People v. Gilleylen, Docket Nos. 8048

• Decision Date: 22 March 1971
• Docket Number: No. 3,Docket Nos. 8048,8049,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Aaron GILLEYLEN and Robert Edward Johnson, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 131

188 N.W.2d 131

31 Mich.App. 416

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Aaron GILLEYLEN and Robert Edward Johnson, Defendants-Appellants.

Docket Nos. 8048, 8049.

Court of Appeals of Michigan, Division No. 3.

March 22, 1971.

Released for Publication June 29, 1971.

Leave to Appeal Denied in No. 8048 July 15, 1971.

Gordon A. Doherty, Grand Rapids, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston, III, Chief Appellate Atty., for plaintiff-appellee.

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

FITZGERALD, Presiding Judge.

Defendants, in separate jury trials, were convicted of the crimes of carrying concealed weapons without a license ¹ and robbery armed. ² Sentences of 2 to 5 years and 10 to 20 years were imposed. Defendants appeal both convictions.

On November 8, 1968, Roosevelt Saffore, a resident of the City of Grand Rapids, called the police to report two men who were sitting in a vehicle bearing Ohio license plates and acting in a suspicious manner. Two police officers were dispatched to investigate. After stopping their police car, they approached the vehicle on foot to make routine inquiries. The officers testified they heard the door on the passenger side of the automobile open and close and heard something hit the ground with a dull thud. With the aid of a flashlight, one of the officers discovered a .38 caliber revolver on the grass between gutter and sidewalk within a foot or so of the passenger door. The gun was loaded, dry, and rust-free.

Defendants Gilleylen and Johnson were ordered out of the car and Gilleylen was arrested for carrying a concealed weapon. With the alleged permission of Johnson, the officers then searched the interior of the automobile.

Upon request, defendant Johnson handed the trunk key to one of the officers. A loaded sawed-off 16-gauge shotgun was found in the vehicle trunk. Defendant Johnson was then arrested for carrying a concealed weapon in an automobile. A timely motion was made to suppress the introduction of the shotgun and ammunition which had been taken from the vehicle as exhibits. Defendants were subsequently found guilty of the crime with which they were charged.

The second offense and trial stems from an armed robbery on October 10, 1968, when four men entered the Fairview Pharmacy in Walker, Michigan. Defendants, while in custody on the concealed weapons charge, were placed in a series of jail line-ups and identified as participants by the Fairview Pharmacy robbery witnesses. Following identification, the defendants were charged with armed robbery and the subsequent jury trial resulted in conviction.

On appeal, defendants question the sufficiency of the evidence to convict and allege several procedural and trial errors.

CASE NO. 8048

Defendants contend that the officers, on the basis of the complaint, lacked probable cause to arrest.

The officers were lawfully present to make a routine inquiry based upon a citizen's complaint. It is a policeman's job and duty to investigate such matters. The officers had no reason to arrest anyone on the basis of the complaint alone. The arrest was based upon facts and circumstances obvious and discernable to the officers' senses of hearing and sight. The facts available to the officers at the moment of the arrest of defendant Gilleylen would warrant the belief that an offense had been committed. Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142; People v. Sansoni (1968), 10 Mich.App. 558, 159 N.W.2d 858; People v. Wolfe (1967), 5 Mich.App. 543, 147 N.W.2d 447. The arrest was a result of practical considerations of everyday life on which reasonable and prudent men, not legal technicians would act. Brinegar v. United States (1949), 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; People v. Harper (1962), 365 Mich. 494, 113 N.W.2d 808; People v. Alexander (1970), 26 Mich.App. 321, 182 N.W.2d 1.

Looking at the facts available to the policeman in this case, the officer had reasonable cause to believe that there was a concealed weapon violation and probable cause to make the arrest.

Defendant's motion to suppress the shotgun and ammunition found in the vehicle trunk on the ground of unlawful search and seizure was denied.

There was sufficient and probable cause to arrest defendant Gilleylen. The arrest was lawful. The officers, therefore, had the right and duty to search the interior of the automobile incident to this arrest. People v. Harris (1942), 300 Mich. 463, 465, 2 N.W.2d 464. People v. Ritholz (1960), 359 Mich. 539, 551, 103 N.W.2d 481; People v. Dumas (1970), 25 Mich.App. 535, 538, 181 N.W.2d 627.

