People v. Coppernol

• Decision Date: 24 March 1975
• Docket Number: No. 3,Docket Nos. 18874,19533,3
• Citation: 229 N.W.2d 913,59 Mich.App. 745
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Randy Lee COPPERNOL, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry J. COPPERNOL, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 913

229 N.W.2d 913

59 Mich.App. 745

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Randy Lee COPPERNOL, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry J. COPPERNOL, Defendant-Appellant.

Docket Nos. 18874, 19533.

Court of Appeals of Michigan, Division No. 3.

March 24, 1975.

Released for Publication June 11, 1975.

James R. Neuhard, State Appellate Defender, Detroit, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Farrell E. Elliott, Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and CAVANAGH and WALSH, JJ.

WALSH, Judge.

The defendants were convicted of breaking and entering with intent to commit larceny, contrary to M.C.L.A. § 750.110; M.S.A. § 28.305, at a bench trial which concluded on September 11, 1973. Each was sentenced to serve from 6 to 10 years in prison and both defendants appeal their convictions as of right.

At around midnight on July 23, 1973, two men were observed walking up the stairs of a building adjacent to the Woolworth store in Sault Sainte Marie. Mrs. Christie, a tenant in the adjoining building, testified that she could not see the faces of the two men but did notice that one of them was carrying what appeared to be a drill. She called her neighbor, Edna Miller, and together they watched one man descend the staircase. Mrs. Christie was unable to identify this individual, and Edna Miller was never called to testify.

The police were notified and after three officers had convened at the scene, they approached an automobile which was parked in a lot behind Woolworth's. One of the officers had previously seen Terry Coppernol descend the stairs and enter the vehicle.

Officer Harris testified that Terry Coppernol was seated in the vehicle along with two young girls. He approached the passenger side, while the other two officers went to the other side and asked Terry for identification. His testimony continues:

'I asked him for identification and he produced a Michigan driver's license. I then asked him if he was the subject that was on the roof of Woolworth's and he said yes, he was. I said, 'Where is your friend? Is he still up there?', and he said, 'Yes'.'

Terry was left in the custody of Officer Albert Jaros while the other two officers climbed to the roof of Woolworth's to look for the other subject. Firearms and boxes of ammunition bearing Woolworth sales tags were seen on the roof as well as a broken chain securing a door leading down into the store. Officer Albert Jaros was immediately advised of these circumstances and at that time placed the defendant Terry Coppernol under arrest. No Miranda warnings had as yet been given the defendant. Terry was placed in the back seat of one of the patrol vehicles and was told that the officers were entering the building to see if there were any other people there. Officer Jaros testified:

'At this time the defendant, Terry Coppernol, stated to me that his brother was still inside the building, and I asked him if he was armed and he said he believed that he was but not sure. He then asked me if it would be permissible for him to attempt to shout into the building and ask his brother to come out peaceably, in order that he would not be injured or harmed, and I agreed to this.'

The defendant was then transported to the police station and a formal written statement was given to the police after Miranda infra warnings had been given. A Walker ¹ hearing was conducted to determine the admissibility of the above three statements. The issues were resolved against the defendant. We are obliged to examine the entire record and make an independent determination of the ultimate issue of voluntariness. People v. Robinson, 386 Mich. 551, 557, 194 N.W.2d 709 (1972); People v. Douglas, 50 Mich.App. 372, 376, 213 N.W.2d 291 (1973). This we have done and perceive no error.

The first statements elicited from defendant Terry Coppernol acknowledging that he had been on the roof and that his 'friend' was still up there were given in response to Officer Harris' initial questioning when he approached the vehicle.

At this point it was not apparent that any crime at all had been committed. The officers were investigating a report of suspicious activity. Their investigation had not reached the accusatory stage. Although there were three officers at the car when the initial questions were asked, the defendant was not 'in custody' as he contends. General on-the-scene questioning of citizens in the fact finding process under circumstances such as these is not custodial interrogation of the type requiring forewarning as to constitutional rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); People v. Jeffries, 39 Mich.App. 506, 197 N.W.2d 903 (1972); People v. Hutton, 50 Mich.App. 351, 213 N.W.2d 320 (1973).

