Opinion
Docket No. 4,848.
Decided February 3, 1970.
Appeal from Van Buren, David Anderson, Jr., J. Submitted Division 3 April 10, 1969, at Grand Rapids. (Docket No. 4,848.) Decided February 3, 1970.
Charles Ray Hopper was convicted by a jury of armed robbery. Defendant appeals. Remanded for a Walker hearing.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Donald M. Goodwillie, Jr., Prosecuting Attorney, for the people.
E.C. Sievers, for defendant on appeal.
Before: QUINN, P.J., and HOLBROOK and T.M. BURNS, JJ.
OPINION OF THE COURT
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), 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.
New, effective July 27, 1965; repealed, effective June 8, 1967.
There is here, however, a further question involving scope of the right to counsel under Miranda v. Arizona (1966), 384 U.S. 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).
See also People v. Whisenant (1969), 19 Mich. App. 182; (On Rehearing, 1970), 21 Mich. App. 518, for continuing vitality of this rule in face of Federal Omnibus Crime Control Act. Title II, 18 U.S.C. § 3501.
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.
See People v. Walker (On Rehearing, 1965), 374 Mich. 331.
Remanded for a Walker hearing.
HOLBROOK, J., concurred.
I agree with all points expressed in the majority opinion, except the final one. I cannot agree that a remand for a Walker hearing is required on the facts of this case. Miranda v. Arizona (1966), 384 U.S. 436 ( 86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974), People v. Whisenant (1968), 11 Mich. App. 432, and People v. Walker ( On Rehearing, 1965), 374 Mich. 331, must be read in context with what was involved in those cases. In each it was a confession of guilt. Here the admission for which the majority remand for a determination of its voluntariness is
"I overheard the defendant, Charles Hopper, say that he had served three different hitches or terms in prison in Wyoming and Colorado, and he would not have been involved this evening had he not been drinking."
I vote to affirm.