Summary
In People v Cochran, 84 Mich. App. 710, 712; 270 N.W.2d 502 (1978), this Court stated that "a failure to move for severance precludes review of that issue, except to remedy a miscarriage of justice".
Summary of this case from People v. DunlapOpinion
Docket No. 77-2690.
Decided July 17, 1978.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Timothy Scallen, Assistant Prosecuting Attorney, for the people.
Gerald M. Lorence, P.C., for defendant on appeal.
Defendant was convicted of two counts of delivery of heroin, MCL 335.341(a); MSA 18.1070(41)(a), by a jury on March 9, 1977. He appeals of right, raising a single issue.
Defendant was originally charged with both delivery of heroin and conspiracy to deliver heroin. He was tried jointly with an alleged coconspirator, Patricia Flowers, who was also tried on an unrelated count of delivery of heroin. Prior to trial, the conspiracy count was dropped. Defendants were then tried jointly. There was no objection or motion for severance.
On appeal, defendant Cochran argues that the joint trial on unrelated transactions resulted in "manifest injustice", relying on People v Billingslea, 70 Mich. App. 371; 246 N.W.2d 4 (1976).
People v Slate, 73 Mich. App. 126; 250 N.W.2d 572 (1977), cited Billingslea with approval. However, in Slate, the defendant did object at trial to the joinder. Id. at 128.
Generally, an issue based on alleged error at trial must be preserved by an objection. Absent an objection, appellate review is precluded except in compelling circumstances to avoid a miscarriage of justice. See, e.g., People v Oliphant, 399 Mich. 472, 501; 250 N.W.2d 443 (1976). See generally MCL 769.26; MSA 28.1096; GCR 1963, 529.1.
We find no miscarriage of justice in the case at bar. Defendant Cochran was represented by his own attorney. He was aware from the beginning of proceedings that there would be a joint trial. Also, the court and his counsel repeatedly emphasized his separateness from codefendant Flowers.
To the extent Billingslea indicates that a joint trial of codefendants on separate offenses is per se reversible error absent an objection, we decline to follow it. As stated above, the general rule in Michigan is that an appellate court will consider error to which no objection was raised only to prevent a miscarriage of justice. Billingslea relied on Federal cases under Federal Rules of Criminal Procedure 8(b) in which there was an objection or motion for severance, while apparently ignoring other Federal cases holding that a failure to object to a joint trial precludes appellate review. See, e.g., United States v Papadakis, 510 F.2d 287 (CA 2, 1975), United States v Ross, 464 F.2d 1278 (CA 9, 1972), United States v Del Purgatorio, 411 F.2d 84 (CA 2, 1969), Cupo v United States, 359 F.2d 990 (CA DC, 1966). We believe the better view is that expressed in those cases and the American Bar Association's Standards Relating to Joinder and Severance (Approved Draft, 1968), § 2.1, and Commentary at 27. I.e., a failure to move for severance precludes appellate review of that issue, except to remedy a miscarriage of justice.
See, e.g., United States v Bova, 493 F.2d 33, 37 (CA 5, 1974), Ingram v United States, 272 F.2d 567, 570-571 (CA 4, 1959).
Other sections of the ABA Standards Relating to Joinder and Severance (Approved Draft, 1968), in particular, §§ 1.1, 1.2 and 2.2 have been noted with approval by Michigan courts. See People v Tobey, 401 Mich. 141, 153 n 17; 257 N.W.2d 537 (1977), People v Slate, supra, at 136.
Affirmed.