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12/10/75 PEOPLE v. JONES PEOPLE V. WATKINS

December 10, 1975

PEOPLE
v.
JONES; PEOPLE V. WATKINS



Appeal from Recorder's Court of Detroit, Robert J. Colombo, J.

Leave to appeal applied for.

Bronson, P. J., and V. J. Brennan and D. E. Holbrook, Jr., JJ. D. E. Holbrook, Jr., J., concurred. Bronson, P. J. (concurring in part, Dissenting in part).

SYLLABUS BY THE COURT

Opinion of the Court

1. -- Evidence -- Exclusionary Rule -- Illegal Police Practices -- Fruit of the Poisonous Tree.

The fruit of the poisonous tree doctrine does not render inadmissible all evidence simply because the evidence would not have come to light but for the illegal actions of the police; the question is whether the evidence has been procured by an exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint.

2. -- Evidence -- Exclusionary Rule -- Illegal Police Practices -- Reasonable Foreseeability.

Exploitation of the primary illegality of police activity, sufficient to require the exclusion of evidence obtained by police, occurs where it was reasonably foreseeable by the police when they acted that by engaging in the illegal behavior they might obtain evidence of the kind they obtained.

3. -- Evidence -- Fruit of the Poisonous Tree -- Out-of-Court Identification.

The fruit of the poisonous tree doctrine is inapplicable to exclude a witness's out-of-court identification of a defendant, although there is a causal connection between an illegal police search of defendant's car and the witness's identification, where the police officers who engaged in the illegal behavior had no knowledge of the defendant's connection with the crime charged and could not possibly have foreseen the causal sequence leading to the witness's identification.

4. -- Trial -- Striking Testimony -- Request to Strike.

A trial Judge did not have a duty to strike prior testimony where the defense made no request to the court to strike the testimony.

5. -- Trial -- Evidence -- Motion to Suppress -- Contemporaneous Objection.

Objections to derivative evidence, under the fruit of the poisonous tree doctrine, must be made contemporaneously with a motion to suppress the primary evidence procured from illegal police activity.

6. Appeal and Error -- Instructions to Jury -- Timely Objection.

Error may not be predicated on appeal on the grounds that erroneous jury instructions were given where no timely objection was made and there is no manifest inJustice.

7. Homicide -- Felony Murder -- Instructions to Jury.

Failure to instruct the jury on the elements of the felony underlying a felony-murder charge is not error where the felony is undisputed and the defense is misidentification.

8. Homicide -- Felony Murder -- Escape From Scene.

A murder committed while attempting to escape from the scene of a felony is a felony murder if it is immediately connected with the underlying felony.

Concurring in Part, Dissent in Part by Bronson, P. J.

9. -- Evidence -- Exclusionary Rule -- Illegal Police Practices -- Independent Source -- Dissipated Taint.

Evidence discovered by illegal police activity is not subject to the exclusionary rule and may be admitted where the evidence was gained from an independent source or where the causal connection between the illegal activity and the evidence is so attenuated as to dissipate the taint.

10. -- Lineup -- Identification Testimony -- Exclusion of Evidence -- Illegal Search -- Independent Source -- Reasonable Foreseeability.

Refusal to exclude testimony of a prior lineup identification of a defendant was error where the identification was derived from an illegal search, where there was no independent source for the identification, and where it was reasonably foreseeable by police that the defendant would be placed in a lineup as a result of their illegal search.

11. -- Evidence -- Police Practices -- Illegal Activities -- Foreseeability.

The gaining of evidence is unforeseeable only when it is inadvertently uncovered; every police officer must be deemed to foresee that incriminating evidence could result when the police take affirmative action by following standard police investigatory procedure.

12. -- Evidence -- Police Practices -- Illegal Activities -- Exclusionary Rule -- Inevitable Discovery.

Evidence derived from illegal police conduct is not cured of the taint of illegality on the grounds that the evidence very likely would have been discovered by the police without the illegal activity.

The opinion of the court was delivered by: Brennan

Delvin Jones, Jr., and Stanley Arno Watkins were convicted of felony ...


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