barber tool discovered in that search and the seizure of its contents were any narrowly exceptions not within of the circumscribed requirement Michigan warrant of the and United States Consti- arresting tutions. The officer had determined that one was no v Crawl bag might destroy who where the was found in the room might bag. weapon be contained in the or use a evidence bag cartridges were not in seized from The revolver suspect plain in the room. the officer searched for view as otherwise, circumstances, justifying exigent or were no There contents without a and the seizure of its the search warrant. request for instructions to the of defense counsel’s 2. Refusal second-degree offense

jury as a lesser included murder only (felony) this were the first-degree erroneous. If murder was second-degree error, affirmed as one of conviction could be resentencing unless the remanded for and the case murder first-degree prosecutor opts murder. Since for a new trial for during impermis- allowing of evidence obtained introduction validity of a conviction of and seizure affects sible search murder, second-degree is entitled to a new trial. the defendant assigned did not brief the search counsel 3. The defendant’s Appeals. That failure was a issue in the Court and seizure appellate requiring presentation rule mistake. The serious Appeals greater dignity than is of no first to the Court issues prohibition searches and of unreasonable constitutional against person’s right protection to If an accused seizures. by impermissible and seizures can be waived searches then, counsel, principle, ineptitude by like carelessness or appellate presented requiring issues be first to rule by prosecutor’s Appeals can be waived failure Court noncompliance timely to with this call the Court’s attention to rule. implication prosecutor to was entitled rebut 4. The accomplice alleged testimony by was motivated the defendant’s showing by the conces- with evidence the nature of self-interest witness, participation who had admitted his sions made to second-degree by pleading guilty murder and matter in the however, should, be full and The disclosure had been sentenced. showing example, by complete misleading jury, for to avoid parole subject jurisdiction board. still of the that he was proceedings. for further Reversed and remanded Decision of the Court Jury. First-Degree Murder —Instructions 1. Homicide — perpetration first-degree of a murder in the A conviction of entry robbery of a and the case remanded is reversed murder, or, upon second-degree judgment mo- conviction of first-degree prosecutor, murder where a new trial for tion request jury the trial court refused a instruct second- 28.549). (MCL 750.316, 750.317; 28.548, degree MSA murder Opinion by Coleman, J.

Ryan, J. and Seizures —Without a 2. Searches Warrant — Protective Searches —Incident Arrest. by police, discovery opening A search limited to the of a bedroom, barber tool in an which occurred contemporaneously suspect robbery with an arrest of a in a shooting, illegal was not unreasonable or because lack of con- police danger by justiñed and the of the situation trol proceeding per- without a search warrant where three other sons, participant could have one whom crime, been another re- milling running ported in the around the small handguns apartment, one of the used in the crime had not IV). (US Const, Am been found a 3. Searches and Seizures —Without Warrant —Protective Arrest. Searches —Incident scope on the of searches incident to arrest The limits without a Supreme warrant established the United States Court do not police play into until arrests have been made and the come are (US IV). Const, in control of the situation Am Seizures —Without a 4. Searches and Warrant — Protective Searches. require delay does The Fourth Amendment officers to investigation in the course of an to obtain a search warrant if gravely endanger to do so would their lives or the lives of (US IV). Const, others Am 5. Searches and Seizures —Without Warrant — Protective Searches. sanctity important of the home is an value that must be however, protected; weighed other values must be in the bal- according challenging ance to the circumstances of each case warrant, protecting police without such as the value of bringing dangerous officers’ lives and of a felon to the bar IV). (US Const, justice Am Appeal Preserving 6. and Error — Question —Instructions Jury. ffrst-degree (felony)

A defendant convicted of murder should Supreme receive the benefft of a Court decision and his case entry second-degree should be remanded for of a conviction of People v Crawl ground resentencing the on the that trial court murder and for request jury the the defendant’s instruct second- refused appeal degree abey- held in the defendant’s was murder where pending by the issue in the Court decision of that another ance case. by Williams, J. Opinion Concurring in Part Jr., Moody, J. Blair a 7. and Seizures —Without Warrant —Protective Searches Searches. may a warrant of a residence without "Protective” searches danger necessary reasonably prevent justiñed when that may escape; suspect large in the residence resist a however, occupying persons are once all the residence under supervision and and there no reason to believe that control present, "protective” anyone rationale else is for a search may longer a further search not be no obtains and conducted IV). (US Const, Am 8. Searches A place”, had IV). and officer was Searches. "protective” night persons occupying trouble, and Seizures —Without safety search justiñed ^[*] * search of of other rooms were ^[*] shootings, and murderers reasonably necessary a room in an apartment in close that sort of officers in a a Warrant — Protective proximity, building where apartment by thing” "milling police for where (US Const, self-protection testified all over that it "they a police that had Am was by Levin, J. J., C. Fitzgerald, Kavanagh, 9. Searches and Seizures —Without Warrant —Protective Exigent View — Searches —Plain Circumstances. cartridges from tool A revolver and seized a barber in an impermissible was search sei- obtained warrant, assuming zure without a it was lawful conduct a "protective” apartment following arrest of a outside, arresting defendant where the officer had determined might destroy evidence or use that no one in the room who weapon might bag, be contained evidence plain as seized was not view the officer searched for a (US Const, IV; suspect in the Am Const art bedroom

§11). First-Degree Included Offenses. Murder —Lesser 10. Homicide — murder; felony second-degree included offenses of There are lesser ñrst-degree always offense of mur- a lesser included murder 28.549). (MCL 28.548, 750.316, 750.317;MSA der First-Degree Included Offenses— Murder —Lesser 11. Homicide — Jury. Instructions to murder, murder, ñrst-degree including felony every In trial for required jury sponte, the court is to instruct the sua even over objection, second-degree on the included offense of murder (MCL 28.549). 750.316, 750.317; 28.548, MSA Requirement. and Seizures —Warrant 12. Searches requirement primacy of the search warrant is well estab- lished; rule in this area is that the most basic constitutional judicial process, prior outside the without searches conducted magistrate, per approval by judge or are se unreasonable under only subject speciñcally a few the Fourth Amendment — exceptions 'jealously which are and well delineated established IV). (US Const, carefully drawn” Am a Warrant —Incident to Ar- 13. Searches and Seizures —Without rest. justify arrestee’s residence does not An arrest made outside an residence, although subsequent search of the search without (US may be conducted incident to a lawful arrest a warrant IV). Const, Am Appeal Preserving 14. and Error — Question. Supreme Ordinarily the Court will not consider an issue that has presented preserved at not been the trial level the Court Appeals; requiring preservation of error at the trial level judge opportunity provides correctly trial to rule retrials, unnecessary provides avoid and also a record for appellate review. Appeal Preserving 15. Searches and Seizures — and Error — Ques- tion. requiring presentation appellate The rule issues ñrst Appeals greater dignity Court of is of no than the constitu- prohibition seizures; tional searches and if an unreasonable person’s right protection against impermissible accused by searches and seizures can be waived the carelessness or counsel, then, ineptitude by principle, requiring like the rule appellate presented Appeals issues be ñrst to the Court of prosecutor’s timely can be waived failure to call the noncompliance Court’s attention to with this rule. v Crawl Coleman, Evidence—Accomplices—Conviction. 16. Criminal Law — accomplice’splea guilty following An or his conviction a trial is against person. not admissible another Witnesses—Accomplices—Impeachment—Plea 17. Criminal Law — Guilty. prosecutor implication A was entitled to rebut an raised on cross- testimony by alleged accomplice examination that an accused’s by showing was motivated self-interest with evidence the na- witness, ture of the concessions made to the who had admitted participation felony by pleading guilty his in a murder second-degree sentenced; murder and had been the disclosure however, should, complete misleading be full and to avoid jury, example, by showing subject for that he was still jurisdiction parole board. Kelley, Attorney General, Frank J. Robert A. Derengoski, General, Cahalan, Solicitor William L. Prosecuting Attorney, Reilly Wilson, Edward Re- Training Appeals, search, & and Robert A. Prosecuting Attorney, Reuther, Assistant for the people. Appellate (by State Grove; Defender Office Chari counsel) Schwartz, L.

