People v. Summers

• Decision Date: 05 August 1976
• Docket Number: Docket No. 24602
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Duane SUMMERS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 152

246 N.W.2d 152

70 Mich.App. 584

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Duane SUMMERS, Defendant-Appellant.

Docket No. 24602.

Court of Appeals of Michigan.

Aug. 5, 1976.

Released for Publication Oct. 25, 1976.

Boeschenstein, Marietti, Mullally & Grimm by William C. Marietti, Muskegon, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Richard A. Pasarela, Pros. Atty., for plaintiff-appellee.

Before BASHARA, P.J., and ALLEN and HOEHN, ^* JJ.

PER CURIAM.

On February 5, 1975, the defendant was convicted by the circuit court, sitting without a jury, of involuntary manslaughter in violation of M.C.L.A. § 750.321; M.S.A. § 28.553. He was sentenced to serve a term of imprisonment of from 7 1/2 to 15 years. Defendant now appeals as of right.

The record shows that on September 4, 1974, the head brakeman on a C & O freight train passing through Muskegon County was shot and killed. On September 5, 1974, defendant, who was evidently already suspected by police to be the man responsible for the shooting, was arrested by police on the authority of a probation violation warrant issued that date. Later, on the 5th, and the morning of the 6th, the defendant made statements which were admitted into evidence against him at trial. Neither before nor during trial did the defendant object to the use of these statements against him.

Defendant now contends that his statements were inadmissible on constitutional grounds as the product of an illegal arrest. Wong Sun v. United States, 371 U.S. 471, 491, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Ordinarily, where evidence goes unobjected to at trial this Court will not consider the propriety of its admission on appeal.

'Counsel cannot sit back and harbor error to be used as an appellate parachute in the event of jury failure.' People v. Brocato, 17 Mich.App. 277, 305, 169 N.W.2d 483, 497 (1969).

However, owing to the gravamen of the error asserted, an exception to this rule has been recognized. The rule is best set out in People v. Bukoski, 41 Mich.App. 498, 500--501, 200 N.W.2d 373, 375 (1972), where it was said:

'In People v. Degraffenreid, 19 Mich.App. 702, 173 N.W.2d 317 (1969), this Court recognized that where constitutional rights are involved, the failure to object below will not prevent us from granting a new trial where such failure is of sufficient importance that it may have been decisive. In such a case, the reasons which underlie the preservation of error rule must give way to the interests of justice and the protection of constitutional rights. This is true despite the fact that a defendant's right not to have evidence obtained by illegal search and seizure used against him may be waived by his attorney. Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965).

'Where a defendant raises a constitutional question for the first time on appeal, we must ask two questions: (1) was the evidence decisive, and (2) was the evidence erroneously admitted into evidence. People v. Gunn, 34 Mich.App. 106, 190 N.W.2d 793 (1971). In Degraffenreid, the Court found it was not necessary to determine whether the evidence was erroneously admitted since exclusion of the evidence would not have meant acquittal for the defendant.'

See also People v. Character #1, 32 Mich.App. 40, 43, 188 N.W.2d 12 (1971); People v. Dogans, 26 Mich. 411, 414, 182 N.W.2d 585 (1970); People v. Gunn, 34 Mich.App. 106, 109, 190 N.W.2d 793 (1971).

The defendant's specific allegations are that the issuance and execution of an otherwise valid arrest warrant for probation violation constituted a 'pretext' arrest and that subsequent questioning was 'contrary to the spirit and teachings of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)'. We are unable to agree with the defendant that a confession should be suppressed as the fruit of an illegal arrest where the arrest of concern was of unquestioned validity,...