People v. Hopper

175 N.W.2d 889, 21 Mich. App. 276, 1970 Mich. App. LEXIS 2094

• Court: Michigan Court of Appeals
• Decided: February 3, 1970
• Docket: Docket 4,848
• Status: Published

Opinions

T. M. Burns, J.

The defendant was charged with committing armed robbery in violation of CL 1948, § 750.529 (Stat Ann 1969 Cum Supp § 28.797) and found guilty as the result of a jury trial April 18, 1967. The defendant claims on appeal that errors were committed in the admission of evidence by the trial judge. He also claims he was denied the right to effective counsel.

The trial court, in deciding against defendant’s motion for new trial, found that the shotgun which was introduced into evidence at trial was not located by an unreasonable search, and, consequently, it was not error to allow it to be introduced. We find that the record supports this ruling of the court below. The weapon was in plain view.

It was located not by a search but merely by the exercise of the officer’s senses. We agree with the trial court, therefore, on the basis of People v. Mallory (1966), 2 Mich App 359, that there was no search.

Defendant contends that it was reversible error to permit a police officer to testify over defendant’s objection as to the admission which the officer overheard the defendant give to the prosecuting attorney. The defendant objects to the admission of his statement and would have us strike that portion of it which concerns his prior convictions. The rule in this state is clear, however, and once any part of the statement is testified to, the jury is entitled to have the entire statement. People v. McElheny (1922), 221 Mich 50. Voluntary statements are always admissible and the jurors may give them such credit as they think them entitled to, even though a part of the statement may tend to show the commission of other crimes. See 1 Gillespie Michigan Criminal Law & Procedure, § 465, p 576. See also People v. Farrell (1904), 137 Mich 127.

Before trial, the defendant was notified that his statement would be used against him and he did not move to suppress under GCR 1963, 785.5(3)¹ 376 Mich xlv. In any event, the defendant took the stand and testified as to his past record. Further, the jury was instructed that his prior record could only be taken into account regarding his credibility, not his guilt or innocence.

There is here, however, a further question involving scope of the right to counsel under Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974) and People v. Whisenant (1968), 11 Mich App 432. This case is strikingly similar to the Whisenant case in that although defendant was informed of his right to counsel, “. . . nowhere does it appear (in the record) that he was informed of his right to have counsel, retained and appointed present during questioning and the giving of his statement.” People v. Whisenant (supra, p 437).²

We feel constrained to remand for a Walker hearing on the question of whether there was a voluntary waiver of right to counsel after being fully informed of his right to have such counsel present at questioning in line with Miranda v. Arizona, supra, and the decisions of this court.³

Bemanded for a Walker hearing.

Holbrook, J., concurred.

1 New, effective July 27, 1965; repealed, effective June 8, 1967.

2 See also People v. Whisenant (1969), 19 Micli App 182; (On Rehearing, 1970), 21 Mich App 518, for continuing vitality of this rule in faee of Federal Omnibus Crime Control Act. Title II, 18 USC § 3501.

3 See People v. Walker (On Rehearing, 1965), 374 Mich 331.