Steven for defendant. (reversing part, affirming J. in in Coleman, part). administratively Because this case was held abeyance pending People in the decision in (1975), Carter, 236 NW2d 500 I by concur in the result reached Justice Levin part opinion. I of his The defendant’s case should entry be remanded to the trial court for of a judgment second-degree of conviction for murder resentencing.1 and for opinion attempts Justice Levin’s is dicta to the extent that it holding retroactively decide whether the applied v Carter is to be preceding abeyance to cases Carter that were not held in

the decision in that case. It should also be noted that none of the by opinion cases cited Justice Levin in footnote 2 of his discussed retroactively applied nonabeyance whether Carter should be All of the cited cases were decided cases. by peremptory orders and there- Coleman, Sergeant Justice agree with cannot Levin I during of the bedroom cursory Ewald’s life-endangering situation while potentially not yet were under occupants of He illegal. acted unjustified control was offi- of his fellow protect the lives reasonably cers.

I 11, 1971, Detec- p.m. May approximately At Kelly Ewald and Lawrence Sergeants Edward tive a radio police department received the Detroit investigate robbery directing them message arrived They at a Detroit bar. at shooting they p.m. 9:15 There approximately bar p.m. 8:30 and 8:50 between sometime told that handguns had robbed men armed with p.m. two bartender. One of killed the the bar and already had been in the crime handguns used the also told that one of They were recovered. wounded, captured and taken had been robbers Hospital. General Detroit p.m. Kelly Ewald and 11:30 approximately

At spoke with the wounded hospital the went other robber’s name He told them that the robber. was the one who Claude Crawl and that Crawl was rough gave bartender. He them had shot the apart- of an of Crawl and the address description be Park where Crawl could Highland ment involved in He also said third man was found. the did not name or describe robbery, but he the man could be found. say man or where hospital and radioed Kelly Ewald and left police department for assist- Highland Park controlling interpreted precedents on the issue should not as fore of Carter’s retroactivity. question retro- The of the extent of Carter’s activity open. is still v Crawl Coleman, Soon a Highland anee. Park scout car with three uniformed officers joined them and the group Highland drove towards Park address where Crawl was said to be. They arrived at the address after shortly midnight.

The address was a apartment two-story building. The wounded robber had said Crawl would be in apartment Highland 204. The Park officers warned Ewald and there Kelly trouble, had been including shootings, apartment at this building in past. Highland One Park officer drove the scout car into an behind alley the building and Ewald, remained with the car. Kelly and the re- maining Highland Park approached officers building’s front entrance. They pinpointed apartment location of 204. positioned Ewald him- self in an alcove from which he could observe the apartment’s windows and the front of the building. Kelly and the two officers upstairs continued the apartment.

When Kelly and the two officers reached the apartment, Kelly knocked on the door. One of the occupants apartment opened the door and admitted policemen three into a small hall- way. Straight ahead the hallway led to the living room and kitchen. steps Three from the door on the left side of the hallway the entrance to a small bedroom. The occupants were scurrying all through apartment. policemen three ran through looking for Crawl and trying bring the occupants under control. Meanwhile, Ewald observed from position his downstairs a man out climb one of the apartment’s windows and jump ground. to the Ewald shouted for the man to halt and identified himself as a police officer. The man steps walked a few and then halted. Ewald determined the man was 401 Mich 1 Coleman, placed arrest and or- Crawl, under him Claude apartment. to the him back dered Kelly Approximately and the after to the two minutes apartment, admitted were officers two Ewald appeared The door at the door. and Crawl Crawl, open was now who directed and Ewald Crawl over handcuffed, turned inside. Ewald and two man officers. Another of the one control women were milling living They room. were running much confusion. There was around. or Kelly persuade trying to officer were the other

and stay occupants At this still. to sit down the point, No one was the bedroom. looked in Ewald on the bed and looked under or Ewald then there. opened the case.2 He barber’s a small black saw unlocked plated a chrome hand and found case spent gun, shells, tools and iden barber’s live and belonging to Ewald did not Crawl. cards tification anywhere the bedroom. He seized else in look case police contents, took these items to its

headquarters along Crawl and the with occupants, on narcot had been arrested who three first-degree charged charges. with Crawl was ics confessing the crime. murder after suppress trial, filed a motion Crawl Before apartment. After eviden- seized at items hearing, tiary denied. The items the motion was against Crawl at his into evidence were admitted gun as look- identified Several witnesses trial. ing robbery. guns A used in the like one of the gun expert run on the testified that tests ballistics robbery the scene found bullets robbery. gun in the was used showed The identifi- that he was a barber. Crawl testified gun Crawl’s. cards found with the cation bed, originally but saw the case "under” the said he Ewald top consistently lying bed it that he saw testified thereafter when he looked in the bedroom. v Crawl Opinion by Coleman, J.

