People v. Bradley

• Decision Date: 25 October 1966
• Docket Number: No. 542,No. 3,542,3
• Citation: 4 Mich.App. 660,145 N.W.2d 390
• Parties: PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Leon H. BRADLEY, Defendant and Appellant. Cal
• Court: Court of Appeal of Michigan — District of US

Page 390

145 N.W.2d 390

4 Mich.App. 660

PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Leon H. BRADLEY, Defendant and Appellant.

Cal. No. 542.

Court of Appeals of Michigan, Division No. 3.

Oct. 25, 1966.

David Vander Ploeg, Ryan, McQuillan & Vander Ploeg, St. Joseph, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, John T. Hammond, Pros. Atty., Berrien County, St. Joseph, for appellee.

Before HOLBROOK, P.J., and FITZGERALD and GILLIS, JJ.

HOLBROOK, Presiding Judge.

Defendant was tried and convicted of the crime of breaking and entering in the nighttime with intent to commit larceny ¹ before a jury in the circuit court for Berrien county, October 5, 1964, and sentenced to serve 5 to 10 years in the State's prison, November 6, 1964. Defendant thereafter made a motion for a new trial which was denied by an order filed December 21, 1964.

Defendant has taken this appeal from the conviction and sentence and from the order denying a new trial, raising the following questions for review: (1) Whether admissions made by defendant immediately after his arrest should have been received in evidence. (2) Whether the people's exhibit 2, a pair of gloves, were illegally seized and should have been denied admission into evidence. (3) Whether the verdict was contrary to the great weight of the evidence properly received. (4) Whether the court erred in instructing the jury.

The pertinent facts of the case appear to be as follows: Defendant was charged with breaking and entering the Lake Michigan College Bookstore located in Benton Harbor, Berrien County, Michigan, on July 25, 1964, late in the evening. Defendant had a preliminary examination and appointed counsel represented him therein as well as at the trial. Witness Paul Hicks testified that he heard a window breaking while he was standing on a bridge, some distance west of the Lake Michigan College Bookstore, that he investigated and observed the defendant in the building and also saw him set a typewriter and adding machine (People's exhibits 1 and 3) outside of the building, and that he called the police. Two Benton Harbor police officers arrived a few minutes later and almost immediately arrested the defendant who was walking a short distance east of the building. Shortly after the arrest, investigation revealed that a typewriter and adding machine had been placed immediately outside a door on the west side of the bookstore building. At the time defendant was arrested, he was wearing a pair of gloves which were later introduced at the trial without objection as exhibit 2. A search of defendant's person revealed nothing belonging to the Lake Michigan College Bookstore. The two arresting officers were joined by a detective from the Benton Harbor police department and the defendant was immediately questioned. The officers testified that he had admitted to them at that time that he had broken a window in the rear of the bookstore and then showed the detective and one of the officers the broken window. This testimony was admitted without objection.

Defendant raises for the first time objection to the admissibility of the admissions made to the detective and the police officers, claiming that he was not informed of his right to counsel at the time. He further claims that the matter should be returned to the trial court for a Walker hearing, in accord with People v. Walker (1965), 374 Mich. 331, 132 N.W.2d 87.

The record discloses that counsel for defendant cross-examined the detective and the officers but did not raise any issue as to the admissibility or voluntariness of defendant's statement or confession.

In the case of People v. Jury (1966), 3 Mich.App. 427, on pp. 434, 435, and 436, 142 N.W.2d 910, on p. 914, we stated as follows:

'The cases of Jackson v. Denno (378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205), and People v. Walker ((On Rehearing) (1965), 374 Mich. 331, 132 N.W.2d 87), are authority for the rule that the defendant may object to the use of an alleged involuntary confession and must have a fair hearing and a reliable determination on the issue of voluntariness, not influenced by the truth or falsity of the confession. In Michigan the hearing must be had in the absence of the jury and admissibility determined by the judge on a separate record. If found to be voluntary, it is admitted, and the jury's consideration limited to its weight and credibility. If found to be involuntary, it is suppressed. These cases are obviously not applicable here, for defendant was given every opportunity to object to the statement or to raise an issue as to its being involuntarily given.

'Our Supreme Court presumes evidence admitted was lawfully admitted where no proper objections were made at the trial. People v. Robinson (1955), 344 Mich. 353, 74 N.W.2d 41.

'In Escobedo v. State of Illinois (378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977), defendant's attorney was refused admittance to where defendant was being questioned prior to arraignment. Under those circumstances and without being advised that he could remain silent, defendant made incriminating statements which were admitted on the trial of the case. On appeal, the United States Supreme Court ruled that this was a denial of due process under the Sixth Amendment to the Federal Constitution made obligatory upon the States by the Fourteenth Amendment. The facts under the Escobedo Case are not analogous and therefore not applicable. Issues not raised in the trial court cannot be raised on appeal.

People v. Matteson (1937), 280 Mich. 218, 273 N.W. 454; People v. Hallman (1941), 299 Mich. 657, 1 N.W.2d 28.'

What we...