People v. Smith

• Decision Date: 06 May 1981
• Docket Number: Docket No. 45107
• Citation: 106 Mich.App. 203,307 N.W.2d 441
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Mann SMITH, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 441

307 N.W.2d 441

106 Mich.App. 203

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Larry Mann SMITH, Defendant-Appellant.

Docket No. 45107.

Court of Appeals of Michigan.

May 6, 1981.

Released for Publication July 13, 1981.

James R. Neuhard, State Appellate Defender, Richard B. Ginsberg, Asst. State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., John H. MacFarlane, Pros.Atty., for plaintiff-appellee.

Before R. B. BURNS, P. J., and MacKENZIE and KALLMAN, ^* JJ.

PER CURIAM.

On January 23, 1979, defendant was convicted by a jury of assault with intent to commit great bodily harm less than murder, M.C.L. § 750.84;M.S.A. § 28.279, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b;M.S.A. § 28.424(2).He was sentenced to consecutive terms of five to ten years on the assault conviction and two years on the felony-firearm conviction and appeals as of right.

Defendant initially attacks the constitutionality of the statutory procedure whereby a nonattorney magistrate made a finding of probable cause and issued a warrant for defendant's arrest.M.C.L. § 600.8507;M.S.A. § 27A.8507.Defendant contends that this procedure not only deprived him of due process of law, but violated Mich.Const.1963, Art. 6, § 19, by allowing a person not licensed to practice law to perform a judicial function.The result, according to defendant, was that the court lacked jurisdiction ab initio to try defendant for the offenses charged.

In support of his argument, defendant cites People v. Colleton, 59 Mich. 573, 26 N.W. 771(1886).In that case, not only was the arrest warrant issued by the clerk of the police court, but the trial and conviction were had before the clerk as well.Faced with those facts, the Michigan Supreme Court held:

"We think the position taken by defendant's counsel is correct upon both grounds: Section 1, Art. 6, Const.;Pub.Acts 1885, p. 125, § 5;How.Stat. §§ 2280, 7093;People v. Lynch, 29 Mich. 274(1874);Morton v. Crane, 39 Mich. (526) 530(1878).

"The prosecution of the defendant, for the offense charged, could only be had in some court of competent jurisdiction, the existence of which is authorized by the Constitution, and the taking of the complaint, and the examination of witnesses, and the determination therefrom whether or not the offense has been committed, preliminary to issuing the warrant, involve judicial action, which can only be taken by a court, and which cannot be performed by a clerk; neither can the power to perform it be conferred upon that officer.

"The verdict in the case must be set aside, and the proceedings dismissed, and the defendant discharged."People v. Colleton, supra, 59 Mich. at 575-576, 26 N.W. 771.

In the case at bar, defendant attacks only the authority of the magistrate to make a determination of probable cause and issue a warrant for defendant's arrest.Such a claim is not considered timely unless asserted prior to the swearing of the jury.People v. Curran, 191 Mich. 583, 158 N.W. 212(1916);People v. Burrill, 391 Mich. 124, 214 N.W.2d 823(1974).Although defendant attempts to avoid this defect by ingeniously arguing that the court lacked jurisdiction ab initio, Curran, supra, 588-589, is authority for the proposition that jurisdiction is obtained by the appearance of a defendant before a proper tribunal at trial:

"We do not deem it necessary to pass upon the question whether such recital may or may not be contradicted.We think that the question of the jurisdiction of the examining magistrate was not a proper issue upon the trial of the case upon its merits.After the arraignment of the defendant, the entry of the plea of not guilty, and the impaneling and swearing of the jury, it was too late to raise a question of the jurisdiction of the justice.The issue before the jury was the guilt or innocence of the defendant.The impropriety of going into such a collateral question as the jurisdiction of the justice is clearly shown by the examination of the justice himself, who, at the most, is uncertain as to whether he swore the man Aldrich himself, or whether the clerk swore him.The jurisdiction of the circuit court, obtained in the manner above stated, could not be destroyed because the complaining witness testified that he did not have personal knowledge of all the facts stated in the complaint.To permit this would be to allow oral testimony taken, as in this case, long after the complaint was made, to oust the court of jurisdiction given in the manner provided by the statute.We are therefore clearly of the opinion that this motion, even if there were any merit in it, ought to have been made before the jury were sworn.This entire subject-matter was outside the merits of the case.After the jury had been sworn and the trial of the issue as to the guilt of the defendant had been begun, it was too late to raise the objection as to the proceedings before the justice.This has been so often ruled by this court that it hardly seems necessary to cite cases.The real merit of the matter is, that all preliminary questions about the jurisdiction of the justice should have been settled before the jury were sworn.It was not a matter which went to the merits of the trial.People v. Schottey, 66 Mich. 708, 33 N.W. 810(1887);People v. Haas, 79 Mich. 449, 44 N.W. 928(1890);People v. Payment, 109 Mich. 553, 554, 67 N.W. 689(1896)."