II point Justice Levin contends that at Ser- geant Ewald entered the bedroom there was no justification seizing opening the barber’s says danger case. He anyone that "there was no that apartment grab in the could * * * any weapon make use of contained in the bag”. respectfully disagree. I Sergeant captured

When Ewald Crawl outside apartment, thereby prohibited the returning he was not from to assist his fellow apartment, officers. When he entered the about began, two minutes after the raid the situation police was not under control. An unidentified man milling running and two women were or around living apartment. room of this small There great was a deal of confusion. The man could have handgun been the third robber. The other used in the crime was not accounted for. The officers had every they reason to believe were in a life-endan- gering including situation. trouble, There had been shootings, apartment building past. at this in the night. They looking It was dark and late at accomplice might for a murderer and an who well prepared again. to kill say circumstances, Under these I cannot Sergeant cursory Ewald’s search was unreasonable illegal. police The lack of control and the dan- gerousness justified proceeding of the situation his obtaining without first a search warrant. To have delayed needlessly endangered would have lives of his fellow officers. heavily upon

Justice Levin relies Chimel v Cali fornia, 395 US 752; 89 2034; S Ct 23 L Ed 2d 685 (1969), and United Chadwick, States v 433 US 97 (1977), support S Ct 53 L Ed 2d 538 his Coleman, illegal. case was in this the search conclusion warrantless searches scope on the The limits into play not come cases do by these established are in made and have been until arrests situation. control Chimel, to the admitted policemen were

In three wife and defendant’s by the home defendant’s work. to return from the defendant for waited arrived, him for police the arrested he When Then, accompanied by the shop. a coin burglary of wife, conducted a detailed police the defendant’s house. In room in the every search 45-minute Chadwick, double-locked seized a officers federal suspected marijuana. to contain they footlocker police Federal transported a The footlocker in an evidence stor- building it was locked where convenience, later, at their hours A few age room. footlocker. and searched the opened the officers nor Chadwick Chimel involved uncon- Neither life-endangering situations potentially trolled Also, at bar. in case the situation like more intrusive were much in those cases searches undertaken here. protective quick, than the cases to be Thus, either of these I do not find precedents. convincing controlling or Warden, like is much more case at bar The Hayden, Penitentiary Maryland 294; 87 387 US police There Ct 18 L Ed 2d S entered a just robber had that an armed were told address, a police The went certain address. A house, on the door. and knocked two-story the police. admitted the door and woman answered armed, they but the robber was knew They he was. the house where in did not know looking house through out immediately fanned the course of weapons. In and for for the robber minutes, found policeman one next few v Crawl by Coleman, an upstairs robber bedroom and arrested him. handgun for a cap Ammunition and a worn by during robber were found robbery underneath the mattress robber’s bed and ammunition shotgun was found in a bureau drawer. A shotgun handgun sawed-off and a were found on main floor inside toilet flush tank and cloth- ing worn the robber during the robbery was found in the basement inside a washing machine. Supreme The United States upheld Court items, and seizure search for of all these saying: "They police] reasonably acted they when en- [the * * * began tered the house and and for might to search for a man weapons which he had used the robbery or against

use them. The Fourth Amendment does require police delay not investigation officers to in the course of an gravely endanger if to do so would their Speed essential, lives or the lives of others. here was only thorough search of persons the house for weapons could have insured that [the robber] only present the all effect an police man that the had control of weapons against which could be used them or to escape.” v Hayden, supra, Warden 298-299. added.) (Emphasis bar, In the case at although the police knew him, where Crawl was and already had arrested persons, three other one of whom could have been the third participant murder, in the robbery and milling or running apart- around the small ment. The situation was not under control. The police had reason to every that believe their lives danger. search, were in Sergeant cursory Ewald’s limited to the discovery and opening of the bar- (a logical ber’s case place to a hide small hand- gun), was a minor intrusion into the defendant’s privacy necessary insure that the police had handgun control of other in used the robbery Coleman, against by one of them not be used it could that so police yet persons or under control not three the arrest. police suggests had other that the Justice Levin could have in- that courses of action alternative Upon leisurely safety just well. as sured their may may seem true. How- reflection, not that police act- officer that ever, ing remember we must enjoy luxury situation does a crisis in collegial contemplation discussions of calm decisions on-the-scene she must make he or before may life and between the difference mean death.

Obviously, somewhere. must be drawn a line important sanctity value of the home is The drawing protected. line, how- In be that must ever, weighed in the balance. values must be other protecting lives and of officers’ The value justice dangerous bringing to the bar of are felon must be to mind. These values come two that according weighed carefully to the circumstances of each case. scope quite in

Here, limited the search was ongoing contemporaneously with an it occurred dangerous potentially to the officers’ situation lives. The officers they what would did not know apartment. facing they Ser- when entered logical very place, geant only in one Ewald looked laying bed, to find the case on the the barber’s missing handgun. handgun and shells used in were, fact, could the case. He well the crime depended security judged of all have seizing gun. place, finding I believe In his the my the same. reaction would have been exigent reasonably Sergeant under acted Ewald finely I draw the line as would not circumstances. today. narrowly done Justice Levin has or as as People v Crawl Williams, J. precedent legal moral values nor the nor Neither in self-restraint for a lesson need complete require of the defendant’s reversal and seizure. of this search on the basis conviction defendant raised the other issues None granting complete of a reversal and warrant new in However, his case was held because trial. People Carter, abeyance su in for the decision procedural pra, whether instruc issue of given degree must be in murder second tions on felony requested cases, he and because murder trial, should receive the he instructions such Therefore, I would decision. of the Carter benefit resentencing for on a trial court to the remand upon second-degree murder, or, conviction prosecutor a new trial on the for of the motion original first-degree charge murder. J.

Ryan, J., concurred with Coleman, dissenting (concurring part; in Williams, part). that, under in the view I concur (1975), this Carter, 434; 236 NW2d trial court for be remanded case should second-degree judgment entry conviction of of a resentencing accordingly, with for murder and justice prosecutor, option if the ends of upon of the notification served and would be better trial court before judg- resentencing, to have the retried vacated and defendant and conviction ment (See opinion first-degree murder. 2.) the search of J., I concur that footnote gun the seizure of bedroom of the law. violative analysis

Although I find Justice Levin’s complete present both of search and seizure law my analysis accurate, different of the facts is to that of Justice his and closer from Coleman. Williams, J. (at opinion) page his 24 of states Justice Levin that: may 'protective* searches warrantless "While * * * pre- 'reasonably necessary justified when dangers suspect large in [a] at that vent house escape’, Maryland may Warden, resist Penitentiary Hayden, 294, 299; US 87 S Ct (1967), persons Ed once all 1642; 18 L 2d supervision occupying are under the residence is no reason to believe and there control present, 'protec- anyone a the rationale for else longer further search no obtains a tive’ search added.) (Emphasis may not be conducted.” persons occupy record, "all I understand the As supervision ing not "under the residence” were gun, Sergeant Ewald found and control” when Sergeant so believe. Ewald had reason to and he apartment entering the "I set that on Mr. testified stayed officers with down and one Crawl apart of the we looked around rest him and people any [were] if other to see there ment "[t]hey He that when he entered there”. testified place milling over the and the officers all were were get trying to sit and stand them down Kelly saying this, Officer corroborated still”. "people scurrying over started all admittance apartment * * * they scurrying the bed in Sergeant cetera, rooms, and then kitchen and et returned a minute or two after we had Ewald * * * Crawl in with Claude entered custody.”1 "Well, Kelly everybody we had calmed down later testified Officer people by Sergeant gun Ewald in the bedroom where the was found * * testimony, it is difficult to ascertain the had ran From this testimony events, complete reading sequence of of the exact leads to the conclusion that the nature light but whole, of the as situation danger rooms, proximity one of the of confusion locating Sergeant time of left in search and at the at the time Ewald gun. Crawl short, "milling under these circumstances

In proximity close place” and the over all rooms, of murderers especially night have had trouble building "they in a where * * * thing”, I find that a shootings, sort justified reasonably search was “protective” of the self-protection safety necessary for officers. other appeal raised on are without other issues

All merit. first-degree murder reversed with

Conviction of conviction of entry judgment for of a remand murder, reserving option in the second-degree judgment to have the conviction prosecutor first-degree for and to defendant re-try vacated murder. Williams, Moody, Jr., J., concurred with

Blair J.

