*1 v O’Brien 1982]
PEOPLE v O’BRIEN 10, 1981, Docket Lansing. No. 44808. Submitted June Decided 17, February appeal applied 1982. Leave to for. first-degree Timothy E. was convicted of in O’Brien murder Court, Falahee, Jackson Circuit Charles J. J. The defendant erred, (1) alleging appeals admitting the trial court in that: evidence of statements that he made after he was in (2) custody; admitting certain the trial court erred rebuttal regarding testimony the defendant’s silence when an oificer presence gun stated in the defendant’s had been taken (3) captured; from the defendant when he was there was not support magistrate’s decision to bind sufficient evidence (4) trial; prosecutor’s deprived him over for conduct him of (5) trial; admitting a fair the trial court erred certain [1, [3] [2] What constitutes Necessity 21A Am Jur Evidence 30 Am Jur 31 Am Jur 81 Am Jur Witnesses 480. 21 Am Jur 29 Am Jur 21A Am 21A Am Jur 5 Am Jur 5 Am Jur Am5 Arizona tutional incrimination, prior 29 Am Jur 29 Am Jur 63 Am Jur Am5 81 Am Jur Witnesses 518. 5 Am Jur 21A Am Jur Jur Jur Jur rights requiring 2d, Appeal 2d, Appeal 2d, Appeal 2d, 2d, 2d, Expert trailing by dogs 2d, 2d, 2d, 2d, Appeal informing suspect 2d, 2d, Attorneys 2d, Prosecuting 2d, 2d, References 2d, 2d, Evidence 1146. Evidence 249. Criminal Law 411 et Appeal 2d, Criminal Law 951. Evidence 769. Evidence before custodial Criminal "custodial Criminal Law Criminal Law and Error 772. and Error 778. and Error and Error and Error 948 et § police interrogation. § § suspect for § §§ Law § interrogation” 378, Points in Headnotes § criminal cases. 18 ALR3d § § §§ § § §§ interrogation. rights 788 et 379. be informed of his federal consti- §§ § §§ 785, Evidence 31.§ 821, 703, 788, seq. 794. § under seq. 838. 27. 884. seq. within rule of Miranda v 10 ALR3d 1054. 791 et privilege against 31 ALR3d 565. seq. 1221. self- (6) prejudicial; requiring irrelevant and error evidence that was charge when the officer in of the case inter- reversal occurred stand; jected prejudicial while on the irrelevant and (7) admitting expert opinion testimony erred in trial court tracking persons *2 regarding in the of dew for which an inade- (8) quate laid; people improperly the foundation had been and impeached own witness redirect examination. their Held: of the statement 1. It was error to admit evidence defendant’s However, apprehended. that he was alone when such error was object harmless since the defendant failed to to such admission against overwhelming. the defendant was The the evidence holding not in the defendant’s state- trial court did err regarding guy” voluntary ment the “other was and admissible question into evidence. The officer’s routine the proscribed by Although defendant’s name was not Miranda. allowing testimony regarding trial court in the defen- erred person’s dant’s statements about the other name and behavior giving warnings, made before the of Miranda such error does person require reversal information about the because the theory was consistent with the defendant’s of the was counsel, admissible as a valid tactic of defense and was not prejudicial requiring to the defense. No error reversal occurred investigating police from the admission of the officer’s testi- mony regarding gun the defendant’s statement about the found possession testimony in the defendant’s since the was not responsive question to the asked and was favorable to the theory presented Although improper at trial. it was prosecuting attorney clearly prohib- for the to elicit evidence of requesting ited statements made the defendant after coun- sel, the error under the facts of the case was harmless. allowing investigating 2. There was error in officer testify having possession that the defendant never denied gun apprehended when he was and that the defendant re- pres- mained silent when an officer stated in the defendant’s gun that a ence had been taken from the defendant when he However, captured. light cautionary was in of the trial court’s instruction and the fact the reference to defendant’s fleeting, silence was the error was harmless. object alleged 3. The defendant’s failure to to the insuffi- ciency preliminary at the evidence examination constitutes Further, right appeal. waiver of the to raise the issue on presented preliminary evidence at the examination was suffi- cient to bind the defendant over for trial. prosecutor’s egregious deny 4. The conduct was not so as to the defendant a fair trial. admitting 5. The trial court did not in abuse its discretion v O’Brien possession in the knife defendant had into evidence. injustice did Manifest not result the admission of evidence purchased guns had two than the defendant other the one felony used in the commission of the because reference to the fleeting argument. gun closing used in was was not admitting trial court abused its discretion into a evidence shot, tape recording of the victim after he had but been this given cautionary error harmless. The two instructions jury regarding investigating testimony concerning officer’s through believed the route he defendant followed Jackson adequately any testimony prejudice. concerning avoided While package gum possession found in the defendant’s was not relevant, the trial court’s comments and defense counsel’s closing argument placed speculative testimony this in its proper perspective. Since the windshield of the victim’s car may helpful jurors understanding been have to the technical points entry particles about conical and lead properly admitted evidence. into While the additional cracking of the windshield have reduced the value of the exhibit, object ground failure and the trial court’s giving precludes cautionary finding aof instruction of error. *3 err, The court did trial not under the facts of this in allowing tracking dog testify dogs’ the handlers to to their placed properly jury actions. This evidence the before to be by weighed probative them as to its value. prosecuting attorney prepared 6. While the should have carefully, testimony chief more the witness witness’s did not interject requiring error into the trial reversal. allowing 7. The trial court did not abuse its discretion expert opinion testimony. dew on information to offer his The object at defendant’s failure to trial to the witness’s ground qualified give opinion on the that he not an to on Furthermore, appeal. proper matter waives the issue a opinion. foundation was laid to allow the witness to offer his object alleged impeach- 8. Since defendant failed to to the people by ment of their own witness redirect exami- nation, appellate review of this issue is waived absent a show- ing injustice. showing injustice of manifest No of manifest has been made.
