Appeal from Recorder's Court of Detroit, James Del Rio, J.
J. H. Gillis, P. J., and Quinn and R. E. Noble,* JJ.
1. -- Sentencing -- Court Rules -- Defendants -- Addressing Court -- Presentencing Report -- Controverting Facts.
The court rules require a trial Judge to give a defendant and his lawyer a reasonable opportunity to advise the court of any circumstances they believe the court should consider in imposing sentence and that both parties shall be given an opportunity at the time of sentencing to respond to the presentence report and to explain or controvert any factual representations disclosed; where these requirements are not met resentencing is required (GCR 1963, 785.8(2), 785.12).
2. Searches and Seizures -- Conversations -- Wiretapping -- Warrant Requirement -- Case Precedent -- Probative Effect.
Introduction into evidence of tape recordings made by police is not proscribed where the conversations were all recorded prior to a Supreme Court decision requiring prior procurement of a search warrant for the making of such recordings.
The opinion of the court was delivered by: Quinn
Jack W. Crawford was convicted of delivery of heroin. Defendant appeals.
Defendant's non-jury trial resulted in his conviction for delivery of heroin, MCLA 335.341(1)(a); MSA 18.1070(41)(1)(a). The trial Judge was ill at time of sentencing, and defendant was sentenced by a substitute Judge.
On this appeal, defendant attacks the sentencing procedure and also asserts reversible error in the admission of certain testimony obtained by monitoring.
GCR 1963, 531 authorizes the substitution of Judges as occurred in this case, but GCR 1963, 785.8(2) requires the Judge to "give defendant and his lawyer a reasonable opportunity to advise the court of any circumstances they believe the court should consider in imposing sentence". GCR 1963, 785.12 requires "both parties shall be given an opportunity at time of sentencing to respond to the presentence report and to explain or controvert any factual representations disclosed".
Neither of the above requirements was satisfied here. The sentencing Judge stated:
"Now, I have simply agreed to pass sentence since Judge Lassiter is in the hospital, or rather he is out now and is home ill. I have simply agreed to pass sentence for Judge Lassiter because Judge Lassiter is my alternate Judge and you know when the Judge is out sick, he passes his sentence on to his alternate Judge and I am his alternate and I am passing the sentence that he wishes passed. Do you understand that?
"Well, here's the thing. If it were my case it would be something different. All I am doing is sitting instead of another Judge. So, what I am talking about, the sentence that I pronounced is the decision of my alternate Judge. It is his case and I can't do something with someone else's case that I might do with my own. If it were my case, it would probably be a different situation. But, you ...