Levin, Crawl was convicted of first- J. Claude of a dur killing for the bartender degree murder1 The Court of of a Detroit bar. ing robbery App 209 NW2d 809 Appeals affirmed. refusing in We conclude that there was error in second-degree allowing instruct on murder and during imper- of evidence obtained introduction and seizure. missible search to instruct only If the error was a failure murder, could be second-degree Crawl’s conviction murder with remand for second-degree affirmed as opts for a new resentencing prosecutor unless the other first-degree trial on murder. Since there is error which affects the of a conviction validity 750.316; MCLA MSA 28.548. Mich murder, is entitled to a new second-degree Crawl trial. bag apart- from in an

Evidence seized a barber As- objection. trial over was introduced ment lawful, following Crawl’s arrest suming it was a "protective” conduct apartment, outside the search apartment, of the the warrantless that search and bag discovered in the barber any not within of its contents were seizure to the warrant exceptions narrowly circumscribed 11 and the of Const art requirement § arresting de- officer had Amendment. The Fourth no one was in bedroom who termined weapon evidence or use destroy might bag. in The evidence seized be contained might shells) (a plain was not view as revolver and suspect the bedroom. officer searched circumstances, exigent or other- were no There wise, search of the the warrantless justifying of its contents. and the seizure

I Carter, People 434, 437; v 395 Mich 236 In (1975), 500 this held "that there are Court NW2d first-degree felony-mur- offenses to lesser included in- Second-degree always murder is a lesser der. murder”. In the com- first-degree cluded offense Jenkins, v People 395 case of Mich panion (1975), 442-443; this declared 236 NW2d Court murder, first-degree "in trial in- every that: for murder, cluding required the trial court is felony sponte, sua over jury to instruct even the lesser second- objection, on included offense of "[tjhis degree murder” but that decision added this case all tried after apply shall and to cases 1, 1976”. January decisions, Court, subsequent this

In number People v Crawl Carter, pre-Carter, pursuant pre-Jen modified kins first-degree convictions felony-murder, the issue preserved where at the trial level by objection request charge on second-degree murder, by reducing degree of conviction from first- to second-degree murder and remanding for resentencing option with an in the prosecuting if he attorney, "persuaded the ends of served, justice would better be upon notification to the trial court before resentencing”, to have the judgment and conviction vacated and a new trial first-degree murder.2 case,

In this judge refused defense counsel’s "request that your charge Honor second-degree murder”. The judge’s ruling was People erroneous. Carter, supra. v

II Two men3 robbed a Detroit bar at approximately 8:30 p.m. on 1971. May The bartender was fatally shot when he offered resistance. Howard Wilson, robbers, one of the was wounded in the shootout and hospital. taken to a He informed the police, about 45 minutes after the robbery, Crawl and another man participated in the rob and that bery Crawl could be found at his cousin’s apartment. arrived building

shortly midnight. after Officer Edward Ewald re- Dancer, People 802; (1976); People v 396 Mich 238 NW2d 29 v Livingston, 818; (1976); Bills, People 396 Mich 238 NW2d 360 v 819; (1976); Dates, People 820; Mich 238 NW2d 803 396 Mich (1976); People Smith, NW2d 360 v Archie 238 NW2d (1976); Aaron, (1976); 239 NW2d 602 Watson, People (1976); Jones, People 396 Mich 870 v Delvin (1976); Smith, Mich 871 245 cf. v Herbert 240 NW2d man, apprehended, allegedly getaway A third never waited in a car. building Larry while Officer outside

mained officers entered the or three other two Kelly and Ewald, apartment. to the proceeded and building outside, through a Crawl flee window saw standing he descended. him after and arrested building up to into the Ewald took Crawl still because Ewald was apartment, assertedly Ewald, according to looking suspect; a third there, could that he assumption was "[i]t too”. Crawl, arresting and the Kelly was

As Ewald apartment, "knocked officers went other admitted”. The two women the door and we were running present "started man who were and one at that time”. around the the apartment, Crawl entered When Ewald and "milling still all occupants were the three other trying get and the officers were place over the still”, stand but all three them to sit down and room at the time”. Crawl was living were "[i]n over to another officer. and turned handcuffed steps about a bedroom located three Ewald entered living from the room. per- that and the three other

Conceding Crawl room living were in the when Ewald entered sons bedroom, argue Ewald was people Wilson entering bedroom because justified persons told the officers that he and two other had robbery had been involved in the whether the third robber necessary to determine apartment. inwas he direct examination

Ewald testified on bag into the and found barber walked bedroom case under bed; on cross-exami- or small brief was on the bed. bag testified that nation he evi- opened Ewald found seized dence, shells, tend- including spent a revolver and People v Crawl 21 1977] ' Levin, J. robbery.4 ing connect Crawl with the Crawl and persons, were arrested on three other who charges, were then taken to head narcotics questioning. quarters for justified not would hold that Ewald was

We bag searching and that the evidence the barber seized was inadmissible. requirement primacy of the warrant is

"The Tyler, 564, v 399 Mich well established.” (1977); 467 United States v Chad 571; 250 NW2d (1977).5 2476; L 538 wick, 1; Ct 53 Ed 2d 433 US 97 S constitutional rule in this area is [T]he most basic proc judicial outside the 'searches conducted approval judge magistrate, prior by ess, or without per under the Fourth se unreasonable Amend are subject only specifically to a few established ment — exceptions.’ exceptions The are and well-delineated ” Coolidge carefully 'jealously drawn.’ v New Hampshire, 443, 454-455; 2022; 91 S 29 403 US Ct (1971). Similarly, People Reed, see L 2d 564 Ed (1975). 342, 867 362; 224 NW2d exceptions recognized

