People v. Shirk

166 N.W.2d 21, 14 Mich. App. 623

Opinions

J. H. Gillis, J.

The facts in the instant case are set forth in the Court’s opinion in People v. Shirk (1968), 10 Mich App 121. An application for leave to appeal our decision in the instant case was filed in the Michigan Supreme Court. By order entered July 24, 1968, the Supreme Court remanded this case to our Court for further consideration in light of Bruton v. United States (1968), 391 US 123 (88 S Ct 1620, 20 L Ed 2d 476) and Roberts v. Russell (1968), 392 US 293 (88 S Ct 1921, 20 L Ed 2d 1100).

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In the Bruton Case the majority opinion expressly overruled Delli Paoli v. United States (1957), 352 US 232 (77 S Ct 294, 1 L Ed 2d 278), which we had cited in our prior decision. The Bruton Case held that it was reversible error to allow into evidence a confession of a co-defendant that implicates a defendant in any way. This holding was made retroactive and applicable to the states in Roberts v. Russell, supra.

In the case at bar the confession of a co-defendant, Gerald MacKay, was introduced into evidence. The confession admittedly implicated defendant Shirk.

It is undisputed that defendant Shirk made no objection at trial to the introduction into evidence of the co-defendant’s confession. We are, therefore, asked to review the facts of the instant case to determine if circumstances were present which would justify our consideration of an error not raised before the trial court. See People v. Farmer (1968), 380 Mich 198, where the Michigan Supreme Court addressed itself to this very question. In the Farmer Case defendant sought to have the Supreme Court apply its doctrine as set forth in People v. Walker (On Rehearing, 1965), 374 Mich 331, to his trial which took place in 1958. Admittedly the Walker Case was given retroactive effect by the Michigan Supreme Court pursuant to the mandate expressed in Jackson v. Denno (1964), 378 US 368 (84 S Ct 1774, 12 L Ed 2d 908, 1 ALR3d 1205). In the Farmer Case our Supreme Court stated:

“While the rule announced in Walker was made retroactive, it does not follow that in every trial prior to Walker in which a confession was admitted in evidence a defendant is now automatically entitled to a Walker-tjpQ hearing. See, for example, People v. Fordyce (1966), 378 Mich 208.

“Under normal appellate procedures, since defendant was represented by counsel at all stages of the proceeding in which he was entitled to such representation and no claim of inadmissibility was raised, there would be no assignment of error for an appellate court to review. This would end our consideration of the case.” People v. Farmer, supra, at p 205.

For this reason, we again affirm the conviction.

McGregor, J., concurred with J. H. Gillis, J..

See 381 Mich 764.