Affirmed. J., Cavanagh, M. F. He that even if the dissented. believes majority were correct in their assessment of the of character individually, alleged the errors the cumulative effect App 113 He reverse the new would and a trial. errors mandates reversal conviction.
Opinion of the Court Interrogation. — — Rule Custodial 1. Law Miranda Criminal prosecution of a defendant’s state- not use evidence should interrogation stemming without demon- a custodial ments from privilege safeguards strating procedural to secure the use of self-incrimination; against to in- has been defined "custodial” signifi- deprived is a defendant those where clude statements interrogation held to be has been freedom of action while cant reasonably likely police to invoke practice a a know is prosecution response to use at trial. seek — Voluntary — — Mi- Statements Law 2. Evidence Criminal Rule. randa by defendant and a that are volunteered a of statements Evidence by question prompted police a defendant’s volunteered officer’s purview of the Miranda rule do not come within remark suppressed at trial. and need not be Right— Silent. Law to Remain 3. Criminal preclude object to trial will not failure Defense counsel’s alleged infringement constitu- of a defendant’s review an silent; right error whether reversible occurred to remain tional timely objection be determined of a should the absence (1) two-part application whether the error was offen- of a test: (2) system; judicial if sound sive to maintenance beyond not, a reasonable that error was harmless whether doubt. — — Law Rule Police Officers. 4. Criminal Miranda required in the officers to take unreasonable risks Police are however, opt performance duties; where the of their rights question adivisng of Miranda a defendant before him his police- questioning investigatory and occurs in a and the is police-compelled atmosphere, Miranda would dominated or responses may require that the defendant’s not be used seem against him. order build case *4 Appeal Hearing — — — — 5. Walker Statements Voluntariness Independent Determination. court, reviewing appellate
An a made at the when determination hearing, the entire record conclusion of a Walker will examine independent and make determination of the voluntariness an however, statement; court a decision of trial People v O’Brien only reviewing will be reversed where the court has a definite and firm that an conviction error was committed. — 6. Criminal Law Defendant’s Silence. accusatory
A in the defendant’s silence face of an statement by made should not be considered an admission of guilt by the defendant. Preliminary — 7. Law Criminal Examinations. challenge magistrate’s
A failure a criminal defendant prior regarding alleged decision to or trial insuffi- ciency preliminary of evidence at the examination constitutes right appeal. waiver of the to raise the issue on — 8. Evidence Relevant Evidence. having any tendency
Relevant evidence is evidence to make the any consequence probable existence of fact or more or less probable evidence; than it would be without the relevant evi- generally dence is admissible and irrelevant evidence is not admissible; relevant, even if a trial court choose to exclude ' confusion, ground prejudice, evidence on (MRE 401-403). or waste of time Admissibility. — 9. Evidence admissibility question of evidence is a that rests in the trial court’s discretion and the exercise of the court’s discretion will appeal not be overturned on unless there has been a clear discretion; objection, abuse where there has not been an Appeals the Court of should not review the admission of showing injustice. evidence absent a of manifest Admissibility. — —
10. Evidence Real Evidence purported The article must be identified as what it is to be and shown to be connected with the crime or with the accused to lay evidence, proper foundation for the admission of real although required such identification is not absolute or be certain. Tracking Dogs. — 11. Evidence Tracking-dog evidence is admissible in criminal where a cases (1) proper foundation is laid which will show that: the handler (2) qualified dog; dog to use the was trained and (3) humans; tracking dog placed accurate in on the alleged guilty party trail where circumstances indicate the (4) been; have the trail had not become so stale or contami- beyond dog’s it; competency nated as to be to follow *5 App 113 op Opinion the Court support standing a criminal
tracking-dog cannot alone evidence conviction. — Prosecuting Attorneys — Witnesses.
