DocketNumber： Docket 44990
Citation Numbers： 303 N.W.2d 217, 103 Mich. App. 405
Judges： R.B. Burns, P.J., and Maher and J.T. Kallman
Filed Date： 2/3/1981
Status： Precedential
Modified Date： 8/25/2023
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Joseph T. Barberi, Prosecuting Attorney (by Mary C. Smith, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.
James Krogsrud, Assistant State Appellate Defender, and John Nussbaumer, Research Attorney, for defendant on appeal.
Before: R.B. BURNS, P.J., and MAHER and J.T. KALLMAN,[*] JJ.
R.B. BURNS, P.J.
Defendant was convicted by a jury of voluntary manslaughter, MCL 750.321; MSA 28.553. There is no doubt that the defendant shot her husband and that he died from loss of blood due to the wound. Defendant claims that the trial court erred by allowing the prosecutor to enter into evidence excerpts from her personal diaries.
The first issue raised by defendant is that the people conducted an unreasonable search and seizure of the diaries in violation of the Fourth *407 Amendment to the United States Constitution and Const 1963, art 1, § 11. The facts brought out at the hearing on the motion to suppress the diaries refute this claim.
Approximately one week after the shooting, relatives of the deceased were cleaning the home previously occupied by defendant and the deceased, and they discovered the diaries. They glanced through them, and they believed that there was material in the diaries that the authorities should know about. The deceased's sister took the diaries to the prosecutor's office and pointed out certain sections in the diaries wherein defendant expressed hatred for the deceased. Detective Sergeant Morris Vincent testified that it was his impression that the deceased's sister had gone through the diaries quite extensively before turning them over to the prosecutor.
The Fourth Amendment to the United States Constitution and Const 1963, art 1, § 11 protect persons from unreasonable searches and seizures. However, this protection is not applicable when the activity is conducted by private parties. People v Langley, 63 Mich App 339; 234 NW2d 513 (1975). Where the police neither encourage nor authorize a private citizen to seize evidence, that evidence may be used in a trial whether or not the search was unreasonable. People v Holloway, 82 Mich App 629; 267 NW2d 454 (1978). Defendant's rights were not violated by the trial court's admitting the diary excerpts into evidence.
Next defendant claims that the introduction of the diary excerpts into evidence violated her rights under the Fifth Amendment to the United States Constitution and Const 1963, art 1, § 17, which provide that no person shall be compelled in any criminal case to be a witness against himself. In *408 this case, as in Andresen v Maryland, 427 US 263; 96 S Ct 2737; 49 L Ed 627 (1976), defendant was not compelled to testify against herself. She voluntarily wrote in the diaries and the diaries were handed over to the authorities by third parties. Defendant's rights were not violated.
Lastly, defendant's appellate counsel uses a shotgun approach and claims a multitude of errors in the prosecutor's conduct of cross-examination and rebuttal. The instances of conduct complained of on appeal were either not objected to by trial counsel, not improper in light of the defense asserted, or not of such a nature as to amount to reversible error.
Affirmed.
[*] Circuit judge, sitting on the Court of Appeals by assignment.