People v. Martin, Docket No. 9056

• Decision Date: 24 March 1971
• Docket Number: Docket No. 9056,No. 3,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George MARTIN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 41

188 N.W.2d 41

31 Mich.App. 624

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George MARTIN, Defendant-Appellant.

Docket No. 9056.

Court of Appeals of Michigan, Division No. 3.

March 24, 1971.

Released for Publication July 2, 1971.

Leave to Appeal Denied Aug. 18, 1971.

Miles J. Purcell, Saginaw, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George E. Thick, II, Pros. Atty., for plaintiff-appellee.

Before FITZGERALD, P.J., and BRENNAN and T. M. BURNS, JJ.

FITZGERALD, Presiding Judge.

Defendant's jury trial resulted in his conviction of armed robbery ¹ and his sentence of from 20 to 30 years in the State Prison for Southern Michigan. Defendant's delayed motion for new trial was denied and he appeals. Two issues are raised on appeal: (1) illegal search of the car in which defendant was riding when arrested and illegal seizure of items in the car; (2) denial of defendant's delayed motion for new trial on grounds of conflicting testimony of witnesses who identified defendant.

Defendant knew of the facts constituting the alleged illegal search and seizure before trial, but no motion to suppress evidence was made before trial. Defendant did not object at trial to the introduction of evidence which he now claims was obtained through illegal search and seizure. In Michigan, the rule 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. Defendant may not even raise the issue at trial for the first time. People v. Bass (1926), 235 Mich. 588, 209 N.W. 927; People v. Heibel (1943), 305 Mich. 710, 9 N.W.2d 826; People v. Ferguson (1965), 376 Mich. 90, 135 N.W.2d 357; People v. Wilson (1967), 8 Mich.App. 651, 155 N.W.2d 210; People v. Childers (1969), 20 Mich.App. 639, 174 N.W.2d 565; People v. Kennedy (1970), 22 Mich.App. 524, 177 N.W.2d 669; People v. Williams (1970), 23 Mich.App. 129, 178 N.W.2d 128.

Where a defendant has knowledge of facts constituting an illegal search and seizure before trial, he has the responsibility of communicating those facts to his attorney, who then has the responsibility of moving to suppress in advance of trial. People v. Ferguson, Supra; People v. Wilson, Supra. In this case the defendant was clearly aware of all the facts surrounding his arrest and the search and seizure of the evidence now complained of. Since no motion to suppress was made prior to trial, the issue of illegal search and seizure was waived. People v. Williams, Supra.

Although there was some conflict among the witnesses as to the identification of the defendant, there was positive identification by a number of witnesses that defendant was the man who carried the shotgun during the holdup. Defendant made no objection at trial to the conflict among the witnesses as to his identification.

This issue is one of the credibility of the witnesses. Resolution of conflicting testimony of witnesses with respect to identification of the defendant is for the jury. People v. De Smyther (1970), 23 Mich.App. 48, 178 N.W.2d 83. A defendant in a criminal case who fails to raise objections to improper admission of identification testimony at trial may not raise them for the first time on appeal, and the Court of Appeals will not consider them except to avoid clear injustice. People v. Schram (1970), 23 Mich.App. 91, 178 N.W.2d 93. The jury is the sole judge of the credibility of the witnesses in a criminal case. People v. Gray (1970), 23 Mich.App. 139, 178 N.W.2d 172. In...