12. Police Officers special duty a Prosecuting attorneys witnesses have may testimony which of areas not to venture into forbidden prejudice a case. Experts — Opinion. — 13. Witnesses opinion objection of to trial Failure to make an qualified ground not witness was a on that the witness appellate question give opinion waives on the matter an ground. review on Impeachment. — 14. Witnesses impeachment allegedly improper of a object Failure testimony, precludes absent manifest review witness injustice. by Cavanagh, J. M. F.
Dissent — — Effect.- Law Errors Cumulative 15. Criminal Individual require reversal of defendant’s Individual errors may require independently to their reversal due conviction particular in a case. cumulative effect General, Louis J. Kelley, Attorney Frank J. Grant, Caruso, Edward J. General, Prose- Solicitor Wildeboer, L. and John Assistant cuting Attorney, Attorney, people. for the Prosecuting Crawford, Mardi Appellate State De- Assistant Assistant, Pilette, fender, and Jennifer Research appeal. for defendant on Cavanagh J., F. C. and M. Before: Danhof, JJ. D. R. Freeman,* trial, Following C. jury J.
Danhof, 750.316; murder, MCL first-degree was convicted imprison- to life 28.548. He was MSA sentenced eight right. and now as of Of appeals ment defendant, con- we assertions error raised * assignment. sitting Appeals by judge, Circuit the Court v O’Brien op the Court individually collectively, none, elude or neces- Therefore, sitates reversal. defendant’s conviction affirmed. is shooting from
This case arose the fatal of Lt. Department. William Nixon of Jackson Police by police The victim discovered officers who *6 dispatched Berry had been intersection County early Road and US-127 morning Jackson April Upon arriving hours of 1978. scene, the officers observed Lt. Nixon’s automo- parked pickup bile behind a truck attached to a Lo-boy carrying trailer, a Both bulldozer. doors of open, apparently, as, Lt. Nixon’s automobile were pickup both of the were doors truck.1 Lt. Nixon lying highway. was found on the shoulder Although alive, he still was was he unable to speak. Lt. a Nixon died short time later. dispatched helicopter
A scene, to the was tracking dogs and their A were the area handlers. search of
began. apprehended Defendant was in a swamp, highway. east of the
Following preliminary examination, a first-degree was bound over on two counts of mur- magistrate der. The found that there was sufficient permit premedita- evidence to a trier of find fact to ultimately tion and deliberation. Defendant was magistrate theory. convicted under this The also felony-murder charge sup- that a found could be ported because there was evidence the mur- larceny der was in the committed course of a over sum of $100. publicity surrounding Due to the an change for order a of venue was entered on No- 8, 1978, Midland, vember and the trial held in was Michigan._ conflicting testimony given point We note that on this at the hearing. and at
trial the Walker App 183 113 Mich Opinion of the Court period, a two-week spanned trial
Defendant’s The testified. numerous witnesses which that defen- of the case prosecution’s theory traveling and was dant a bulldozer had stolen by over Lt. pulled he was along highway when order prosecution Nixon. theorized Lt. Nixon. murdered avoid the defendant capture was that he had of the case theory Defendant’s to drive "Larry” named been hired a man they When truck and bulldozer. pickup Nixon, gun and shot Larry pulled stopped by Lt. he did not maintained Defendant officer. plan gun any or knowledge of have any after Defendant asserted shoot the officer. Nixon, from the scene. escaped Larry Lt. shooting conviction, ap- claim After the defendant’s remanded for a Walker This Court peal was filed. Rehearing], (People v Walker [On held on [1965]) hearing, which was NW2d 10, 1980. June on appeal. numerous issues
Defendant raises *7 to nature extremely complicated Due the at produced voluminous evidence and the case trial, they only facts will be noted significant the relate to various issues.
I the of evidence admissibility This issue concerns made to various statements In order police being custody. after taken into context, it is neces- in its put proper to this issue surround- outline some of the facts sary briefly apprehension. ing scene, William arriving troopers After handlers, Lardie, tracking dog and Bert Flowers in a investigate object spotted went green v O’Brien Opinion op the Court swamp. trooper approached When Flowers (i.e., object he could see that it was a man defen- dant) dog dog jumped and turned his loose. The defendant, who was face down in the water. Trooper Flowers handcuffed one of the defendant’s struggle during gun ensued, hands. A which a taken from the defendant’s belt. Other officers put arrived, and both handcuffs were on the defen- dant. during
Officer James Conant
testified that
struggle he struck defendant on the side of the
shotgun.
face and on the back with the butt of his
struggle.
