People v. Davis, Docket Nos. 16712

• Decision Date: 06 March 1974
• Docket Number: 16790,Docket Nos. 16712,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gilbert DAVIS and John Henry Pitts, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 440

216 N.W.2d 440

52 Mich.App. 59

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gilbert DAVIS and John Henry Pitts, Defendants-Appellants.

Docket Nos. 16712, 16790.

Court of Appeals of Michigan, Division No. 2.

March 6, 1974.

Released for Publication April 9, 1974.

Leave to Appeal Denied May 15, 1974.

Joh T. Warren, Flint, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and R. B. BURNS and CAMPBELL,* JJ.

R. B. BURNS, Judge.

Defendants were convicted by a jury of armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797. Each defendant appeals separately but the two cases were consolidated by order of this Court for hearing and decision.

Both defendants contend that the trial judge erred in refusing to suspend the trial for purposes of holding evidentiary hearings as to the admissibility of a weapon taken from the automobile in which defendants were apprehended. The evidence presented at trial in this cause discloses that defendants and their counsel knew well in advance of trial that a weapon had been seized from the automobile at the time of their arrest. The long established rule in Michigan with respect to the suppression of evidence is that the illegality of the seizure of evidence, where the facts constituting such illegality are known before trial, must first be raised by a motion to suppress in advance of trial. People v. Ferguson, 376 Mich. 90, 135 N.W.2d 357 (1965); People v. Smith, 19 Mich.App. 359, 172 N.W.2d 902 (1969).

Defendant Pitts next contends that he was deprived of a fair trial when one of plaintiff's witnesses exposed money contained in a sack to the view of the jury, which was later not allowed into evidence by the court. Such contention is without merit. Defendant did not object or request a curative instruction or a mistrial. Therefore, the issue is not preserved for appeal.

Defendant Pitts' next assignment of error is to the admission of a photograph of the lineup in which the complaining witness identified him. He contends that a proper foundation was not laid for the admission of the photograph. The assignment of error is without merit as a review of the record discloses that all the requisites for proper foundation were present. People v. Heading, 39 Mich.App. 126, 197 N.W.2d 325 (1972).

Both defendants contend that the trial court's rejection of appellate counsel's request for disclosure of the contents of the presentence report was error and an abuse of discretion.

The Supreme Court adopted a sub-rule (.12) to ...