The second statement, made by the defendant Terry Coppernol after he was placed under arrest, to the effect that his brother was still inside the building was a volunteered remark not made in response to interrogation. As such, the admissibility is not affected by the Miranda decision. People v. Moore, 51 Mich.App. 48, 214 N.W.2d 548 (1974); People v. Griner, 30 Mich.App. 612, 186 N.W.2d 800 (1971). The officer's question as to whether or not his brother was armed was not aimed at building a case against the defendant but was rather a proper inquiry necessary under the circumstances for the protection of the defendant Randy Coppernol and the officers themselves. Similar questions prompted by an arresting officer's legitimate and required concern for the safety of himself and others were affirmed in People v. Toler, 45 Mich.App. 156, 206 N.W.2d 253 (1973); and United States v. Castellana, 500 F.2d 325 (CA 5 1974).

Finally the defendant contends that the written statement furnished to the police officers was given in exchange for a promise of leniency and therefore rendered inadmissible. People v. Pallister, 14 Mich.App. 139, 165 N.W.2d 319 (1968). The trial judge resolved a direct conflict in the testimony against the defendant and our review of the Walker hearing does not lead us to a different conclusion. See People v. Robinson, 386 Mich. 551, 194 N.W.2d 709 (1972); and People v. Scott, 44 Mich.App. 462, 205 N.W.2d 291 (1973).

We find no error in the admission of the statements made by Terry Coppernol.

Defendant Randy Coppernol asserts that the officer's testimony as to his brother's statements relating to his (Randy's) presence in the building was hearsay and inadmissible as to him. We disagree. These statements fall within the res gestae exception to the hearsay rule. The rule governing admissibility of hearsay evidence under this exception has been well defined in previous opinions of this court. The statements must be made in response to a startling event; the statements must be made before there has been time to contrive; and there must be a relationship between the statements and the preceding events. Rice v. Jackson, 1 Mich.App. 105, 134 N.W.2d 366 (1965); People v. Thomas, 14 Mich.App. 642, 165 N.W.2d 879 (1968); People v. Kelley, 32 Mich.App. 126, 188 N.W.2d 654 (1971); People v. Meyer, 46 Mich.App. 357, 208 N.W.2d 230 (1973).

In this case Terry Coppernol was suddenly informed, while the crime was presumably still in progress, that the police were going into the building. There is evidence that he thought his brother was still inside (although he later denied this) and he was very concerned for his brother's safety. He responded immediately. There was no time to fabricate a story or misrepresent facts. The relationship between the statements and the preceding events is obvious.

Furthermore, the real evil in hearsay testimony is that the hearsay declarant is neither sworn nor available for cross-examination. Such was not the case here. Terry Coppernol testified and could have been exhaustively cross-examined as to the statements in question. There was no prejudice. The testimony was properly admitted.

There was certain other hearsay testimony which placed Randy Coppernol at the scene of the crime. Neither defendant raised an objection to the admission of this testimony. Consequently, any issues relating to the propriety of its admission were not preserved for review. People v. Flood, 25 Mich.App. 518, 181 N.W.2d 608 (1970), lv.den., 385 Mich. 788 (1971); Cf. People v. Hall, 56 Mich.App. 10, 18--19, 223 N.W.2d 340 (1974). Moreover, all parties to the unobjected-to hearsay remarks were present at the trial and available for crossexamination. Since the credibility of the out-of-court declarant could be tested at trial, the likelihood of prejudice was minimal. People v. Solomon, 47 Mich.App. 208, 212--214, 209 N.W.2d 257 (1973), rev'd on other grounds, 391 Mich. 767, 214 N.W.2d 60 (1974); McCormick, Law of Evidence, (2d ed.), § 246, p. 548.

Defendants next argue that the prosecution's failure to indorse one Edna Miller on the information constitutes reversible error. The controlling statute is M.C.L.A. § 767.40; M.S.A. § 28.980:

'All informations shall be filed in the court having jurisdiction of the offense specified therein, after the proper return is filed by the examining magistrate, by the prosecuting attorney of the county as informant; he shall indorse thereon the names of the witnesses known to him at the time of filing the same. The information shall be subscribed by the prosecuting attorney or in his name by an assistant prosecuting attorney. Names...