No one else hit the defendant
swamp
Defendant was removed from the
taken across several
fields and fences. He was
highway
returned to the
custody
and surrendered to the
Sgt.
Nystrom.
Darwin
The defendant
patted
weapons.
being placed
was
in a
warnings
down for
After
given
vehicle he was
his Miranda
(Miranda
Arizona,
384 US
86 S Ct
[1966])
1602;
He was to the hearing above, As noted a Walker was held after defendant’s conviction to determine the admissibil- ity of evidence of various statements that he had police. hearing, prosecutor made to At pretrial hearing indicated that no was held be- agreed cause he and defense counsel had not use a full statement made the defendant after rights requested he was advised of his an attorney. hearing, At the conclusion of the Walker *8 the trial court ruled that statements the defendant before the Miranda from elicited
warnings
were
183
192
113 op
the Court
interrogation,
given
product of an
were not the
found that
The trial court
admissible.
were
warnings were
the
given
after Miranda
statements made
they
that
but observed
not admissible
were
prosecution’s
in chief.
case
were not used
appeal,
On
that no error occurred.
court found
that
statements
various
defendant asserts
custody
by
into
made
improperly
taken
him after he was
they
because
into evidence
admitted
involuntary
were elicited
contraven-
were
tion of
requirements
of Miranda.
Supreme
supra,
Arizona,
Court
In
v
Miranda
may
prosecution
not use statements
held
stemming
interrogation
without
from custodial
safeguards
procedural
demonstrating
the use of
against
privilege
self-incrimination.
secure the
defined to include those
has been
"Custodial”
deprived of
a defendant is
statements made where
significant
Texas,
v
394
freedom of action. Orozco
(1969).
1095;
Statements
are volunteered
a defendant
*9
People
193
v O’Brien
op
the Court
suppressed
trial,
need
if
not be
even
volun-
preceded by
teered
was not
remark
Miranda warn-
ings.
supra,
People
Miranda,
Germain,
v
91
(1979),
App 154;
Mich
Defense counsel’s failure to will not alleged infringement clude of an review of a defen- right dant’s constitutional to remain silent. occurred, Whether reversible error in the absence objection, application timely by of a is determined (1) two-part of a test: whether the error was offen- judicial system; sive to the maintenance of a sound (2) and, not, if whether that error was harmless beyond People Swan, a reasonable See v doubt. 56 (1974). App 22; Mich 223 346 NW2d appeal,
On defendant that error asserts occurred when evidence statements that made he after custody he was in was admitted. will We address only arguments those raised defendant which merit discussion. objection, testified,
A. Police witnesses without immediately after defendant’s seizure swamp, anyone defendant if was asked was with replied, opin- him. Defendant "I am In alone.” its hearing, ion, after rendered the Walker the trial court held that had elicited this state- protection ment for their own and not to incrimi- nate the defendant. The trial court reasoned that under these circumstances no Miranda
warnings required. reaching conclusion, were In trial court relied on what the "emer- termed App 183 113 Mich Opinion of the Court gency App People exception” Toler, 45 v found (1973), People v 156; 206 NW2d (1969). App Ramos, 515; 170 NW2d 17 Mich Coppernol, 745; 229 See also argues appeal, NW2d On wrongly cases Ramos the Toler and decided. police that her Ramos, told
In wife *10 gun, a her, that he had husband had threatened and going specific bar. Police he to a defendant where the went that bar and asked to replied gun it in his that was belt. was. Defendant gun were held and the Defendant’s statement Citing Terry Ohio, 1; 88 392 US S Ct v admissible. (1968), found that 1868; L Ed 889 this Court 2d police obligation to warn defendant of had no rights taking gun his constitutional before they that defendant because had reason to believe dangerous. was armed and again exception Toler, found In this Court an question police a that was Miranda when asked safety. There, their for based on concern gun purse carrying ran and a as he was seen screaming gave chase, from Police or- woman. stop in dered him to and shot him the arm when he when to do Defendant was handcuffed and failed so. gun they
police could not find the asked that he defendant where was. He answered dropped gun it when he was was subse- shot. quently found. Evidence of the defendant’s state- ment was held admissible.