None of the war- requirement justified the search of the barber rant bag._ 4 revolver, bag tools, a two live contained barber .38-caliber shells, spent four shells and a holster. 5 judicial significant play "The warrant has a role to in that it provides magistrate, scrutiny the detached of a neutral which is a safeguard against improper more reliable searches than the hurried

judgment 'engaged competi- of a law enforcement officer in the often States, enterprise ferreting tive out crime.’ Johnson v United (1948). 367; has US S Ct 92 L Ed Once a lawful search [68 begun, proper likely it is also far more it will not exceed bounds 'particularly pursuant judicial when it describing is done to a authorization things place persons to be searched and the be Further, property seized.’ searched or seized of the lawful need to a warrant assures the individual whose officer, executing authority his search, power Camara v and the limits of his to search. Court, 1727; Municipal 387 US S Ct 18 L Ed 2d 930] [87 (1967).” Chadwick, 2476; Ed 53 L 433 US 97 S Ct United States 2d Mich may

Although con search warrantless arrest, an arrest made to a lawful incident ducted outside justify residence does the arrestee’s subsequent Vale v Louisi of the residence. Ct 26 L Ed 2d 409 ana, 30; 90 S 399 US (1970).6 incident was not an The search Crawl’s arrest. the arrest an incident of the search

Nor was apartment. persons At the time of in the the other and, arrest, in the bedroom arrestee was no their therefore, from in "the area was not the search possession might gain arrestee] [the which within of a here went the area from weapon "The search or destructible evidence.” person beyond petitioner’s

far might he have ob- within which something weapon that could or either a tained have been was no of a search against There as him. used evidence justification, in the absence constitutional extending warrant, for the search beyond California, 395 v US that area.” Chimel (1969). 752, 763, 768; 2034; L 2d 685 89 S Ct 23 Ed justify a residence does

An in arrest justifi- general There is no of the residence. searching any routinely room other cation "for or, for that in which an arrest than that occurs— 6 said: The Court ' may "only substantially it is incident to an arrest if “A search be contemporaneous the arrest and is confined the immediate with ’ California, 818, vicinity 2053; Shipley S v US 819 Ct of the arrest.” 395 [89 California, 483, (1969)]; v US 486 23 2d 732 Stoner 376 [84 L Ed 889; upheld (1964)]. L Ed 856 If a search of a house to be S Ct 11 2d house, arrest, place an arrest take inside the as incident Agnello that must States, 145; 4; 70 v 269 US 32 S Ct L Ed 51 cf. United [46 away, (1925)], two Ed 409 not somewhere outside —whether blocks ALR James Louisiana, 151; (1965)], S 30 v 382 US 36 Ct 15 L 2d [86 away, California, supra, twenty Shipley v on the sidewalk near feet or founded, 'Belief, sought steps. front however well that article the is concealed in dwelling justification a search no house furnishes States, supra, place Agnello at v of that without a warrant.’ United questioned v this Court.’ Stoner That rule 'has never been in 33. California, supra, basic Court.) (Emphasis by Vale v 5.” fn (1970). Louisiana, 30, 33-34; 1969; US S Ct 26 L 2d 409 90 Ed v Crawl searching through matter, for all the desk drawers other closed or or concealed areas in the room well-recog- searches, itself. Such in the absence of exceptions, may only nized authority made under supra, p Chimel,

of a search warrant.” 763. acknowledge

We that if the officers had reason to believe that the other robber was in the might escape, endanger the officers destroy they justified evidence, would have been entering dangers.7 the bedroom to avoid those Assuming justified then Officer Ewald was entering bedroom,8 once he determined that no justification one was in bedroom9 there was no 294, 299; Hayden, 1642; See v Warden 387 US 87 S Ct 18 L Ed 2d Block, (1967);People Rptr 281; 782 961 1972). Cal 3d 103 Cal 499 P2d (1971); Broomfield, (ED Supp Mich, United States v 336 F Compare People Olajos, 246 NW2d 828 question response In whether he had "information that the might said, apartment”, third man be in the Ewald was an "[i]t assumption that he could be there It too”. has been said protective may not search be conducted unless there is reason to present. Gamble, believe that someone else is United States v 473 F2d (CA 7, 1973); Carter, 54, App 64-65; v 173 United States US DC (1975); Solomon, Enzensperger Rep 522 F2d 676-677 v 16 Cr L (CA 29, 1974, July 73-2407, 73-2383), officially Nos not re- ported. colleague my persons, While states that "three other one of whom participant robbery murder, could have the third been in the and milling running apartment,” were conceded that running or around the small elsewhere it is they living They milling in "were the room. were or (Emphasis supplied.) people around.” The conceded that occupants apartment Crawl and the three other of the were in the living people room when Officer Ewald entered the bedroom. The did prove, indeed, they proved any not occupants and do not claim that that of the apartment milling running except the of were or around in living p 299, Hayden, supra, the room. In contrast with Warden large” when Ewald entered the no "at bedroom one was in the apartment. My colleague states situation was not "[t]he under control. The police every danger”, had reason to that believe their lives were in scope that imposed by and the limits on the of warrantless searches California, 2034; (1969), Chimel v 395 US 89 S Ct 23 L Ed 2d 685 Chadwick, supra, play and United States v "do not come into until police situation”, arrests have been made and the are in of control that potentially and those cases do not involve "uncontrolled and life (Crawl occupants opening bag. and four All

for living persons) room; in the three the other anyone danger in the was no that there any destroy bag grab it or evidence could any weapon in the contained it use of in or make apartment, bag. all four left the officers When police headquarters. occupants to were taken may "protective” searches warrantless While * ** pre- necessary "reasonably justified to when suspect large dangers in the [a] that vent the escape”, Maryland may Warden, resist house Penitentiary Hayden, 294, 299; 87 S 387 US Ct (1967), persons once all L Ed 2d 782 supervision occupying are under the residence to that is no reason believe and there control "protec- present, anyone the rationale for a else is Crawl, endangering case at bar”. like the situation situations however, was in handcuffs when Ewald en- had been arrested and Ewald, to there were at least three In addition tered the bedroom. Kelly apartment, police and two or three uni- in the officers other formed suggest Kelly policemen. Highland is to that It idle Park and did not so officers were not “control” two or three other occupants have entered none of the could the situation that dominate against the will. officers’ the bedroom robber”, been the third he was man "could have Even if other Crawl, room, living together with the two women and in the in the bedroom. When Ewald of the barber located within reach bedroom, justification there was no no one in the determined that furnishings belongings in or other a warrantless room. circumstances, exigent proving people The had the burden under control” and officers had in fact the "situation was not danger.” lives were in The officers’ "reason to believe their show, rather, testimony the bed- that when Ewald entered tends occupants apart- they represented none were in control and room evidentiary sup- any danger them. There no ment finding port were not in control. for a that the guilt probative argument evidence that the need collect dangerous justice”) ("bringing is a factor in felon the bar determining completely justification for a search is whether there warrantless history adjudication under the Fourth at odds with the of " specifically concept only 'a and the that there are few Amendment * * * exceptions’ 'jealously care- and established and well-delineated fully ” Hamp- Coolidge requirement. v New drawn’ the warrant 443, 453-455; 2022; shire, Ct 564 US 91 S 29 L Ed 2d 403 People 25 v Crawl longer tive” search10 no obtains and a further may not be conducted. bag per The warrantless search of the "plain doctrine, mitted under the the view” whether was under or on the bed. This doctrine permits warrantless searches and seizures where upon contraband, law enforcement officers come activity criminal or criminal evidence which is in "plain they of view” officers who are where have a right they Stanley to be when see the evidence. v Georgia, 89 Ct 394 US S 22 L Ed 2d 542 J.).12 (1969) (Stewart, A search and seizure are "only justified immediately apparent where it is police they them; have evidence before 'plain may view’ doctrine not be used to ex general exploratory object tend to another until emerges”. search from one