Similarly, we reject defendant's argument that the use of magistrates to determine probable cause and issue arrest warrants violates the Fourth Amendment to the United States Constitution.In Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783(1972), the Court refused to invalidate an arrest warrant issued by a municipal court clerk where there was no showing that the clerk lacked neutrality or the ability to deduce probable cause to believe the offense had been committed based on the facts before him.Though Shadwick concerned the offense of impaired driving, we do not find that defendant has shown that magistrates are unable to make a knowing determination of probable cause for the offenses charged herein.Further, Shadwick and its progeny suggest that the remedy for such a defect is to quash the warrant and suppress any evidence obtained as a result of issuance of the warrant.As defendant does not argue that any evidence was illegally obtained due to the arrest warrant, he is not entitled to relief.

Next, defendant argues that the trial court erred in refusing to suppress evidence of a .22-caliber revolver found by police under the front seat of a car in which defendant had been a passenger.Defendant asserts neither a property nor a possessory interest in the automobile nor in the gun seized.The mere fact that defendant was in a car with the owner's permission immediately prior to the search did not endow him with a reasonable expectation of privacy in the area searched.Defendant, thus, lacks standing to attack the search and seizure.Rakas v. Illinois, 439 U.S. 128, 148-149, 99 S.Ct. 421, 433, 58 L.Ed.2d 387(1978).In Rakas, where the factual scenario paralleled that of the case at bar, the United States Supreme Court rejected the defendants' argument that their legitimate presence "on the premises" vested them with standing to attack the search.

"But here petitioners' claim is one which would fail even in an analogous situation in a dwelling place, since they made no showing that they had any legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers.Like the trunk of an automobile, these are areas in which a passenger qua passenger simply would not normally have a legitimate expectation of privacy.Supra, at 142, 99 S.Ct. at 429."Id.

Defendant also argues that admission of the pistol into evidence was erroneous because a sufficient connection between the crimes charged and the weapon was not established.The thrust of defendant's position is that the evidence should have been excluded as irrelevant, MRE 401, as more unfairly prejudicial than probative, MRE 403, and as tending to show an unrelated crime or wrongful act, MRE 404(b).

At the hearing on defendant's motion to suppress the gun as evidenceSergeant David Clark of the Kalamazoo Township Police testified that the gun was found five days after the assault in a vehicle which had been occupied by defendant and five other individuals.Prior to the search of the vehicle a rifle had been discovered after it apparently fell out of the front window of the car; additionally, in a Terry ¹ patdown search, the officers found several .22-caliber bullets on defendant's person and a clip for a rifle on the person of another occupant.Because the officers concluded that the clip could not be used with the rifle which had been found, they searched the car for other weapons.

The .22-caliber pistol was found under the front seat on the right (passenger) side of the vehicle.The testimony indicated that the area was inaccessible from the front seat due to blockage by a power unit used to adjust the seat.Sergeant Clark testified that the gun was positioned about one foot under the front seat (measured from the back seat), pointing toward the dashboard with its handle toward the right rear door.The testimony also indicated that the rounds of ammunition on defendant's person would fit the gun.Sergeant Clark stated that when the vehicle was stopped, defendant, one of three persons in the back seat, had been closest to the right side and that the gun was most accessible to him.Neither the car nor the gun was registered to defendant.Finally, at trial, the gun was identified by both persons whom defendant was charged with assaulting.

We find that the testimony of both complainants that they had seen the gun used in the assault from only several feet away and that it had a very...