We the result arrived at Ramos believe police At time the defen- is correct. asked only gun they was, in Ramos had dant defendant’s wife’s information on which where rely. v O’Brien Opinion of the Court They obligated cautiously to act to determine had, fact, if a crime point, police been committed. At that engaging
were not in "custodial inter- rogation”, applicable. so Miranda would not be We holding in note that Ramos is similar to that jurisdictions. e.g., See, arrived at in other United (CA 1979), People Harris, States v 611 F2d 170 Huffman, 29; NY2d 390 NYS2d 359 NE2d
Although we conclude that the Ramos case result, reached the correct holding we are troubled Toler, in Toler. In the defendant was in custody questioning at the time of and there was no doubt that a crime had been It committed. appear police questioning would that the was done purpose safety for a dual their own and to —for incriminating Arguably, elicit information. under responses Miranda, the defendant’s were inadmis- sible. suggest
We do not mean to
do not
right,
protect
have the
themselves,
order to
question
weapon
a defendant about a
or an accom-
*11
plice prior
giving
warnings.
to
him his Miranda
required
Police officers are not
to take unreason-
performance
able risks in the
of their duties.
police opt
question
However, where the
dant, before
to
a defen-
advising
rights,
him of his Miranda
questioning
investigatory
and the
is
and occurs in
police-dominated
police-compelled atmosphere,
a
or
require
Miranda would seem to
that
the defen-
responses may
dant’s
not be
used
order to build
against
People Hooper,
a case
him. See
85 Mich
App 217, 219;
statement that alone was However, also that this error harm- we find that, stand testified less. took the and Defendant answering question as in alone, to whether he indicating Larry was not with
he was swamp. Furthermore, him in in cross-examina- police officer, tion of the defense counsel elicited that police not defen- officers did know whether being dant’s about alone meant he was statement merely swamp or he alone had been light night. In alone the entire of the defendant’s overwhelming object failure against evidence defendant, admission of defendant’s require that he alone statement does reversal. objection, police
B. Without officer testified being swamp that while out of the led defendant inquired caught. guy” whether the "other had been response question police
In to this inquired guy, as to what other and defendant then person. Following hearing, described a the Walker the trial court initiated the held response conversation any was not questioning by Under the au- officers. *12 197 v O’Brien Opinion of the Couet thority supra, Laffew, the trial court held that requirements of Miranda had not been vio- lated. argues appeal, defendant that the trial court
On finding defendant’s statement volun- erred disagree. Although police gave officers teered. We conflicting testimony at the Walker somewhat hearing as to whether the statement was volun- teered, the form of defendant’s statement indicates responsive. it was not Under the facts this case, finding do we not find trial court erred voluntary the statement was admissible. Sgt. objection, Nystrom trial,
AtC. without testi- gave fied that before he warnings, the defendant Miranda inquired he as to the iden- tity. Defendant stated that he was "Richard O’Brien”. Defendant was then informed that an Timothy Ohio driver’s license for a had O’Brien been found at the scene. Defendant then stated Timothy that he was and that Richard was his that he and his explained brother. Defendant brother used each other’s names.
Defendant claims that when he was
asked
therefore,
police custody
that,
name
he was in
question
this
was in the nature of a custodial
interrogation
reject
in violation of Miranda. We
argument.
Under the facts of this
we
Sgt. Nystrom’s
question
find
routine
proscribed by
defendant’s name is not
Miranda.
