People v. Qualls

• Decision Date: 21 March 1968
• Docket Number: No. 1,Docket No. 3317,1
• Citation: 9 Mich.App. 689,158 N.W.2d 60
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ewell C. QUALLS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 60

158 N.W.2d 60

9 Mich.App. 689

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ewell C. QUALLS, Defendant-Appellant.

Docket No. 3317.

Court of Appeals of Michigan, Division No. 1.

March 21, 1968.

Released for Publication April 26, 1968.

Rehearing Denied April 29, 1968.

Leave to Appeal Denied July 23, 1968.

Harry Riseman, Riseman, Lemke & Piotrowski, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. General, Lansing, William L. Cahalan, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Richard J. Padzieski, Asst. Pros. Atty. Wayne County, Detroit, for plaintiff-appellee.

Before LESINSKI, C.J., and GILLIS and KAVANAGH, JJ.

LESINSKI, Chief Judge.

The defendant, Ewell C. Qualls, was convicted by a jury of the crime of manslaughter* and sentenced to prison.

The facts reveal that on April 3, 1965, the Highland Park police department was summoned to an address in that city to investigate a shooting. Upon arrival, the officers observed the defendant in the doorway with a revolver in his hand. The defendant motioned for the police to enter, and the bodies of Ervin Kopas and Mervyn Shewell were found therein. The defendant was arrested, stood trial, and was convicted of voluntary manslaughter in the death of Mervyn Shewell.

On appeal, as his first assignment of error, the defendant contends the trial court abused its discretion by failing to grant a motion for a mistrial when it was brought to the court's attention that the brother of Ervin Kopas had heaped verbal abuse on defense counsel, allegedly in the presence of a juror. The brother was questioned by the court in the absence of the jury about the incident and his account in response was as follows:

'The Court: Were there other people in the elevator?

'Mr. Kopas: Yes, there was my wife and some counsel of his (defendant). That to my awareness was all that was in the elevator, and as to regards as to what I recall exactly what I said. I said, I asked him, I said, 'Are you happy in your chosen profession?' I said, 'I hope you're happy in your chosen profession,' and I didn't recall the response that I got from him, and There was no mention whatsoever of Qualls. I just told him that my opinion of him was very low in his type of line of work he's doing, and that if there was a hell anywhere he would find it, and that's exactly as far as I can remember, that was the exact words. There was no mention of this particular case, or in essence it was just like he says, a personal attack on his character.' (Emphasis supplied.)

The trial judge recalled the members of the jury and inquired of them collectively, 'if you can recall or think of any incident or occurrence outside of the courtroom which would in any way influence your thinking, or your verdict in this case, or tend to prejudice you in any way against one side or the other.' This inquiry failed to elicit an affirmative response from any of the jurors, whereupon the judge asked if counsel for either side had any other questions for the jury. Both counsel stated they had no further questions.

The defendant, on appeal, contends that the trial judge abused his discretion in denying the motion for a mistrial, and further, that the investigation made by the trial judge concerning the verbal attack on defense counsel, reportedly in the presence of a juror, was not complete enough to ascertain whether defendant had been prejudiced by the incident. The record does not reveal the abuses the defendant urges.

When the trial court learns of an incident, such as happened in this case, arising during the progress of the trial, fairness to the defendant requires that the trial judge ascertain its prejudicial effect. And whether or not the circumstances establish that a mistrial should be declared rests in the sound discretion of the trial judge. People v. Bigge (1941), 297 Mich. 58, 297 N.W. 70. Moreover, a mistrial should not be declared in consequence of any mere irregularity which is not prejudicial to the rights of the defendant. People v. Watson (1943), 307 Mich. 596, 12 N.W.2d 476.

In People v. Schram (1966), 378 Mich. 145, 142 N.W.2d 662, our Supreme Court was confronted with the same problem as in the instant case. The rule adopted in Schram, supra, is that not every improper contact with a jury presents grounds for a mistrial and the appellate court will reverse only when prejudice is affirmatively shown or facts clearly establish the inference that it occurred from what was said or done. See, also, People v. Nick (1960), 360 Mich. 219, 103 N.W.2d 435.

Assuming Arguendo that the trial judge should have been more extensive in his inquiry, the position that defendant herein urges is certainly inconsistent with his position at trial, that he was satisfied with the court's inquiry and had no further questions. This Court views the defendant's present position as an afterthought; by failing to make further requests of the trial judge, the defendant has effectively waived the right to complain. It has been said on good authority that 'It is only in furtherance of good practice to hold that a defendant who chooses to take the chances of an acquittal on the merits, without complaining of irregularities at the trial, waives his objections.' 2 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 715, p. 909. We find that the inquiry of the trial judge, while not exhaustive, was sufficient under the facts presented to satisfy the spirit of Schram, supra, and justified the denial of the motion for a mistrial.

In his second assignment of error, the defendant contends that certain admissions elicited from him during incustody interrogation were improperly admitted into evidence. In support of his contention, he directs our attention to Miranda v. State of Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 ALR3rd 974. The defendant's position is persuasive in that prior to questioning by the police, although he was advised of his right to counsel, he was never advised that this right included 'retained or appointed' counsel. Certainly advising the defendant that he had a right to counsel without informing him that counsel would be appointed if he was without funds is contra to the spirit and the language of Miranda, supra. See, also, Harvard Law Review, 1966--67, p. 201, vol. 80:91.

The position that the defendant maintains on appeal is again, however, inconsistent with his posture in the lower court. The record reveals that the statements made by defendant which he now contends were inadmissible at the trial, were, in fact, carefully scrutinized by him when defense counsel cross-examined the people's police witnesses. We will not speculate as to the purpose of defense counsel's approach but find that in the absence of an objection in the court below, he is in no position to complain. People v. Bauman (1952), 332 Mich. 198, 50 N.W.2d 757.

It is settled law that the failure to object to alleged errors in the lower court precludes their being raised for the first time on appeal. However, in People v. Paul F. Baker (1967), 7 Mich.App. 471, 475, 152 N.W.2d 43, this Court stated:

'However, this court in observing this general rule, will exercise its 'perogative of searching for error which reflects clear injustice.' People v. Hicks (1966), 2 Mich.App. 461 at 463, 140 N.W.2d 572 at 573. 'The inherent power of this Court to prevent fundamental injustice is not limited by what appellant is entitled to as a matter of right.' People v. Dorrikas (1958), ...