People v. Wilson

• Decision Date: 05 October 1970
• Docket Number: Docket No. 7758,No. 1,1
• Citation: 183 N.W.2d 368,27 Mich.App. 171
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Melrose WILSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 368

183 N.W.2d 368

27 Mich.App. 171

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Melrose WILSON, Defendant-Appellant.

Docket No. 7758.

Court of Appeals of Michigan, Division No. 1.

Oct. 5, 1970.

Released for Publication Feb. 15, 1971.

James A. Hathaway, Hathaway, Ricard, Hathaway & Hathaway, Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Luvenia D. Dockett, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and V. J. BRENNAN and KELLEY, ^* JJ.

PER CURIAM.

Defendant was arrested on March 8, 1968, on a charge of possession of narcotics in violation of M.C.L.A. § 335.153 (Stat.Ann.1957 Rev. § 18.1123). After being tried by a jury in Detroit's recorder's court, he was found guilty and sentenced to not less than three and a half years imprisonment.

The facts of the case are as follows. At approximately 2:00 a.m., two police officers were cruising in a scout car on Linwood in Detroit when they saw two men standing in the recessed doorway of a closed liquor store with their backs to the street. The officers observed light being emitted from the top of the door, giving the appearance that the door was open although in fact it was not. The officers stopped their car, emerged, and told the two men--one of whom was the defendant--to 'hold it.' The defendant broke and ran. One police officer gave pursuit and drew his gun when he thought he saw defendant reach in his pocket for a weapon. Upon apprehending the defendant, the police officer found a revolver on defendant's person.

The narcotics came to the police officer's attention after the defendant's arrest. The officer put the defendant in the back seat of the scout car and, as the officer passed behind the scout car, he saw the defendant drop a green bottle onto the floor of the car. Inside the bottle were four foil packets containing a white powder which was later found to be cocaine. At the station, a pill containing a derivative of barbituric acid was found in the defendant's clothing.

The defendant first alleges as error that the information was fatally defective because it charged him with two offenses in one count. Admittedly, no objection was made to the information either before or during trial. Failure to object before trial or at such time thereafter as the court in its discretion permits has the effect of waiving any defects of form or substance. M.C.L.A. § 767.76 (Stat.Ann.1954 Rev. § 28.1016). Therefore, this issue is not properly before us. People v. Green (1968), 14 Mich.App. 250, 165 N.W.2d 270.

Likewise, defendant attempts to raise an objection to the judge's charge to the jury for the first time on appeal. It is contended that the judge treated 'possession' synonymously with 'control' in his charge and that this is prejudicial since the penalty for a second conviction of violation of narcotics laws varies dependent on whether the first conviction was for possession or control. The court asked the attorneys out of hearing of the jury if they cared to add anything to the charge. Both the defense counsel and the prosecutor indicated they were satisfied. Defendant may not for the first time on appeal claim error in instructions. GCR 1963, 516.2. People v. Jew (1970), 21 Mich.App. 408, 175 N.W.2d 544; People v. Jefferson (1969), 18 Mich.App. 9, 170 N.W.2d 476.

The next assignment of error is that the trial court erred in denying defendant's motion to suppress the cocaine on the ground that it was illegally seized in violation of the Fourth Amendment to the Federal Constitution. The theory put forward in appellant's brief is that the arrest of Wilson was illegal and that the cocaine was inadmissible as the fruits of an illegal arrest. We do not agree.

The evidence in this case easily supports a finding of probable cause to believe that defendant was committing a felony. The defendant's behavior in the doorway, the hour of day, the light shining through the door, the flight from the police officers, and the apparent attempt of defendant to pull a concealed weapon, all served to fortify the officers' belief that defendant was engaged in committing a crime. Of particular importance was the defendant's evasive action when the officer told him to 'hold it.' In People v. Evans (1966), 3 Mich.App. 1, at page 7, 141 N.W.2d 668, at page 670, this Court discussed various cases dealing with the legality of an arrest and concluded that:

'All of these cases seem to be based upon the theory that when a person, upon discovering that he is being observed by the police, takes obviously evasive action, he gives the police reasonable cause to believe that he is committing or has committed a felony or is in the process of committing a misdemeanor, thereby justifying immediate search and seizure. This Court concludes, therefore, that the defendant Evans, by evading and hiding from the police, gave them sufficient reason to make immediate search and seizure.'

Defendant would circumvent these cases by saying that the arrest occurred when the officer shouted 'hold it.' No law is cited for that proposition and indeed none can be since an 'arrest' must be determined by looking at all the circumstances. We prefer to examine this search on the basis that the arrest occurred when...