Landrum,
555;
See State
664
Ariz
544 P2d
(Ind
(1976),
1978),
App,
State,
Holt v
In the of Miranda absence testimony However, into evidence. to admit this Larry was consistent with the information about theory was admissible as defendant’s preju- counsel, and was not valid tactic of defense to No error dicial the defense.2 reversible occurred in its admission. Sgt. Nystrom anything, what,
E. if he was asked Sgt. at the Police did with defendant Nystrom replied, State Post. objection, without he searched defendant and found four live rounds of pocket. Sgt. Nys- in the ammunition trom went on to defendant’s testify had told that defendant gun, him, scene, at the he hadn’t reloaded the opened gun’s cylinder, that he hadn’t he hadn’t touched the to and that
gun Larry handed since appeal, argues him. On defendant testimony highly We note that admission of this favorable allowing A into the defense. evidence, valid trial tactic have existed objection, without all of made the statements prior receiving warnings, Miranda in order to admitted. These his assure pre-Mi Larry defendant’s about statements were trial, statements, along testimony with own at randa defendant’s only Larry evidence that a existed. v O’Brien Opinion of the Court investigative questioning. involved Sgt. Nystrom’s true,
While this is answer was not responsive question to the asked and was favorable presented theory trial. at No revers- occurred in its admission. ible error parties agreed before trial that evidence F. The given defendant was of statements made after requested warnings and he an Miranda after had attorney trial in the would not be admitted prosecution’s However, direct case chief. Sgt. Nystrom, prosecution examination of whether business route US-127 was well asked *14 through Sgt. Nystrom replied Jackson. marked that he had a it was and went on to state that police post at conversation with defendant During Jackson. cross-exam- about the route out of ination, Sgt. Nystrom volunteered information and defense counsel about defendant’s statement inquired gave description that defendant about the prosecution Larry. examination, On redirect Sgt. Nystrom defendant had said asked what the through the route Jackson. There was no about testimony. objection, Miranda, At based on to this hearing, trial the conclusion of the Walker by correctly court defendant sible found that no statement made requested lawyer he was admis- after prosecution’s However, case in chief. finding the trial court erred in of defen- none requested dant’s statements made after he a law- yer prosecution’s in chief. were used case We must now decide if the use of defendant’s statements error. constitutes reversible
Although improper prosecution for the was clearly elicit inadmissible statements made requesting counsel, find that defendant after we error, harm- under the facts of this App 183 op the Court established clearly less. Four witnesses prosecution of Jackson City presence defendant’s Sgt. Nystrom’s 1978. April about 1 a.m. statements defendant’s about defen- did not contradict placed him in Jackson had than these witnesses effectively dant more any have could Moreover, statements done. Harris, su- purposes. impeachment been for used sta- at the pra. The statements were made and a blan- coffee given tion after defendant not interrogation was him. The help ket warm in- statements were long. Defendant’s overly impeach- for could have been used voluntary purposes. ment of his
G. Defendant
argues that some
statements
purposes
they
for all
because
suppressed
should be
Jersey
See New
v
involuntary.
were coerced
Portash, 440 US
1292;
Ct
59 L Ed 2d
99 S
Arizona,
385; 98 S Ct
v
(1979),
437 US
Mincey
(1978).
Court must
2408; 57 L
2d 290
This
Ed
indepen
record and make an
examine the entire
of voluntariness.
dent determination
Scanlon,
186;
II prosecution’s portion During the rebuttal during prosecution elicited, re-examina- case, the Sgt. Nystrom, denied never that defendant tion of appre- gun having possession he was when when remained silent that defendant hended presence, that a stated, in defendant’s an officer gun he was defendant when taken from had been testimony. objection captured. to this was made No jury sua However, the trial court cautioned say right sponte not to had the that defendant anything. complained-of agree that the with defendant
We the rule announced violated rebuttal 190 Bobo, Mich NW2d v 802(d)(2)(B). (1973), Compare, People v in MRE (1981). Defen- Cole, 483; 307 NW2d accusatory of an state- in the face dant’s silence by police an admission cannot be considered ment light guilt. However, of the trial court’s cautionary refer- the fact that instruction and fleeting, find we to defendant’s silence was ence People Dixon, 84 the error to be harmless. See App 675; 270 NW2d Ill there was not sufficient Defendant asserts support magistrate’s decision evidence to him trial. bind over for magistrate’s challenge
Defendant did failure to court level. This decision at the trial object, alleged prior trial, to or preliminary insufficiency exami- of evidence at the right raise this constitutes waiver of nation *16 App 183 113 Mich 202 op Opinion Court Carter, App 101 Mich People v appeal. issue on Miniear, 8 v People (1980), 529; 624 300 NW2d (1967), lv den 380 222 591; Mich 155 NW2d App Willis, v 1 People (1968), Mich 758 Mich 693 lv den (1965), 377 723 NW2d pre evidence In have reviewed we any find examination preliminary sented over for defendant to bind it was sufficient trial.
