People v. Gunn, Docket No. 9963

• Court: Court of Appeal of Michigan (US)
• Citation: 190 N.W.2d 793,34 Mich.App. 106
• Docket Number: No. 1,Docket No. 9963,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Melvin GUNN et al., Defendants-Appellants
• Decision Date: 26 May 1971

Page 793

190 N.W.2d 793 34 Mich.App. 106 PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Melvin GUNN et al., Defendants-Appellants. Docket No. 9963. Court of Appeals of Michigan, Division No. 1. May 26, 1971.
Released for Publication Oct. 22, 1971.

[34 Mich.App. 107] Justin C. Ravitz, Philo, Maki, Ravitz, Glotta, Adelman, Cockrel & Robb, Detroit, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Patricia J. Boyle, Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and FITZGERALD and T. M. BURNS, JJ.

PER CURIAM.

On November 21, 1969, the defendants were convicted by the trial judge sitting without a jury of first-degree murder under the felony-murder statute, M.C.L.A. § 750.316 (Stat.Ann.1954 Rev. § 28.548). ¹ On December 19, 1969, they were sentenced to a term of life imprisonment. This appeal is taken as of right after an order denying a new trial.

Defendants first contend that the trial court erred by ruling that they waived their constitutional rights to exclude 'illegally'-seized evidence. [34 Mich.App. 108]

Page 794

The general rule and the issue herein involved is as follows:

'It is a familiar procedural rule that a motion to suppress must be made, if at all, in advance of trial. A trial judge is not obliged to turn aside from the trial of a criminal case to conduct a separate hearing on admissibility in the absence of the jury, although, as a matter of discretion, he may do so. People v. Ferguson (1965), 376 Mich. 90, 95, 135 N.W.2d 357. One of the questions before us is whether the refusal of the trial judge to conduct a separate hearing in this case was an abuse of his discretion.' People v. Smith (1969), 19 Mich.App. 359, 364, 172 N.W.2d 902, 905.

Smith goes on to state at page 366, 172 N.W.2d at page 906:

'Where the prosecutor has obtained important evidence and decides not to disclose that fact before introduction of the evidence at the time of trial and there is no reason for the defendant or his counsel to have been aware that such evidence has been taken, the defendant does all that he can constitutionally be required to do when he objects to the introduction of the evidence at the time it is offered.'

In the instant case, defendants do not claim lack of knowledge of the allegedly illegally-seized evidence before trial. On the contrary, the defendants claim that counsel for defendants did have knowledge and had no legitimate reason to fail to object. The defendants contend that the failure of the trial court to allow the taking of proofs as to the allegedly illegally-seized evidence ignored the plain requirements of People v. Degraffenreid (1969), 19 Mich.App. 702, 715--718, 173 N.W.2d 317.

The cited portion of Degraffenreid (pp. 715--718, 173 N.W.2d p. 324) reads in part:

[34 Mich.App. 109] 'If the mistake is of sufficient importance, the courts, trial and appellate, may, and in some cases are obliged to, grant the defendant relief.

'The constitution does not guarantee an accused person that his lawyer will not make a big mistake * * *.

'Where the lawyer's mistake * * * may have been decisive, * * * the court may, despite failure to have preserved the error by timely objection, grant a new trial.

'In deciding whether to grant a new trial * * *...