People v. Eugene Johnson , 30 Mich. App. 284 ( 1971 )

30 Mich. App. 284 (1971) 186 N.W.2d 94

PEOPLE
v.
EUGENE JOHNSON

Docket No. 9167.

Michigan Court of Appeals.

Decided January 29, 1971. Leave to appeal denied May 7, 1971.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief Assistant Prosecuting Attorney, for the people.

Leonard B. Shulman, for defendant on appeal.

Before: QUINN, P.J., and BRONSON and O'HARA,^[*] JJ.

Leave to appeal denied May 7, 1971. 384 Mich. 838.

PER CURIAM.

January 31, 1969, a jury found defendant guilty of robbery armed^[1] and he was sentenced therefor. His appeal questions the admission in evidence of a knife found in defendant's automobile following a search without a warrant. Defendant also asserts reversible error because the trial court denied his motion to strike the testimony of a witness on the basis of the latter's mental retardation.

September 17, 1968, a robbery at knife point occurred in Flint. The robber, armed with a knife, was seen entering an automobile which left the scene. From the description given of this automobile, the police located it parked in front of defendant's apartment building. The police arrested defendant in his apartment without a warrant and while one officer searched defendant, another searched his automobile, also without a warrant to do so. The knife in question was located by this search. Defendant made a pretrial motion to suppress which the trial court denied on the basis of Const 1963, art 1, § 11, and that the search was reasonable.

In view of People v. Pennington (1970), 383 Mich. 611, the first ground relied on by the trial court for denying the motion to suppress was error. However, on authority of People v. Danny Williams (1969), 16 Mich. App. 557, People v. Johnnie Mae Jones (1968), 12 Mich. App. 369, and People v. Tisi (1970), 384 Mich. 214, the trial court's finding that the search was reasonable is affirmed.

In addition, the automobile was evidence of defendant's guilt and was an instrumentality of the crime. The search was reasonable under People v. Cook (1970), 24 Mich. App. 401.

With respect to the testimony that defendant moved to strike, the trial court heard this testimony in the absence of the jury before admitting it. The record supports defendant in his position that the witness is mentally retarded, but it will not support a finding by this Court that the trial court abused its discretion in admitting this testimony and leaving the weight and credibility thereof to the jury. Mead v. Harris (1894), 101 Mich. 585.

Affirmed.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797).