IV conduct prosecutor’s Defendant asserts of this support In a fair trial. him of deprived assignments a number he raises contention error. error did some defendant agree with
We instance, improper it was trial. For at the occur relationship with about questions ask Bouchee, 400 Mich People v See girlfriend.3 (1977). However, we also 253, 268; 253 NW2d statements of instances note that in a number by followed were by prosecution made counsel. In other instances defense objections by by made requested they were rulings when Furthermore, errors alleged some of the the court. merit. For are without appeal simply raised prose- for the legitimate it was example, perfectly offi- from opinion testimony cutor to elicit cers, regarding helicopter pilot, such as the in the crime. persons number of involved are the record and carefully We have reviewed so prosecutor’s conduct was not convinced girlfriend no made to defendant’s The first time reference was objection to objection questions was met an was made. The second reference objection no was sustained and about "marital status”. The testimony. reference was made to this further People v O’Brien op the Court deny egregious a fair trial. See DeLano, 568-569; 28 NW2d *17 (1947). 909
V challenges the admission In defendant this issue argues evidence He of certain evidence. prejudicial not have and should was irrelevant and jury. to the been submitted having any ten- is "evidence Relevant evidence any dency fact of conse- make the existence of probable probable quence it or less than more MRE 401. Rele- the evidence”. be without would vant evidence generally admissible; irrelevant is relevant, MRE 402. Even if a trial is not. evidence court exclude evidence on the choose to ground prejudice, confusion, or of time. waste ques- admissibility of evidence is MRE 403. The in the trial court’s discretion tion that rests not the court’s discretion will be the exercise of unless there has been a clear abuse overturned App Strickland, 78 Mich v that discretion. (1977). 40, 54; 259 232 there has NW2d Where objection, been an this Court cannot review showing of mani- admission of evidence absent a App injustice. People Sands, 82 Mich 35- fest v (1978). 36; 266 NW2d will claims of error We address defendant’s the same order as raised defendant. knife
A. defendant was arrested a was When possession. trial, Before found arguing keep moved to that it had no connection with the case. the knife out of evidence Defendant objected into later to its admission evidence. App 113 Mich Opinion op the Court lay proper To for the admission foundation as evidence, real must be identified the article purported con- what and shown to be to be is accused, al- nected though the crime or with with required to be is not such identification People Rojem, absolute 452, certain. or In this there 458; 297 NW2d question of the knife. is to the identification no argues into evidence its admission Defendant posses- prejudicial highly and that his mere inadequate the knife to make sion of the knife relevant. disagree. undertook The fact that defendant We pur- presumably unlawful to pose a truck for a drive (a weapons armed with two and did so while knife) determining *18 gun in was relevant pos- premeditation Defendant’s and deliberation. prosecution’s supports the session of the knife theory weapon, if that defendant intended to use a night. carry plan necessary, The out his for admitting its in trial court did not abuse discretion this evidence. Sgt. Nystrom examination,
B. stated On direct among found, that he searched defendant he when things, guns. prose- other cutor two bills of sale for The
interrupted stating, testimony, "You go objection don’t have to was made to this into all that stuff’. No
testimony. purchased two Evidence that defendant had (other guns than the one used in the commission felony) arguably, was, not of the irrelevant and probative purchased or whether defendant weapon. However, fired the murder the reference fleeting informa- to these bills of sale was and this closing argument. not in Little tion was used People v O’Brien Opinion op the Court prejudice any occurred and we do not find mani- injustice. fest part police procedure,
C. As of standard a re- cording of Lt. Nixon’s communications to emer- dispatch gency tape was made. This included a call asking help stating Nixon, from Lt. for that objected he had been shot twice. Defense counsel grounds to its admission on the it was cumu- prejudicial proba- it lative and that was more than prosecution argued tape tive. The was probative it because showed the number of times shot, Lt. Nixon had been which was relevant in determining killing premeditated. whether the was prosecution argued tape also that the showed elapsed how much time the incident. The tape noting trial court allowed the into evidence "startling it contained a statement” —holler- ing by the victim after he had been shot. tape justified
Admission of this could not be ground established number of times the victim was shot as this issue. a matter
Moreover, number times Lt. Nixon had been shot was shown of the pathologist.
Although tape may probative have had some establishing elapsed value how much time dur- ing greatly incident, this value lessened portion tape that a played was deleted when it was *19 jury,
to the and it is not certain how given actually accurate the time frame to them jurors telling way Moreover, was. the had no of when the victim first made radio contact with emergency dispatch. If initial contact was made stopped, well before the defendant was this time greatly expanded. frame could have been op the Court considerations, the find that we Given these outweighed by tape probative its value prejudicial trial court abused the and effect admitting tape, or at least the its discretion "startling containing portion statement”, the this However, conclude that into we also evidence. error was harmless. Sgt. Nystrom separate occasions,
D. On three attempted defen- a route he believed to describe through this Each time Jackson. dant followed testimony objected, given, and the Cautionary objection instruc- the was sustained. given on two occasions. tions were any request of the testi- did not Defendant any mony of further In the absence be stricken. cautionary requests time, the two instruc- at preju- given any jury adequately avoided tions dice. spearmint gum, package Wrigley’s and A of
E. change, his were found defendant after some into items admitted evidence. arrest. These Sgt. Nystrom investiga- part that as of testified gum gas machine tion he station with a located change. quarters gave nickel in that This machine took and type gum distributed same objected that found on defendant. Defense counsel grounds irrelevancy testimony this on the prosecutor trial cautioned the court speculative put testimony jury. before gum concerning testimony package While relevant, much of was not defense counsel allowed failing object into record trial court’s comments outset. The *20 People v O’Brien Opinion of the Court closing argument placed defense counsel’s speculative testimony proper perspective. in its sought
F. Defense counsel to bar admission of arguing vehicle, the windshield of the victim’s that prejudicial probative. it would be more than prosecution argued that the windshield neces- sary to show where the shots had been fired to the relation vehicle. acknowledged
The trial court the wind- prejudicial effect, shield had some but reasoned outweighed probative this was its value. The court also noted that suffered some additional the windshield had
breakage as it was re- moved from the vehicle and as it was carried back and forth to court. The windshield was admitted understanding into evidence with the it had being cracked while removed from the vehicle. may helpful Since the windshield have been jurors understanding testimony technical points entry particles, about conical and lead properly admitted into evidence. While the cracking additional of the windshield have exhibit, reduced the value of the the failure to object ground giving on this and the trial court’s sponte cautionary precludes sua a instruction finding of error. Along helicopter, tracking dogs
G.