At the hearing on the motion to suppress, testimony indicates that defendant Johnson voluntarily produced his trunk key from his pocket and handed it to the officer following the officer's request to look into the trunk. One may waive the issuance of a search warrant and by consent permit the search of his premises. People v. Cope (1969), 18 Mich.App. 14, 170 N.W.2d 495.

The trial court's finding that Johnson had consented to the search and voluntarily without police duress or coercion handed the trunk key to the officer, is not, on the record, clearly erroneous. GCR 1963, 517.1; People v. Castelli (1967), 7 Mich.App. 1, 4, 151 N.W.2d 203.

Although one of the reasons the trial judge admitted the seized evidence was on a false impression of prevailing law (Const.1963, art. I, § 11) instead of the rule in Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, no reversal or remand is necessary because in this case the arrests were lawful and the search of the trunk was both with consent and reasonable.

Defendants claim that the prosecutor must prove that the defendants did not have a license to carry a concealed weapon in some other state. There is no such requirement. The burden of establishing any exception, excuse, proviso, or exemption contained in any such act is upon the defendant. M.C.L.A. § 776.20 (Stat.Ann.1970 Cum.Supp. § 28.1274(1)); People v. Jiminez (1970), 27 Mich.App. 633, 183 N.W.2d 853.

Defendant Gilleylen claims the court erred in permitting the prosecutor to question him concerning a previous arrest which did not result in a conviction.

This trial was commenced on March 10, 1969. At this time, established procedural guidelines allowed such cross-examination. People v. Hoffman (1965), 1 Mich.App. 557, 137 N.W.2d 304; People v. Foley (1941), 299 Mich. 358, 300 N.W. 119. People v. Brocato (1969), 17 Mich.App. 277, 169 N.W.2d 483, held that no reference could be made to arrests not resulting in convictions. But Brocato was decided on May 5, 1969.

In People v. Ruppuhn (1970), 25 Mich.App. 62, 180 N.W.2d 900, this Court held:

'Hoffman was the law before Brocato and was relied on by the trial court. Brocato affects trial procedure and will apply only to those trials which commenced after the date of this Court's decision in the case.'

No objection was made to this question and answer. The defendant further explained that he had not been convicted of the crime for which he had been arrested. Taking into consideration the entire record, we determine that there has been no miscarriage of justice. MCLA § 769.26 (Stat.Ann. 1954 Rev. § 28.1096).

Roosevelt Saffore, the original complainant, was not indorsed on the original information. Defendant contends because of this there was interference with his right to a fair trial.

The record discloses that this witness was indorsed on the information some time after the original filing. The purpose of Res gestae indorsement is to allow time to prepare for trial. People v. Lee (1943), 307 Mich. 743, 12 N.W.2d 418. Any claim of error must be measured by the extent to which this right is impaired. People v. Rowls (1970), 28 Mich.App. 190, 184 N.W.2d 332.

Defendant was cognizant of Roosevelt Saffore's identity, but made no motion to require indorsement or trial production of this alleged Res gestae witness, People v. Rasmus (1967), 8 Mich.App. 239, 154 N.W.2d 590; People v. Bowen (1968), 13 Mich.App. 178, 163 N.W.2d 831; or for a continuance, and on the record waived the calling and eliciting of testimony from this witness.

Defendants have made no showing that they were in any way hindered in preparing their defense. Their right to a fair trial was adequately protected.

The complaint was signed by a city police officer instead of complaining witness Saffore. Defendants challenge the jurisdiction of the court.

'A complaint which, upon its face, purports to be made upon the knowledge of the affiant, is a sufficient compliance with the statute, and that it is incompetent for a defendant upon arraignment to impeach the complaint by showing a lack of knowledge by the complaining witness. * * * Jurisdiction having attached for the issuance of the warrant, it could not be later impeached.' People v. Mosley (1953), 338 Mich. 559, 564, 61 N.W.2d 785, 788; People v. Campbell (1971), 30 Mich.App. 43, 186 N.W.2d 49.

Arrest, illegal or without warrant, followed by a complaint and warrant on which defendant is held for trial, cannot be considered at the trial. People v. Nawrocki (1967), 6 Mich.App. 46, 53, 54, 150 N.W.2d 516. People v. Drummonds (1971), 30 Mich.App. 275, 186 N.W.2d 7. The trial court had jurisdiction...