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02/26/76 PEOPLE v. ROBINSON

February 26, 1976

PEOPLE
v.
ROBINSON



Appeal from Saginaw, Eugene Snow Huff, J.

Quinn, P. J., and J. H. Gillis and Allen, JJ.

SYLLABUS BY THE COURT

1. -- Right to Counsel -- Police Questioning -- Evidence -- Admissibility.

A defendant has the right to have an attorney present during questioning by police, and a defendant's statement to police made during questioning is not admissible at trial where the defendant's request for an attorney is not honored.

2. -- Right to Counsel -- Police Questioning -- Waiver -- Evidence -- Admissibility.

Admission in evidence of a defendant's statement to police was not reversible error, although the defendant had requested that an attorney be present during the questioning and one was not provided, where (1) the entire exchange between the defendant and police indicates the request for counsel was waived, (2) the waiver was not a result of abuse, argument or persuasion, (3) there was no objection to admission of the statement, and (4) there was no miscarriage of Justice (MCLA 769.26; MSA 28.1096).

3. -- Appeal and Error -- Preserving Error -- Objections.

Alleged error in admitting testimony of prosecution witnesses concerning threats made by a defendant is not preserved for appellate review where defense counsel, after his objection to such testimony by one prosecution witness was sustained, reintroduced the matter himself, and where he failed later to object when the prosecution again raised the matter.

4. -- Prosecutor's Remarks -- Objections -- Miscarriage of Justice -- Curative Instructions -- Appeal and Error.

A defendant's conviction will not be reversed because of a prosecutor's allegedly prejudicial statements where no objection was made, there was no miscarriage of Justice, and any prejudice could have been cured by instruction.

5. Homicide -- Murder -- Manslaughter -- Voluntary -- Involuntary -- Instructions to Jury.

Instructions to the jury which fail to distinguish between involuntary and voluntary manslaughter do not result in reversible error where the defendant is convicted of second-degree murder.

The opinion of the court was delivered by: Quinn

Hesikiah Robinson was convicted of second-degree murder. Defendant appeals.

Charged with second-degree murder, MCLA 750.317; MSA 28.549, and tried by a jury, defendant was convicted of the charged offense. Following the sentence he appeals on the basis of six alleged reversible errors.

1. "Did the testimony of a Policeman regarding portions of defendant's statement which was deemed inadmissible at a Walker hearing constitute prejudicial error, when the inadmissible statement was used to ...


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