People v. Triplett

• Decision Date: 16 April 1976
• Docket Number: Docket No. 20352,No. 1,1
• Citation: 68 Mich.App. 531,243 N.W.2d 665
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Lee TRIPLETT, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 665

243 N.W.2d 665

68 Mich.App. 531

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Lee TRIPLETT, Defendant-Appellant.

Docket No. 20352.

Court of Appeals of Michigan, Division No. 1.

April 16, 1976.

Released for Publication July 16, 1976.

Leave to Appeal Denied Aug. 18, 1976.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief, Detroit, for plaintiff-appellee.

Before BASHARA, P.J., and KAUFMAN and WALSH, JJ.

WALSH, Judge.

Defendant was originally charged with the first-degree murder, M.C.L.A. § 750.316; M.S.A. § 28.548, of Ulysses Thornton. The victim, a store guard, was one of three fatalities resulting from a shooting affray which took place during the attempted holdup of a neighborhood grocery store in Detroit on July 30, 1971. On December 15, 1971, Recorder's Court Judge Henry Heading accepted the defendant's plea to second-degree murder, M.C.L.A. § 750.317; M.S.A. § 28.549. He was thereafter sentenced to a term in prison of from 45 to 60 years.

On May 22, 1972, Judge Heading vacated that plea and granted defendant's motion for new trial because the defendant had been insufficiently advised of his constitutional rights during the plea taking. See People v. Jaworski, 387 Mich. 21, 194 N.W.2d 868 (1972). Defendant's motion for a reduction in the charge to second-degree murder was denied by Recorder's Court Judge John Murphy. On appeal to this court, however, an unpublished order was entered pursuant to People v. McMiller, 389 Mich. 425, 208 N.W.2d 451 (1973), remanding the case for trial on the reduced charge. ¹ On February 7, 1974, a jury found defendant guilty of second-degree murder and thereafter defendant was sentenced to life imprisonment. He now appeals as of right raising several issues relating to the conduct of the trial.

I.

On the second day of trial the defendant requested that a new preliminary examination be conducted on the ground that he had just recently learned that the information had been amended to reflect the reduced charge of second-degree murder. The information had previously charged first-degree murder.

We uphold the trial court's denial of that request inasmuch as defendant himself had actively sought the reduction in charge prior to trial, and in fact the record reflects a waiver of any objection to the proposed amendment at the very beginning of trial. Moreover, even without the amendment, a charge of first degree murder ipso facto apprises the accused that he must defend against the lesser included offense as well. See People v. Paul, 395 Mich. 444, 236 N.W.2d 486 (1975).

II.

A suppression hearing was held on December 14 and 15, 1971, to determine the admissibility of testimony relating to a revolver seized by police officers at the time of defendant's arrest. Defendant contends that this testimony was improperly admitted at trial because the weapon itself was the product of an illegal search and there was no showing that defendant was 'connected' with the revolver.

On the evening of August 8, 1971, the automobile in which defendant was a passenger was stopped by two patrolmen for a traffic violation--specifically, excessive smoke and noise, for which a citation was later issued. Officer Godor testified at a suppression hearing held December 14 and 15, 1971, that as he approached the passenger's side of the automobile he looked inside and saw a portion of a revolver protruding from the arm rest between defendant and the driver. The defendant was immediately arrested.

From these and other facts adduced at the hearing the trial judge determined the existence of probable cause justifying seizure of the revolver. It is our responsibility to preserve that finding unless we are convinced from a review of the record that the trial court's conclusion was clearly erroneous. People v. Bunker, 22 Mich.App. 396, 404, 177 N.W.2d 644 (1970), see also People v. Smith, 19 Mich.App. 359, 367--368, 172 N.W.2d 902 (1969). We are not so persuaded in the instant case. It is well settled that 'seizure of objects within the plain view of an officer, lawfully in a place where he had a right to be, are not proscribed by the Constitution'. People v. Whalen, 390 Mich. 672, 677, 213 N.W.2d 116, 119 (1973); People v. Kuntze, 371 Mich. 419, 124 N.W.2d 269 (1963). There was sufficient evidence in the instant case to support a finding that (1) officer Godor had a right to be positioned at the side of the automobile in which defendant was riding, having lawfully stopped the driver of the car for a traffic violation, and (2) that the weapon seized was at least partially in plain view. Therefore there was no search for purposes of Fourth Amendment analysis, U.S.Const. Am. IV; Const. 1963, art. 1, § 11. People v. Kuntze, supra, 425--426, 124 N.W.2d 269; People v. Whalen, supra, 390 Mich., 677, 213 N.W.2d 116.

