People v. Carroll

• Decision Date: 21 April 1976
• Docket Number: No. 8,8
• Citation: 240 N.W.2d 722,396 Mich. 408
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas W. CARROLL and Charles Louis Ross, Defendants-Appellants.
• Court: Michigan Supreme Court

Page 722

240 N.W.2d 722

396 Mich. 408

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas W. CARROLL and Charles Louis Ross, Defendants-Appellants.

No. 8.

Supreme Court of Michigan.

April 21, 1976.

E. Brady Denton, Saginaw County Prosecutor, by Peter C. Jensen, Asst. Pros. Atty., Saginaw County, Saginaw, for plaintiff-appellee.

State Appellate Defender Office by Steven L. Schwartz, Asst. Defender, Detroit, for defendants-appellants.

LINDEMER, Justice.

Defendants were apprehended in an early morning arrest following a police-interrupted attempted removal of two snowmobiles from the premises of a machinery company. A jury subsequently convicted them of breaking and entering with intent to commit larceny. M.C.L.A. § 750.110; M.S.A. § 28.305. The Court of Appeals affirmed as do we.

Defendants first claim that certain testimony offered at trial must be suppressed because it was the result of an illegal arrest. This was a warrantless arrest by officers who had not witnessed the crime but acted upon a police radio bulletin resulting from the combined intelligence of several investigating officers. The bulletin requested the apprehension of a described vehicle following a predicted route and containing two women and three men. Moments after the dispatch, defendants were apprehended in a car matching the described vehicle, traveling the predicted route, and containing two women and three men.

The police officers who stopped defendants' vehicle testified concerning descriptions, identities and other observations. Defendants seek to suppress this testimony. The prosecution argues that the police were justified in stopping the vehicle and questioning the suspects and therefore their testimony is admissible. We need not reach the merits because we find that this issue was not preserved for appeal. Defense counsel failed to make any objection to the testimony of the police officers on this basis. Additionally, no suppression motion was ever made. A motion to suppress evidence must be made prior to trial or, within the trial court's discretion, at trial. People v. Ferguson, 376 Mich. 90, 135 N.W.2d 357 (1965). Such a motion allows the trial judge to make the initial determination and serves as a means to finely tune the facts for appellate review. It is improper to review this issue.

Defendants' second allegation of error is that the trial court acted improperly in making inquiry into suspected tainting of the jury's impartiality. The inquiries were all conducted in chambers in the presence of the prosecutor and all defense counsel, but defendants were absent. There was no objection made and no request that defendants be present.

The first inquiry involved a charge by defense counsel that a conversation involving a prosecution witness or witnesses and one juror was had in the hearing of a second juror. The court summoned the witness, who said that the subject matter of the conversation did not concern the instant case, that no juror had participated in the conversation, but that he did not know whether either juror had heard any part of it. A second participant in the conversation also stated that no juror had participated, but thought that one juror appeared to be listening. The court then offered to question the two jurors, but defense counsel responded negatively. At that time defendants had not used all their peremptory challenges, and although they subsequently did so, no challenges for cause against these two jurors were attempted. Both jurors participated in the verdict.

A second inquiry occurred shortly after opening statements when one of the jurors voluntarily indicated that he was acquainted with one of the witnesses. Again the trial judge conducted an inquiry in chambers with all counsel present and again no challenge was made to the juror (who also participated in the verdict).

Defendants place reliance upon People v. Medcoff, 344 Mich. 108, 73 N.W.2d 537 (1955). It is reliance misplaced. In Medcoff, the court examined the jurors in the absence of defendants and their counsel. The test in Medcoff is whether or not the absence of the defendant during the inquiry abrogated the rights of defendant to exercise those privileges which could have been exercised had he been present. This is a test which does not involve defendant's physical presence if his counsel is there representing him, for under those circumstances, there are no rights held by the defendant which his presence would have afforded him that his counsel cannot exercise in his absence. Applying that test here, no error is demonstrated.

The juror involved on the other occasion (#5) was excused and therefore no error will lie. People v. Fountain, 392 Mich. 395, 221 N.W.2d 375 (1974). In this case, at the conclusion of all proofs the jury was excused and the court in the presence of the defendants and all counsel asked:

'Is there anything further before we recess.'