something incriminating at last (Emphasis supplied.) Coolidge v New Hampshire, supra, p 466. The doctrine "will not justify object seizure of the where the incriminat ing object apparent nature is not from the 'plain object.”13Exploratory gen of the view’ 8, supra. See cases cited in fn 309-310, Hayden, supra, pp abolishing, pur- v See Warden poses probable requirement, cause the distinction between (which seized) "mere evidence” could not be and fruits crime (which seized). contraband could be Stewart, joined White, Mr. Justice Justices Brennan grounds suppression on concurred Fourth Amendment films private majority seized in a residence. The held unconstitutional making private possession state statute obscene material crime. Objects Anno: Search and Seizure: Observation in "Plain View”, 29 L Ed 2d 1067. "protective” Evidence discovered in course of lawful searches has been held admissible where the evidence itself was visible as the suspects Block, hiding. officers searched for See v supra (plastic bag containing appearing marijuana substance to be on open jewelry lawfully entered); table and in box in bedroom United Broomfield, (guns supra drugs States visible in walk-in closet entered); lawfully and on dresser in room officer had United States (CA 1973) (machine 31, 5, Looney, gun 481 F2d 32-33 on floor under (CA 1970) bed); Briddle, (shotgun United States v 436 F2d bedroom). floor in Mich 1

26 Levin, Opinion by J. crime uncon of are find evidence to searches eral Lefkowitz, 452, 285 v US States United stitutional. (1932)14 877 To 76 L Ed fall 420; S 466-467; 52 Ct discovery plain doctrine, the view the within Coolidge v New "must be inadvertent.” evidence p Hampshire, supra, 469. bag, under or on the of the barber

The contents "plain Ewald bed, view” of Officer not in were surveyed to determine the bedroom he when present; there was robber was the other whether opening nothing the his about "inadvertent” seizing discovering the contents.15 cabinet, 14 a a of the contents of some that search The Court held justified to be as incident to was too extensive and wastebaskets desks a lawful "plain arrest, though were the furniture and wastebaskets in even arrest. time the view” the 15 plain really people the in do contend that revolver was The not reasonably expected Rather, they was to that there was case assert "[t]he view. contain issue, i.e., probable revolver”, cause. how- a police ever; probable cause the there was but whether is not whether probable magis- required cause to a to the evidence were trate submit independent determination: for his agents apparent with in this case acted restraint. Yet "It is imposed agents by inescapable that this restraint fact is the themselves, required, by They judicial oificer. were not before search, probable present commencing cause their estimate magistrate. They scrutiny by a were not com detached neutral for pelled, itself, precise during the conduct of the search observe specific they court advance order. Nor limits established in directed, ing such notify completed, had been the authoriz after magistrate absence of of all that had been seized. In the detail upon safeguards, sustained a search this Court has never ground reasonably expected of a to find evidence sole particular officers voluntarily their activities to the least crime and confined without with that end. Searches conducted intrusive means consistent 'notwithstanding unquestion facts warrants have been held unlawful ably 20, States, cause,’ showing probable Agnello United 269 US 30 v 145; (1925)], 4; S Ct 70 L 51 ALR 409 Constitution Ed [46 deliberate, judicial requires impartial judgment officer 'that the * * * * * * Wong interposed .’ between the citizen and 471, States, 9 2d US S L Ed Sun v United 481-482 Ct [83 (1963)]. emphasized again that the mandate Over this Court has requires judicial processes,’ Amendment adherence [Fourth] Jeffers, (1951)], L S Ct 96 Ed United States US [72 judicial process, without and that searches conducted outside the per approval by judge magistrate, prior the unreasonable under are se only subject specifically few established Fourth to a Amendment — Crawl Chadwick, States v supra, p In United Court, Supreme holding States United that a foot locker which had double-locked been loaded in trunk of an automobile could not be seized a warrant under either without "automobile exception”16 arrest, or as a search incident to an "Once law enforcement officers declared: have re luggage personal or other property duced im person associated with the mediately the arres control, to their exclusive tee there is no danger longer any might gain arrestee to seize a property weapon access or destroy evidence, a search of that property longer no incident of the arrest”.17 facts, analogous New

On York’s intermediate appellate suppressed court evidence upon obtained a search of a dresser drawer and a suitcase in a The closet. defendant had been arrested on the exceptions.” States, 347, and well-delineated 356-357; Katz v United 389 US (1967). 507; 88 S Ct 19 L Ed 2d 576 explained: The Court that, here, "It is true like the footlocker in issue automobiles are Amendment, 'effects’ under the Fourth and searches and seizures of subject automobiles are therefore to the constitutional standard of recognized significant reasonableness. But this Court has differences property permit between motor vehicles and other which warrantless searches of automobiles in circumstances in which warrantless searches would not be reasonable in other contexts. Carroll v United States, 280; (1925) 543; 267 US 132 S L Ct 69 Ed 39 ALR [45 790] [first recognizing exception’ requirement]; the 'automobile to the warrant 364], 881; Preston v United States US at 366-367 S [376 Ct 11 L [84 (1964); Maroney, 1975; Ed 2d L Ed 2d 367 Chambers v 777] 399 US 42 S Ct [90 (1970). Opperman, See also South Dakota v 419] 428 US (1976).” 3092; S Ct 49 L Ed 2d [96 United States v Chadwick, supra, p 12. meaning scope of the Carroll rule and the of the so-called exception requirement automobile to the warrant have continued to Chadwick, divide supra; Coolidge the Court. See United States v v Hampshire, 443; 2022; (1971); New 403 US 91 S Ct 29 L Ed 2d 564 Lewis, 583; 2464; Cardwell v 417 US 94 S Ct 41 L Ed 2d 325 17Similarly, States, 10, 13-14; see Johnson v United 333 US 68 S Ct (1948); Cooldige Hampshire, supra, pp 92 L Ed 436 v New 449- California, supra, p 761; States, supra. Chimel Katz v United He told the of heroin. arrest- possession street are "people you up want ing officers that, although held The Court apartment”. my entry and seizure warrantless people a full of plain view in room shotgun a lawful, the dresser drawer the search of was unlawful: suitcase room, the seizure thorough "The drugs and of pistol a from a dresser drawer therein closet, in a drug paraphernalia from suitcase room, persons been cleared from had after all (cf. 558, 563; Floyd, 26 NY2d

