People v. Tucker

Michigan Supreme Court

People v. Tucker

189 N.W.2d 290, 385 Mich. 594, 1971 Mich. LEXIS 211

CourtMichigan Supreme Court

DecidedAugust 27, 1971

Docket13 June Term 1971, Docket No. 52,674-1/2

StatusPublished

Cited by9 cases

This text of 189 N.W.2d 290 (People v. Tucker) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Tucker, 189 N.W.2d 290, 385 Mich. 594, 1971 Mich. LEXIS 211 (Mich. 1971).

Pincite

Opinion

Black, J.

(for affirmance). To the extent one Justice of this Court may so do, I adopt the carefully detailed and thoughtfully considered opinion of Judge Danhof, writing for Division 2 (19 Mich App 320), and therefore vote to affirm.

When and if the United States Supreme Court rules that the otherwise admissible testimony of a disinterested witness, such as Mr. Henderson gave here (see 19 Mich App at 324), must be rejected as fancied or authentic “fruit” of that rhetorized “poisonous tree,” I will follow obediently our uni *595 formly exacted oath. But that day has not quite yet arrived, as the counsel on appeal for defendant concede * in the course of their effort to persuade that tins Court should extend — “logically” of course —the rules of exclusion that were laid down in United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149), and in Wade’s companion, Gilbert v. California (1967), 388 US 263 (87 S Ct 1951, 18 L Ed 2d 1178).

An unusually strong showing of guilt, echoed by the jury’s verdict, discloses that this professional felon committed a loathsomely bestial rape of a middle aged lady. There alone in her own home, she must have fought valiantly before submission or unconsciousness, for scratches of the defendant’s face were so noticeably marked, by successive witnesses hours later, as to form an important part of the people’s proof. The result of her defensive effort was a beating so vicious that she was unable to recall what happened or to identify her assailant. In the absence of reversible error — of which there simply is none — that assailant should not be granted a new trial; a new trial which, in these days of more and more shackling of law enforcement, usually means an order for outright release upon society of one whose record justifies the latest sentence imposed.

Adams, T. E. Brennan, Swainson and Williams, JJ., concurred with Black, J. T. M. Kavanagh, C. J., and T. G. Kavanagh, J., concurred in the result.

*

Counsel say, forthrightly in their brief:

“While both Wade and Gilbert involved verbal evidence of witnesses they did not consider the primary issue involved here, namely, whether in the_ absence of lineup or search problems, the identity of a witness discovered during illegal interrogation taints the witness’s subsequent testimony and requires its exelusion.”

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Black, J.

(for affirmance). To the extent one Justice of this Court may so do, I adopt the carefully detailed and thoughtfully considered opinion of Judge Danhof, writing for Division 2 (19 Mich App 320), and therefore vote to affirm.

When and if the United States Supreme Court rules that the otherwise admissible testimony of a disinterested witness, such as Mr. Henderson gave here (see 19 Mich App at 324), must be rejected as fancied or authentic “fruit” of that rhetorized “poisonous tree,” I will follow obediently our uni *595 formly exacted oath. But that day has not quite yet arrived, as the counsel on appeal for defendant concede * in the course of their effort to persuade that tins Court should extend — “logically” of course —the rules of exclusion that were laid down in United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149), and in Wade’s companion, Gilbert v. California (1967), 388 US 263 (87 S Ct 1951, 18 L Ed 2d 1178).

An unusually strong showing of guilt, echoed by the jury’s verdict, discloses that this professional felon committed a loathsomely bestial rape of a middle aged lady. There alone in her own home, she must have fought valiantly before submission or unconsciousness, for scratches of the defendant’s face were so noticeably marked, by successive witnesses hours later, as to form an important part of the people’s proof. The result of her defensive effort was a beating so vicious that she was unable to recall what happened or to identify her assailant. In the absence of reversible error — of which there simply is none — that assailant should not be granted a new trial; a new trial which, in these days of more and more shackling of law enforcement, usually means an order for outright release upon society of one whose record justifies the latest sentence imposed.

Adams, T. E. Brennan, Swainson and Williams, JJ., concurred with Black, J. T. M. Kavanagh, C. J., and T. G. Kavanagh, J., concurred in the result.

*

Counsel say, forthrightly in their brief:

“While both Wade and Gilbert involved verbal evidence of witnesses they did not consider the primary issue involved here, namely, whether in the_ absence of lineup or search problems, the identity of a witness discovered during illegal interrogation taints the witness’s subsequent testimony and requires its exelusion.”

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189 N.W.2d 290, 385 Mich. 594, 1971 Mich. LEXIS 211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-tucker-mich-1971.

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