At that point, counsel for defendant Ross moved that juror #5 be excused. After discussion of the motion the court granted it, saying:

'This will leave still thirteen jurors and all appear to be well legally qualified for their role as jurors. In other words, there could be no possible prejudice to either the People or the Defendants in the excusing of this one juror * * *.'

The court again asked counsel if there was anything further, and pursuant to the request of counsel for defendants Carroll and Ross, the decision of both of those defendants to remain silent and not testify was placed on the record. However, given the chance to do with respect to any other jurors the same thing that was done with respect to juror #5, counsel for defendants were silent. They made no further reference to the jury question.

Defendant Ross alleges prejudice when the jury saw him in a cell and, later, could have overheard a bailiff's telephone call summoning him to the courtroom. The Court of Appeals gave this allegation of error sufficient response.

Next defendants charge an abuse of discretion in the denial by the trial court of defendant Carroll's motion for separate trials. Statutory authority for the exercise of the court's discretion (M.C.L.A. § 768.5; M.S.A. § 28.1028) and case law establishing a strong policy in favor of joint trials are acknowledged by defendants. There must be an affirmative showing of prejudice to substantial rights of the accused. People v. Schram, 378 Mich. 145, 142 N.W.2d 662 (1966). The motion here was based upon an allegation of inconsistent defenses. The record discloses that the defenses differed but were not inconsistent and no statement was used by one defendant against another. No abuse of discretion is demonstrated.

The next two allegations of error go to the sufficiency of the evidence to sustain a conviction. There was a mixture of direct and circumstantial evidence, but a review of the evidence indicates a sufficient quantity and quality to sustain this jury conviction. Additionally, the trial court instructed the jury:

'To justify the inference of guilt from circumstantial evidence, the proof from which it is asked that the guilt of the Defendant be inferred, must be consistent with each other, must not only clearly point to Defendant's guilt, but must be inconsistent with any other reasonable hypothesis upon which his innocence may be maintained. * * * However, I charge you that you may only draw inferences from facts established by the direct testimony in the case. You may not base any inference upon another inference. It is only when you can make a reasonable inference based upon direct testimony that you may consider such circumstantial evidence in your deliberations.'

Defendants claim error for an unobjected-to failure to give unrequested instructions on certain lesser included offenses. This Court in People v. Henry, 395 Mich. 367, 236 N.W.2d 489 (1975), held that reversible error may not be predicated on such an omission absent a request.

Defendants' final allegation of error is that the trial judge shifted the burden of proof to defendants when he charged:

'If you find from all the evidence and the instructions as you have received them in this trial, that a Defendant is guilty of the crime charged against him here, your verdict will be in this form: We, the jury find the Defendant, there naming him, guilty of the crime of breaking and entering with intent to commit a larceny. On the other hand, if you find from the evidence and the instructions presented here in court that a Defendant is not guilty beyond a reasonable doubt of the offense with which he is charged, then your verdict will be simply in this form: We, the jury find the Defendant, there naming him, not guilty.' (Emphasis supplied.)

Ingenious but unpersuasive. Defense counsel did not object to this instruction. As a general rule the failure to make a timely objection precludes appellate review unless the unobjected-to error presents manifest injustice. People v. Dorrikas, 354 Mich. 303, 92 N.W.2d 305 (1958). We find no manifest injustice in this case. The jury was correctly charged on the duty of the prosecution to establish its case beyond a reasonable doubt.

'The burden of establishing the guilt of each Defendant is upon the Prosecution, and in order to justify you as jurors in rendering a verdict of guilty, it must be proved beyond a reasonable doubt that such Defendant has committed the offense charged against him at the time and place charged.'

Defendants have not established reversible error on this issue.

Affirmed.

COLEMAN and FITZGERALD, JJ., concur.

RYAN, J., not participating.

WILLIAMS, Justice.

I concur except as follows.

In the People v. Medcoff paragraph, the majority opinion states:

'This is a test which does not involve defendant's physical presence if his counsel is there representing him, for under those circumstances, there are no rights held by the defendant which his presence would have afforded him that his counsel cannot...