DocketNumber： Docket 19876
Judges： Holbrook, Allen
Filed Date： 3/23/1976
Status： Precedential
Modified Date： 11/10/2024
Michigan Court of Appeals.
*2 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Gary L. Walker, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Edward R. Wilson, Director, by Aloysius J. Lynch, Special Assistant Attorney General), for the people.
John B. Phelps, Assistant State Appellate Defender, for defendant.
Before: D.E. HOLBROOK, P.J., and ALLEN and D.E. HOLBROOK, JR., JJ.
D.E. HOLBROOK, JR., J.
On February 1, 1974, the defendant entered a plea of nolo contendere to a charge of unarmed robbery, MCLA 750.530; MSA 28.798. He was thereafter sentenced to serve a 5 to 15 year prison sentence and now appeals as of right.
On appeal defendant raises three allegations of error, only two of which are of decisional merit.
Initially defendant claims that the trial court failed to comply with the provisions of GCR 1963, 785.7(3)(d) insofar as such rule requires the judge to first state reasons for believing that the interests of the defendant and the proper administration of justice do not require interrogation of the defendant regarding his participation of the crime. Here the trial judge stated:
"I will not inquire of you as to your participation in this crime and I will do so for the reason that I understand that you are reticent about telling the court exactly what you did do."
*3 In our opinion when one is inclined to be silent or uncommunicative in speech this is sufficient reason for believing that the interests of the defendant and the proper administration of justice do not require interrogation of the defendant regarding his participation in the crime.
The only other issue raised by defendant worthy of our discussion is his contention that the trial judge committed reversible error by using improper testimony to establish substantial support for a finding that the defendant was in fact guilty of the offense to which he offered his plea.
Here the trial judge conducted a hearing at which time the only witness called was one Marvin Gauthier, a captain of the Marquette Police Department, who related to the court statements made to him by the victim, following his response to a complaint with respect to the instant unarmed robbery. Clearly the testimony of Police Captain Gauthier was hearsay. Defendant, however, did not object thereto. Under such circumstances we hold such hearsay evidence may be considered and given probative effect as if it were in law competent evidence. Hearsay evidence which has been admitted without objection is entitled to consideration by an appellate court in support of the trial court's findings in a criminal case. See 30 Am Jur 2d, Evidence, § 1103, pp 268-269.[1] Also see Stone v Posen, 310 Mich. 712; 17 NW2d 870 (1945). Hence, we hold that unobjected *4 to hearsay testimony is sufficient to establish substantial support for a finding that the defendant is in fact guilty of the charged offense or the offense to which he is offering a plea of nolo contendere.
An examination of the record clearly leads us to believe that the defendant's final allegation of error, that a factual basis for the plea was not established, is without merit.
Affirmed.
ALLEN, J., concurs in result only.
[1] "Although hearsay evidence may, as a rule, be incompetent and inadmissible to establish a fact, such incompetency and inadmissibility may be waived by failure to object thereto, in which case it is almost uniformly held that it may be considered, if relevant, and may be given probative, or its natural probative, effect, as if it were in law competent evidence. Accordingly, it has been held that hearsay evidence which would be inadmissible if objected to but which is admitted without objection may properly be considered by the trier of facts, and that it should be considered by the trial court in passing upon a motion for a directed verdict, a motion to set aside a verdict for insufficiency of evidence, or a motion for nonsuit. Hearsay evidence which has been admitted without objection has also been held entitled to consideration by an appellate court in support of the trial court's findings, and in support of a verdict or judgment of conviction in a criminal case." (Footnotes omitted.)