243 N.W.2d 665 (Mich.App. 1976), 20352, People v. Triplett

Docket Nº:Docket No. 20352.
Citation:243 N.W.2d 665, 68 Mich.App. 531
Opinion Judge:Before BASHARAand KAUFMAN and WALSH, JJ
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Lee TRIPLETT, Defendant-Appellant.
Attorney:[68 Mich.App. 533] James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant. Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief, Detroit, for plaintiff-appellee.
Judge Panel:Before BASHARA, P.J., and KAUFMAN and WALSH, JJ.
Case Date:April 16, 1976
Court:Court of Appeals of Michigan
 
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Page 665

243 N.W.2d 665 (Mich.App. 1976)

68 Mich.App. 531

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Joseph Lee TRIPLETT, Defendant-Appellant.

Docket No. 20352.

Court of Appeals of Michigan, Division No. 1.

April 16, 1976

Page 666

Released for Publication July 16, 1976.

Leave to Appeal Denied Aug. 18, 1976.

Page 667

[68 Mich.App. 533] James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief, Detroit, for plaintiff-appellee.

Before BASHARA, P.J., and KAUFMAN and WALSH, JJ.

WALSH, Judge.

Defendant was originally charged with the first-degree murder, M.C.L.A. § 750.316; M.S.A. § 28.548, of Ulysses Thornton. The victim, a store guard, was one of three fatalities resulting from a shooting affray which took place [68 Mich.App. 534] during the attempted holdup of a neighborhood grocery store in Detroit on July 30, 1971. On December 15, 1971, Recorder's Court Judge Henry Heading accepted the defendant's plea to second-degree murder, M.C.L.A. § 750.317; M.S.A. § 28.549. He was thereafter sentenced to a term in prison of from 45 to 60 years.

On May 22, 1972, Judge Heading vacated that plea and granted defendant's motion for new trial because the defendant had been insufficiently advised of his constitutional rights during the plea taking. See People v. Jaworski, 387 Mich. 21, 194 N.W.2d 868 (1972). Defendant's motion for a reduction in the charge to second-degree murder was denied by Recorder's Court

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Judge John Murphy. On appeal to this court, however, an unpublished order was entered pursuant to People v. McMiller, 389 Mich. 425, 208 N.W.2d 451 (1973), remanding the case for trial on the reduced charge. 1 On February 7, 1974, a jury found defendant guilty of second-degree murder and thereafter defendant was sentenced to life imprisonment. He now appeals as of right raising several issues relating to the conduct of the trial.

I.

On the second day of trial the defendant requested that a new preliminary examination be conducted on the ground that he had just recently learned that the information had been amended to reflect the reduced charge of second-degree murder. The information had previously charged first-degree murder.

We uphold the trial court's denial of that request[68 Mich.App. 535] inasmuch as defendant himself had actively sought the reduction in charge prior to trial, and in fact the record reflects a waiver of any objection to the proposed amendment at the very beginning of trial. Moreover, even without the amendment, a charge of first degree murder ipso facto apprises the accused that he must defend against the lesser included offense as well. See People v. Paul, 395 Mich. 444, 236 N.W.2d 486 (1975).

II.

A suppression hearing was held on December 14 and 15, 1971, to determine the admissibility of testimony relating to a revolver seized by police officers at the time of defendant's arrest. Defendant contends that this testimony was improperly admitted at trial because the weapon itself was the product of an illegal search and there was no showing that defendant was 'connected' with the revolver.

On the evening of August 8, 1971, the automobile in which defendant was a passenger was stopped by two patrolmen for a traffic violation--specifically, excessive smoke and noise, for which a citation was later issued. Officer Godor testified at a suppression hearing held December 14 and 15, 1971, that as he approached the passenger's side of the automobile he looked inside and saw a portion of a revolver protruding from the arm rest between defendant and the driver. The defendant was immediately arrested.

From these and other facts adduced at the hearing the trial judge determined the existence of probable cause justifying seizure of the revolver. It is our responsibility to preserve that finding unless we are convinced from a review of the record that the trial court's conclusion was clearly erroneous. [68 Mich.App. 536] People v. Bunker, 22 Mich.App. 396, 404, 177 N.W.2d 644 (1970), see also People v. Smith, 19 Mich.App. 359, 367--368, 172 N.W.2d 902 (1969). We are not so persuaded in the instant case. It is well settled that 'seizure of objects within the plain view of an officer, lawfully in a place where he had a right to be, are not proscribed by the Constitution'. People v. Whalen, 390 Mich. 672, 677, 213 N.W.2d 116, 119 (1973); People v. Kuntze, 371 Mich. 419, 124 N.W.2d 269 (1963). There was sufficient evidence in the instant case to support a finding that (1) officer Godor had a right to be positioned at the side of the automobile in which defendant was riding, having lawfully stopped the driver of the car for a traffic violation, and (2) that the weapon seized was at least partially in plain view. Therefore there was no search for purposes of Fourth Amendment analysis, U.S.Const. Am. IV; Const. 1963, art. 1, § 11. People v. Kuntze, supra, 425--426, 124 N.W.2d 269; People v. Whalen, supra, 390 Mich., 677, 213 N.W.2d 116.

The second argument concerning the admission of gun-related testimony 2 is

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that the weapon itself was irrelevant because of a lack of evidence 'connecting' him to the seized revolver. Determination of the relevancy of proffered evidence is committed to the discretion of the trial judge; an appellate court should refrain from disturbing such rulings absent a finding of clear abuse of discretion. People v. Howard, 391 Mich. 597, 603, 218 N.W.2d 20 (1974). We find no clear abuse of discretion in the instant case. The testimony relating to the weapon was manifestly relevant...

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