People v. Hopper
People v. Hopper
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.
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)
There is here, however, a further question involving scope of the right to counsel under Miranda v. Arizona (1966), 384 US 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).
Bemanded for a Walker hearing.
New, effective July 27, 1965; repealed, effective June 8, 1967.
See also People v. Whisenant (1969), 19 Micli App 182; (On Rehearing, 1970), 21 Mich App 518, for continuing vitality of this rule in faee of Federal Omnibus Crime Control Act. Title II, 18 USC § 3501.
See People v. Walker (On Rehearing, 1965), 374 Mich 331.
Dissenting Opinion
(dissenting). 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 US 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.
Reference
- Cited By
- 13 cases
- Status
- Published