People v. Jordan, Docket No. 9559

• Citation: 34 Mich.App. 360,191 N.W.2d 58
• Decision Date: 22 June 1971
• Docket Number: Docket No. 9559,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald JORDAN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 58

191 N.W.2d 58

34 Mich.App. 360

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald JORDAN, Defendant-Appellant.

Docket No. 9559.

Court of Appeals of Michigan, Division No. 2.

June 22, 1971.

Released for Publication Nov. 5, 1971.

Leave to Appeal Denied Dec. 16, 1971.

Max D. McCullough, Mt. Clemens, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Thaddeus F. Hamera, Chief Appellate Lawyer, Don L. Milbourn, Asst. Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and BRONSON and O'HARA, ^* JJ.

O'HARA, Judge.

Defendant-appellant, Ronald Jordan, was convicted by a jury of first-degree murder committed during an armed robbery. M.C.L.A. § 750.316 (Stat.Ann.1971 Cum.Supp. § 28.548). He was sentenced to life imprisonment. From his conviction he appeals of right.

On November 21, 1969, the defendant and a companion held up a small market in Roseville, Michigan, run by Hosmer and Iba Masters. During the holdup, Mr. Masters was fatally shot. In their haste to leave, the only item taken by the robbers was a .32 caliber automatic pistol belonging to the proprietors.

The week following the robbery, a Mrs. Shiros and a Mr. Buckley contacted the Roseville police and stated that they had seen people in other party stores matching the description of the two men who robbed to Masters' store. Detective Peters, who was placed in charge of the investigation, contacted other party store owners along Gratiot Avenue to determine if any of them had seen individuals matching the robbers' description.

On November 27, 1969, Sergeant Leske of the Detroit Police received an anonymous telephone call stating that the weapon taken from the Masters' store during the holdup was at a certain address. The next morning he went to the address and arrested Ronald Jordan for either the Roseville robbery and homicide or a Detroit murder. A search of the premises incident to the arrest uncovered the gun being sought.

The afternoon of the same day, Sergeant Leske notified Detective Peters that he had a suspect in custody in connection with the Roseville robbery and that a lineup would be held. He took Mrs. Masters, Mrs. Shiros and Mr. Buckley to the showup. mrs. Masters could not identify the defendant, but the others identified him as being the man who was in other party stores along Gratiot Avenue near the time of the crime.

After the lineup, Detective Peters spoke to one Lee T. Ray who was apparently in custody because of his involvement with the defendant in a Detroit murder. Mr. Ray indicated that the murder weapon used in the Roseville killing belonged to a Charles White who lived in the same apartment building as the defendant. Police efforts to locate White the same evening were unsuccessful.

The next day the detective again went to Detroit police headquarters. There he spoke with White about getting the weapon. Mr. White cooperated and obtained the Beretta from its owner. White explained that he had held the gun as security for a loan he made to the owner, and that he, in turn, had loaned it to the defendant. This gun was clearly established as the murder weapon.

On November 30, Detective Mikus of the Detroit force called Detective Peters and informed him that defendant wanted to make a statement. Detective Peters went downtown and obtained the defendant's confession on a cassette tape recorder. The defendant later refused to sign this confession. Trial and conviction followed.

As his first assignment of error, defendant claims that the trial court erred reversibly by denying plaintiff's motion for a mistrial when the prosecutor decided to forego introducing a .32 caliber pistol which had been identified by the victim's wife preparatory to moving its admission into evidence.

Certain facts regarding the .32 caliber revolver were established by the prosecutor. Mrs. Masters, widow of the decedent, testified that during the robbery in which her husband had been killed, a .32 caliber weapon was apparently taken from the store. Thereafter, the prosecutor made an offer of proof out of the presence of the jury. He indicated that he desired to lay a foundation for the eventual introduction of the gun into evidence once officers had testified as to its chain of custody. An immediate objection was entered to the proposed exhibit by defendant's counsel on the ground of illegal search and seizure.

Defendant's objection was not well taken. He had not made any pretrial motion to suppress admission of the gun as evidence even though his own testimony at the Walker hearing ¹ establishes that both he and his counsel knew the police were in possession of the weapon. In the absence of a pretrial motion to suppress evidence allegedly seized illegally, the search and seizure issue cannot be considered initially at trial. People v. Ferguson (1965), 376 mich. 90, 135 N.W.2d 357; People v. Smith (1969), 19 Mich.App. 359, 172 N.W.2d 902. Therefore, the weapon was competent evidence and the trial court need not have considered what was purportedly an illegal seizure by the police.

Mrs. Masters was then recalled. She testified that the people's proposed Exhibit #12, a .32 caliber pistol, was similar to her husband's gun and further indicated that she believed that it was his revolver. This identification was not positive. The pistol was thereupon taken out of the jury's view and never shown in court again. Thus, the sum total of evidence before the jury on this issue was the widow's testimony that the decedent's gun had disappeared during the robbery and her identification of a .32 caliber pistol as the one she believed belonged to her husband. At no point was there any testimony connecting the gun with defendant.

No error arises solely because the prosecutor subsequently decided that he would not offer the proposed exhibit. ² The mere laying of a foundation for admission of evidence is not prejudicial error because the exhibit is not subsequently offered. Schmidtberger v. United States (C.A.8, 1942), 129 F.2d 390.

Under the facts herein, the defendant has failed to show how the in-court identification of the gun prejudiced him in any way, and he was not thereby entitled to have a mistrial declared. People v. Miller (1970), 28 Mich.App. 161, 184 N.W.2d 286.

Next, it is asserted that the trial court committed reversible error by allowing the decedent's widow to identify the defendant in court as one of the robbers when she had been unable to identify him at a previous lineup and the preliminary examination.

Defendant concedes that there was no improper or tainted out-of-court confrontation between himself and Mrs. Masters in contravention of United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. Furthermore, testimony at the Walker hearing establishes that on the date of his arrest the defendant was taken before a Recorder's Court judge and an attorney was appointed to represent him. Later the same day the Detroit Police Department held a lineup at which defendant's assigned counsel was present. At neither this lineup nor at the subsequent preliminary examination was Mrs. Masters able to make a positive identification. All of this information was brought out at the trial.

Questions as to the weight and credibility of any testimony are within the province of the jury under proper instruction, as in the instant case. People v. Hancock (1950), 326 Mich. 471, 40 N.W.2d 689. No reversible error attached.

For the sake of convenience, we have combined the following assignments of error:

1) Whether defendant's confession was a direct product of an illegal arrest and therefore improperly admitted in evidence at the trial.

2) Whether the confession of defendant was inadmissible both because of the absence of counsel at the time of the confession and further on account of promises that he allegedly would be charged with the lesser offense of second-degree murder. We will discuss them collectively.

As noted before, the Detroit police received a telephone tip from an unknown caller to the...