impermissible 193, 195-196; [1970]). 260 NE2d 312 NYS2d by person fear an assault with no reason to There was reach, i.e., dresser, there in the since weapon within though officer could the room. Even no one in was legally himself that no one into the closet to assure look there, hiding right he had no might harm him was who Any he therein. open the suitcase found to weapons and examine might contained in the suit- have been which persons in the certainly of reach of out case were 874, People Thompson, App Div 2d v next room.” 875; 149, 151-152 377 NYS2d the funda- embodies requirement The warrant be preceded that a search must precept mental probable of objective determination a neutral search, scope "[By- of the proper of the cause and of scope of the passing predetermination a neutral Fourth secure from search leaves individuals a of the discretion 'only violations Amendment ” States, 389 US police.’ Katz v United the (1967) 19 L Ed 2d 358-359; S Ct Court). by the (emphasis requirement are the exceptions to warrant only and are available circumscribed

narrowly (e.g., the need exigent circumstances where officers, of the likelihood destruc- arresting protect v Crawl escape) require of or of evidence tion immediate action, a neutral determination of precluding prob- scope search; cause or of the of able the "[t]here it being no was unreasonable exigency, for the this Government to conduct search without the safeguards a warrant judicial provides”. United Chadwick, supra, p States 11.

Having determined that no one was in the the might destroy endanger bedroom who evidence officers, safety justifi- officers had no opening bag seizing for its cation contents. upon sight there was If reason to evidence, officers, it contained believe after taking custody, Crawl and others into should sought a a have warrant conduct search. They have without fear their could done so safety, or anyone would destroy evi- dence. dealing with presence

"We are not search warrant formalities. The high a serves function. Absent some grave emergency, the Fourth Amendment has inter magistrate between posed police. the citizen and the was done to shield This home a safe haven for criminals nor to make the

illegal It activities. was done so objective might weigh mind the need to invade privacy right that privacy discretion in order enforce the law. The precious too deemed to entrust job whose those is the detection of crime * * * arrest of criminals. And so the Constitu requires magistrate pass tion desires ” they privacy before violate the of the home.’ States, 455-456; McDonald United 335 US 69 S (1948).18 191; 93 L Ct Ed 153 amply safety by "The officers defendant removing could have insured their premises Therefore, immediately. from the sion the the intru upstairs police brought into the rooms which the into view of the supported by any recognized excep was not of [seized evidence] Ranker, requirement.” to the warrant State v 343 So 2d tions 1977). (La, by The error inadmissible. was seized

The evidence not harmless.19 was

Ill trial, at the to sought, before and Crawl While bag, the barber his found in the evidence suppress counsel did not brief assigned appellate Appeals. the Court of question and seizure to appeal to this leave application Crawl’s answer question people’s but raised this Court and seizure and did respond on search did not appel- the failure of Crawl’s attention to our direct in the Court of question to counsel raise late Appeals. an issue that has we will not consider

Ordinarily presented level and at the trial preserved not been Appeals. Court error at the trial level Requiring preservation by impeached accomplice testimony was his self- Wilson The murder, permitted charge first-degree interest; facing he was second-degree sentenced to plead guilty murder and had been serve post-conviction recanting pertinent years; is Wilson’s 5 affidavit. also may been fruit of unlawful search confession have Crawl’s V, part See infra. and seizure. identify persons at the trial: one could not in the bar testified Pour positive;” Crawl; was not third identified Crawl said "he another shortly did if the incident had said he not know he but after at trial robber; identify was the the fourth identification witness either could testimony unequivocally only person identified Crawl. Identifi- whose Anderson, testimony is often unreliable. See cation special 172-180, are reasons NW2d 461 Unless there (i.e., long acquaintance between the witness identification to credit an defendant), point unerringly to the such evidence does not other error harmless. and cannot make defendant illegal following gun, illegally search of the barber seized guilt; bag, compelling cannot be said it evidence Crawl’s nevertheless, have, inevitably Crawl would such evidence without been first-degree A firearms examiner murder: convicted of robbery the scene of the "was recovered from one bullet testified that positively strong similarity.” very gun, other bullets "a and that two bore fired” eyewitnesses gun said that the of the four Three by one of the robbers. the one used looked like People 31 v Crawl Levin, by J. opportunity judge provides correctly to rule the trial an unnecessary retrials, avoid and to appellate provides In for review. this a record also case, preserved seizure issue was the search and evidentiary trial, record was at the before opportunity developed had an and the trial court suppress need a new trial The to is issue, evidence. to failure to raise the

not Crawl’s attributable proffer people’s of but, rather, inad- rulings by the trial evidence and incorrect missible court. requiring appellate issues first be The rule lighten Appeals presented of to the Court seeks by disposing this issues at the intermediate providing burden decision Court’s appellate level and analy- this with the benefit of the Court Appeals. judgment of the Court of sis and appellate of Crawl’s counsel raise failure appeal on issue was a the search serious seizure Appellate mistake. courts have considered illegally seized on the introduction claims based preserved was not evidence even where at the trial level where issue appears may it there be a new the evi result at a trial which different dence introduced.20

Degraffenreid, Steeneck, but not People People Crittle, Kelsey, Mich Cal 2d W Va L Ed 2d 419 89 S Ct 38 Ill at the 245 Civil ^[20] Other decisions See NW 502 and Criminal 212, 215; 2d —; trial 460; v NW2d 303 Mich v 1068; Chambers preserved 399, 203 SE2d 445 247 Mich Moore, 34 Cal level (1932). (1970); 22 L Ed 2d 227 402-403; 305 19 Mich 290 NW 384 390 may, 715, 719; 391 Mich (1958); Evidence, v Rptr See, Kaufman v United 583, 586; Maroney, this Mich 231 NE2d appeal nevertheless, (1974). also, 863; App Court 7 NW2d 120 367, (1940); People v 386 P2d 487 Josephson, 426; (1969) (issue 226 702; 399 US Wayne Rev recognizing 447, the intermediate NW 231 216 NW2d 770 173 NW2d 317 be considered on 212 449 42, Smith, L States, (1942); 1971 Annual NW2d preserved at the 54, (1963); (1967); (1929); People that error not Dorrikas, fn 394 People 196 11; State People US (1974); (1969); appellate 90 S (1973); Survey appeal 217, 354 Mich v 486, 488-489; Holmes, v Ct Thomas, v Ibarra, trial level preserved 220, People v People v Johnson, People 1975; include court); Law, fn 292 60 26 — 3; v that the failure of the trial the same reasons For suppress judge this evidence was not harmless a new trial should error,21 it said that cannot be inevitably granted Crawl would because not be first-degree at a in which murder trial convicted of suppressed.22 the evidence is regard disproportionate to the fail- It would be Appeals of as a in the Court ure to raise this issue waiver, of to treat a waiver that failure and not as prosecutor’s to it. failure to call our attention appellate presentation requiring of issues The .rule greater Appeals of is no to the Court of first dignity prohibition of un- the constitutional than If accused and seizures. an reasonable searches person’s right against protection impermissible to by can waived the care- and seizures be searches by ineptitude counsel, then, like of lessness appellate requiring principle, issues rule Appeals presented to the Court of can be first by prosecutor’s timely failure to call waived noncompliance to with this rule. our attention presentation requiring Compliance the rule with appellate Appeals Court issues first to the Accordingly, great importance to Court. we this Appeals cause the Court of could remand the to and seizure issue. for consideration search granted leave to Under the that we circumstances application appeal on all issues raised in appeal accordingly, and, should consider leave issues, issue such and that seizure argued fully briefed, at has been considered conference, consider decide we have chosen to pervasive issue.