with the
dispatched to the scene of the murder. After a
proper foundation had been laid for admission of
tracking-dog
Harper,
evidence, see
(1972),
Mich
mony
508;
was elicited that the had one prose- scent at the scene—that of defendant’s. The sought cution then to introduce that the App 183 Opinion of Court Defense scent. had find a second dogs failed to counsel objected. trooper Patrick proof
An offer of was made Zeke, handler, dog, Darrow, dog testified *21 an- return and track could track one scent cement, tracking on admitted that other. Darrow that difficult and could be highway, such as past. Darrow stated in the dog had missed scents attempted to handlers had dog that two other US-127, but highway side of track on the west efforts, pick not hounds, did dogged despite their up a scent. he although would not
The trial ruled that judge was no testify to there dog allow handlers he would highway, west side of scent on the the dogs. to the actions of allow as for to draw jurors court reasoned hearing own conclusions after about their dogs’ actions. handlers, dog who had been
Subsequently,
two
as
their
testified
to
present
dogs,
at the scene with
actions,
dogs’
pick
and the
to
dogs’
inability
their
These
up
highway.
a scent on
west side
of,
admitted that
knew
or assumed
troopers
they
been,
dogs
there had
their
instances where
up
past.
missed
a scent in the
picking
had
dogs
Defendant contends that since the
track,
inability
on the
of their
placed
evidence
find a track should not have been admitted be-
no
foundation had
laid.
proper
cause
been
admissi-
Tracking dog
recognized
evidence is
ble
conditions
only under
the limited
discussed
only
corroborating
when other
Harper,
supra, and
People v O’Brien
Opinion op the Court
McPherson,
presented. evidence
is
341, 346;
Mich App
Despite potential prejudice flow evidence, tracking-dog from we do not think that erred, the court under the facts of this allowing dog handlers testify as their dogs’ actions. This evidence was properly placed the jury weighed before to be them as to its probative value.
VI *22 Defendant claims that error reversible occurred when the in charge, Sgt. officer inter- Nystrom, irrelevant jected and while prejudicial testimony on the stand. recognized prior
We have
on
pros-
occasions that
police
ecutors and
witnesses have a special duty
to venture
into forbidden areas of testimony
may
Thus,
which
prejudice a defendant’s case.
for
example,
police
where a
improperly
officer
refers
to the fact that a defendant has
or
been convicted
charged
crime,
with a
required.
reversal
be
(On Remand),
v McCarver
12;
(1978),
273 NW2d 570
People McCartney,
Mich App
Since defendant failed to to the object impeach- trial, ment appellate review of this is issue showing waived absent of manifest injustice. Alexander, (1977). Assuming NW2d there was error in the admission of this testimony, no showing manifest has injustice been made. This is case White, from People v distinguishable 482; 257 NW2d
Affirmed.
D. Freeman, J., R. concurred. Cavanagh,
M. F. (dissenting). J. I dissent from the majority’s conclusion that the numerous errors which occurred the trial below do not mandate and a reversal new trial. Miranda
Statements made before warnings given were the product interrogation custodial should have been suppressed. Reference statements that were be conceded to inadmissible improper thereafter was and constituted reversible regarding error. The elicitation of information *24 J. F. Dissent M. Cavanagh, an accusation in the face defendant’s silence The overzealousness error. constituted reversible prosecutor denied his chief witness Er- reversal. and mandates a fair trial .of the ror in the admission also occurred persuaded dispatch tape. that error I am also negative allowing jury draw occurred dog handlers from the inferences pick up dogs inability a scent. of their as to the my correct in to be are deemed Even if brothers foregoing character of of the their assessment persuaded individually, I still am errors complained-of man- errors cumulative effect a new trial. reversal and dates