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04/26/76 PEOPLE v. TRIPLETT

April 26, 1976

PEOPLE
v.
TRIPLETT



Appeal from Recorder's Court of Detroit, John Murphy, J.

Leave to appeal denied, 397 Mich 842.

Bashara, P. J., and N. J. Kaufman and D. F. Walsh, JJ.

SYLLABUS BY THE COURT

1. Homicide -- First-Degree Murder -- Second-Degree Murder -- Amended Information -- Reduction of Charge -- Preliminary Examination -- Waiver.

A defense motion at trial that a new preliminary examination be held on grounds that defendant had just recently learned that the information had been amended from a charge of first-degree murder to one of second degree was properly denied where defense counsel had actively sought the reduction in the charge and the record reflected a waiver of any objection to the proposed amendment at the beginning of the trial.

2. Homicide -- First-Degree Murder -- Second-Degree Murder -- Included Offenses -- Notice to Accused.

A charge of first-degree murder ipso facto apprises the accused that he must defend against the lesser included offense of second-degree murder as well.

3. Searches and Seizures -- Plain View -- Police -- Evidence.

Seizure of objects within the plain view of a police officer who is lawfully in a place where he has a right to be is not proscribed by the Federal or state constitutions, and objects so seized are therefore admissible in evidence (US Const, Am IV, Const 1963, art 1, § 11).

4. Evidence -- Relevance -- Judges -- Discretion -- Appellate Review.

The relevance of proffered evidence is a discretionary determination for the trial Judge; an appellate court should refrain from disturbing such determination absent a clear abuse of discretion.

5. -- Evidence -- Identification -- Independent Basis -- Suggestiveness.

An in-court identification which had a basis independent of an allegedly impermissibly suggestive pre-custody photographic showup was properly admitted in evidence.

6. Witnesses -- -- Expert Witnesses -- Ballistics Testimony -- Destruction of Evidence -- Right of Cross-Examination.

The nonproduction of physical evidence which is the subject matter of testimony given by a government expert witness is not in itself a denial of a defendant's right to confront witnesses; the admissibility of expert testimony on ballistics test results was not affected by the accidental destruction of the slugs involved where the government's expert was available for cross-examination and defendant was given the opportunity to probe the authenticity and accuracy of the sources relied upon by the expert.

7. -- Motions -- Plea of Guilty -- Withdrawal of Plea -- Rehearings.

A trial Judge is not required to conduct a second hearing relitigating matters which have been properly ruled on by the examining magistrate.

8. Homicide -- Instructions to Jury -- Aiding and Abetting -- Evidence -- Felony Murder.

There was no error in reading the aiding and abetting statute to a jury in a murder trial in which the prosecution has asserted that the defendant himself committed the homicide where evidence was admitted at trial ...


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