21 See fn 19. People v ^[22] See People Degraffenreid, supra, v Garcia, pp 716, 250, 266; 718. 247 NW2d 547 (1976); 33 v Crawl

IV to permit it was error also contends Crawl Wilson, impor Howard an show that prosecutor prosecution, had admitted his for the tant witness robbery-killing pleading participation bartender, murdering and had been guilty sentenced.23 law, rule the common long-established

aAs or conviction plea guilty24 fol accomplice’s against is not admissible another lowing a trial25 person.26 23 trial, preserved Although we of error was not advert this claim appears likely to arise retrial be of it the issue is to recurring because importance. 24 (1944); 120; People, 146 P2d 346 Babb v United 112 Colo v Leech (CA State, 669, 1955); States, Pryor v 245 P 672 541 218 F2d (Fla 1966); (Okla State, App, Crim, 1926); So 2d 56 Lane v 186 Moore Jackson, (1959); 174; State, App 758 State v 270 109 So 2d 40 Ala v (1967); State, 420; (1923); 773; 215 220 Ark SW2d SE2d 236 Jackson NC 800 155 103; Gargano, 657 (1949); A State v 31 99 Conn State v (1962); People Zachery, App Pikul, Conn 187 A2d Commonwealth, (1968); Ward v Va Div NYS2d 2d (1964). 564; SE2d 293 138 (CA Zone, 5, 1936); F2d 914 Leroy of v Government Canal Frese, 289; Jackson, supra; NW2d 83 256 Iowa State v State v (1960); People State, 286; (1964); Gray 157 A2d 261 221 Md See, generally, App Eldridge, 169 NW2d 497 Law, Prejudicial CJS, p effect Anno: § 22A Criminal argument during

prosecuting attorney’s that am of disclosure trial pleaded guilty, 48 ALR2d or been convicted has other defendant has 1016,1017: persons jointly for the same are indicted "Where two or more several, separately or nature are offense which in its criminal indicted for such offense same separate growing or offenses out the circumstances, separately, the that tried fact one and are is, general pleaded guilty a has been convicted as defendant has rule, or other, competent against and satisfac- as the since inadmissible evidence against person charged tory is not one with an offense offense, against person charged necessarily with same so another the person charged commission of an offense each with the since guilt legally tending upon his show must be tried evidence innocence.” 803(22) Evidence, Rules corre- Rule of the Federal rule, guilty plea proposed Michigan provide sponding of a that impeach- except for other than the accused is inadmissible witness ment purposes. cross-examination, was about Wilson asked On police shortly rob- after the statements to his questioning purport bery; of the was hope obtain- the statements in Wilson made ing leniency. redirect, Wilson was asked On pled guilty sentenced; and been he had whether the questions people re- these were contend sponsive asked to the cross-examination testimony Wilson’s rebut the intimation that by self-interest. was motivated was limited to the the cross-examination While robbery, sequence shortly the tend- after time simply ency questions that Wilson was assisting personal but motive for had personal testifying motive for that he had also against Crawl. prosecutor circumstances, enti-

In these was implication attempt that Wil- tled to to rebut testimony motivated self-interest with son’s showing the nature concessions evidence made him. however, should, Such be full disclosure complete misleading jury.27 to avoid The disclo adequate. complete from here was far sure redirect examination was: pled guilty already?

”Q. You to this matter have "A.Yes.

"Q. You under are sentence?

"A.Yes.” pled guilty While had "in this matter” Wilson plead sentenced, and had he was allowed to been guilty than to a serious offense Crawl was less relatively then on for. Wilson had received a trial light comparison sentence in to the sentence which

27 Atkins, (1976). People 292 See 243 NW2d Crawl first-degree murder. on conviction of faced Crawl participation in the Wilson, his who admitted and, accordingly, faced conviction robbery-killing, mandatory sentence murder first-degree of parole, of was possibility in without prison life of second-degree murder guilty to plead to permitted years, of 5 to serve a term was sentenced parole approxi- in eligible him made which paroled was years. Wilson mately 3-1/2 the crime was committed. after years about questioning, that redirect implication and would not benefit not benefited had Wilson no personal and had motiva- testimony his from misleading. falsely, was testify tion sentenced, he was still had been Wilson While the parole board and jurisdiction subject greater a minimum or sentence he served whether on the authorities were part whether depended he had been "rehabilitated”. A opinion reasonably position might conclude person in his parole greater if early his chances of with the authorities cooperate by he continued against Crawl. testifying entitled inform the prosecutor

While status, should have jury true Wilson’s jury informed28 of all accurately fully been so that it could facts and circumstances pertinent testimony have may whether his properly assess self-interest. by been motivated

V a confession introduced contends that Crawl also it was in- involuntary because the trial was promises leniency beating, duced threats, tests to use ballistics including a threat People, Mich Hurd v See J. impli- the barber seized from revolver robbery-killing. him in cate hearing Following after the trial held a Walker begun, that the had been decided and after it had evidence bag had not the barber obtained from judge unlawfully seized, ruled been voluntary. was confession testimony threatened

Crawl’s gun robbery uncon tie him use the a fruit was obtained as If the confession tradicted. seizure, it must be the unlawful search suppressed.29 (see supra) part II, the trial reverse would

We and remand the search and seizure issue court on trial, such a new the of the trial. Before a new for question unlawfully was a fruit whether the confession should be reconsidered seized evidence evidentiary hearing. at an likely without merit or

The other issues are at a new trial. to arise J., J.,C. concurred Fitzgerald,

Kavanagh, Levin, with States, Wong US 9 L Ed 2d Sun v United S Ct

Case Details

Case Name: People v. Crawl

Court Name: Michigan Supreme Court

Date Published: Aug 29, 1977

Citation: 257 N.W.2d 86

Docket Number: 56294, (Calendar No. 7)

Court Abbreviation: Mich.