The second argument concerning the admission of gun-related testimony ² is that the weapon itself was irrelevant because of a lack of evidence 'connecting' him to the seized revolver. Determination of the relevancy of proffered evidence is committed to the discretion of the trial judge; an appellate court should refrain from disturbing such rulings absent a finding of clear abuse of discretion. People v. Howard, 391 Mich. 597, 603, 218 N.W.2d 20 (1974). We find no clear abuse of discretion in the instant case. The testimony relating to the weapon was manifestly relevant because expert testimony was introduced which tended to prove that the gun found within arm's reach of the defendant at the time of his arrest was The weapon used during the commission of the crime. This is a classic demonstration of relevancy. See McCormick, Evidence (2d ed.), § 185, pp. 434--441.

III.

THE ADMISSION OF IDENTIFICATION TESTIMONY.

Two eyewitnesses, store employees Phillip Pye and his aunt Mary Jo Reese, were permitted to identify the defendant at trial as one of the perpetrators of the attempted robbery. With regard to Phillip's testimony, the defendant argues that his in-court identification was the product of an impermissibly suggestive pre-custody photographic show up. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); People v. Lee, 391 Mich. 618, 218 N.W.2d 655 (1974).

However, regardless of the alleged suggestiveness of the procedure used, we find that Phillip's in-court identification was independently established. See People v. McClow, 40 Mich.App. 185, 198 N.W.2d 707 (1972). Phillip testified that several hours before the attempted robbery he had seen the defendant enter a tavern with his accomplice Jordan. When Triplett and Jordan appeared later that evening, Phillip indicated that the store was well lit and that he had a second opportunity to see defendant's face.

The in-court identification by witness Mary Jo Reese is challenged for similar reasons. However, appellate counsel has failed to describe sufficiently any error alleged to have occurred in the pretrial identification procedure with respect to this witness. Furthermore, the argument for an independently established familiarity with the defendant's features is even stronger in this instance. Mary Jo was at the cash register just before closing time when defendant and his accomplice entered the store. The pair were the only nonemployees in the store. Ms. Reese testified that Triplett stood right in front of her for a short period of time, perhaps a couple of minutes, and she remembered speaking to him. There was no error in allowing Ms. Reese to identify the defendant at trial.

IV.

ADMISSION OF BALLISTICS TESTIMONY.

At trial the people's ballistics expert was permitted to offer testimony, over defendant's objection, tending to show that the two bullet slugs recovered from the victim's body had been fired from a .32-caliber H & R revolver. The weapon tested in support of this opinion was that seized from the automobile in which defendant was a passenger on the evening of his arrest. Neither the revolver nor the slugs were available at trial since these items had been inadvertently destroyed by the Detroit Police Department. There is absolutely no proof that the destruction of this evidence was an act of deliberate suppression. ³ A police officer in charge of the property section testified that the revolver was being held for a carrying a concealed weapon (CCW) charge pending against Triplett but dismissed in April 1972. The revolver was ordered destroyed on June 7, 1972, inasmuch as the CCW file jacket failed to indicate that a homicide charge was still pending.

A similar error occurred in the homicide section because the property officer there had not been advised that a new trial had been ordered on May 22, 1972. Acting upon the information available to him, Viz., that Triplett had pled guilty to second-degree murder in December 1971, the officer ordered the two bullet slugs destroyed on December 30, 1972.

It is forcefully argued by defendant that he was denied the right 'to be confronted with the witnesses against him', U.S.Const. Am. VI; Const.1963, art. 1, § 20, because the physical evidence which formed the subject matter of a government expert witness's testimony was unavailable at trial. The fact that defense counsel was able to cross-examine the expert, urges the defendant, was not enough to satisfy the demands of the Sixth Amendment.

The primary goal of the confrontation clause was to prevent the use of Ex parte affidavits or depositions against the accused in lieu of personal examination and cross-examination of witnesses in the presence of the trier of fact. Mattox v. United States, 156 U.S. 237, 242--243, 15 S.Ct. 337, 339, 39 L.Ed. 409, 411 (1895); California v. Green, 399 U.S. 149, 156, 90 S.Ct. 1930, 26 L.Ed.2d 489, 496 (1970). However, the essence of the confrontation guarantee is 'the right of the accused...