People v. Summers , 70 Mich. App. 584 ( 1976 )

70 Mich. App. 584 (1976) 246 N.W.2d 152

PEOPLE
v.
SUMMERS

Docket No. 24602.

Michigan Court of Appeals.

Decided August 5, 1976.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Richard J. Pasarela, Prosecuting Attorney, and Gerald W. Gibbs, Assistant Prosecuting Attorney, for the people.

Boeschenstein, Marietti, Mullally & Grimm, for defendant.

Before: BASHARA, P.J., and ALLEN and C.J. HOEHN,^[*] JJ.

PER CURIAM.

On February 5, 1975, the defendant was convicted by the circuit court, sitting without a jury, of involuntary manslaughter in violation of MCLA 750.321; MSA 28.553. He was sentenced to serve a term of imprisonment of from 7-1/2 to 15 years. Defendant now appeals as of right.

The record shows that on September 4, 1974, the head brakeman on a C & O freight train passing through Muskegon County was shot and killed. On September 5, 1974, defendant, who was evidently already suspected by police to be the man responsible for the shooting, was arrested by police on the authority of a probation violation warrant issued that date. Later, on the 5th, and the morning of the 6th, the defendant made statements which were admitted into evidence against him at trial. Neither before nor during trial did the defendant object to the use of these statements against him.

Defendant now contends that his statements were inadmissible on constitutional grounds as the product of an illegal arrest. Wong Sun v United States, 371 U.S. 471, 491; 83 S. Ct. 407; 9 L. Ed. 2d 441 (1963). Ordinarily, where evidence goes unobjected to at trial this Court will not consider the propriety of its admission on appeal.

"Counsel cannot sit back and harbor error to be used as an appellate parachute in the event of jury failure." People v Brocato, 17 Mich. App. 277, 305; 169 NW2d 483 (1969).

However, owing to the gravamen of the error asserted, an exception to this rule has been recognized. The rule is best set out in People v Bukoski, 41 Mich. App. 498, 500-501; 200 NW2d 373 (1972), where it was said:

"In People v Degraffenreid, 19 Mich. App. 702 [173 NW2d 317] (1969), this Court recognized that where constitutional rights are involved, the failure to object below will not prevent us from granting a new trial where such failure is of sufficient importance that it may have been decisive. In such a case, the reasons which underlie the preservation of error rule must give way to the interests of justice and the protection of constitutional rights. This is true despite the fact that a defendant's right not to have evidence obtained by illegal search and seizure used against him may be waived by his attorney. Henry v Mississippi, 379 U.S. 443; 85 S. Ct. 564; 13 L. Ed. 2d 408 (1965).

"Where a defendant raises a constitutional question for the first time on appeal, we must ask two questions: (1) was the evidence decisive, and (2) was the evidence erroneously admitted into evidence. People v Gunn, 34 Mich. App. 106 [190 NW2d 793] (1971). In Degraffenreid, the Court found it was not necessary to determine whether the evidence was erroneously admitted since exclusion of the evidence would not have meant acquittal for the defendant."

See also People v Character #1, 32 Mich. App. 40, 43; 188 NW2d 12 (1971), People v Dogans, 26 Mich. 411, 414; 182 NW2d 585 (1970), People v Gunn, 34 Mich. App. 106, 109; 190 NW2d 793 (1971).

The defendant's specific allegations are that the issuance and execution of an otherwise valid arrest warrant for probation violation constituted a "pretext" arrest and that subsequent questioning was "contrary to the spirit and teachings of Massiah v United States, 377 U.S. 201 [84 S. Ct. 1199; 12 L. Ed. 2d 246] (1964), Escobedo v Illinois, 378 U.S. 478 [84 S. Ct. 1758; 12 L. Ed. 2d 977] (1964), and Miranda v Arizona, 384 U.S. 436 [86 S. Ct. 1602; 16 L. Ed. 2d 694] (1966)". We are unable to agree with the defendant that a confession should be suppressed as the fruit of an illegal arrest where the arrest of concern was of unquestioned validity, pursuant to a judicially sanctioned warrant. A pretext arrest is disfavored because arrest may bestow upon the police a right to conduct a search and seize property. But, arrest does not confer upon the officers a right to interrogate. That can be accomplished only with the defendant's consent, and many safeguards have been implemented to protect that right. Thus, if the arrest was a pretext to gain the police the right to question the defendant or to coerce a confession, it most certainly failed, as they gained no such right. There being no prejudice to the defendant, there is no purpose in suppressing the statements.

As to the defendant's second ground, we feel that the "spirit" of Massiah, Escobedo and Miranda is conveyed in the letter thereof. He does not assert, nor do we find, any violations of the letter of those decisions. We have also examined the record of the defendant's trial and conclude that had these statements been suppressed, the testimony of his companion, alone, if believed, was adequate to justify conviction for the offense of involuntary manslaughter.

The defendant's remaining assignments of error are equally meritless. See People v Brocato, supra, and People v Bukoski, supra.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.