Opinion
Docket No. 77-2561.
Decided May 15, 1978.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, Michael G. Woodworth, Chief Appellate Attorney, and Charles M. Sibert, Assistant Prosecuting Attorney, for the people.
Spence, Martin, Benedict Hornback, for defendant on appeal.
Before: DANHOF, C.J., and BRONSON and CYNAR, JJ.
Defendant was convicted by a jury on April 18, 1977, of carrying a firearm with the intent to use it unlawfully against the person of another, contrary to MCL 750.226; MSA 28.423. He now appeals as of right.
At trial, Lansing Police Officer Richard Van Dussen testified that early on the morning of August 21, 1976, he went to the El Tango restaurant on East Grand River Street in Lansing on three occasions. On the first occasion, at 1 a.m. at the request of the manager of the restaurant, Mrs. Esther Lopez, he escorted defendant from the restaurant. Defendant and Mrs. Lopez had been arguing over defendant's interference with Mrs. Lopez's employees and Mrs. Lopez had summoned assistance to eject him from the restaurant. At 2 a.m. Officer Van Dussen was again summoned to the El Tango restaurant. This time there had been an attempted shooting of defendant by an unidentified individual. Officer Van Dussen offered to take a report from defendant but his offer was refused. Defendant said that he "would take care of the matter himself, and when he found the individual that he would not miss".
At 3:30 on the same morning, Officer Van Dussen cruised by the El Tango restaurant and noted an abnormally large and excited crowd in front of the restaurant. He then stopped to investigate and was told by Mrs. Lopez that an unidentified person had come into the restaurant and had told her that defendant had been pointing a gun at somebody. Upon walking outside, the officer was approached by an unidentified person who told him that the person with the gun was in a red Cadillac which was just down the street.
Officer Van Dussen pursued defendant, stopped him, and searched defendant's person for weapons. When the search disclosed no weapon Officer Van Dussen looked into the car, saw a coat stretched out as though it were covering something, removed the coat, and found a rifle.
Donell Jones testified that defendant had driven up to Jones and pointed a rifle at Jones on the morning of August 21, 1976. Jones had ducked to the floor of his car and when nothing happened approached defendant. Defendant apologized and told Jones that he, defendant, had made a mistake and had aimed at the wrong man. Several witnesses corroborated Jones's testimony. Defendant did not testify, but presented one witness who disputed a minor detail of Jones's testimony, stating that he had never seen Jones talk to defendant following the incident.
Defendant argues that the trial court erred by refusing to suppress the rifle seized by Officer Van Dussen. The United States Supreme Court has long held that an immediate warrantless search of an automobile is permissible so long as there is probable cause to search. Carroll v United States, 267 U.S. 132; 45 S Ct 280; 69 L Ed 543 (1925). See also People v Zeigler, 358 Mich. 355, 361-362; 100 N.W.2d 456 (1960). To determine if an officer had probable cause, one must examine the facts, circumstances and information known to the officer at the time of the search. People v Carpenter, 69 Mich. App. 81, 83; 244 N.W.2d 338 (1976). Probable cause exists when these facts and circumstances warrant a man of reasonable caution in the belief that an offense has been or is being committed. People v Chartrand, 73 Mich. App. 645, 649; 252 N.W.2d 569 (1977). Although the United States Supreme Court has developed a special test for evaluating probable cause when based upon the statements of confidential informants, Aguilar v Texas, 378 U.S. 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), that test is inapplicable to information provided by known informants who are ordinary citizens. People v Emmert, 76 Mich. App. 26, 30; 255 N.W.2d 757 (1977).
In the present case the officer had probable cause to search. Prior to the search he had been informed by two people that defendant had a gun. Although repeating hearsay, Mrs. Lopez was a named informant, not a professional stool pigeon whose credibility is open to question. The other informant, although unnamed, appeared to be testifying from first-hand information. When the information supplied by these citizens is coupled with defendant's prior statement to the officer, probable cause to search was thereby established. Thus, the search of the automobile was valid and defendant's motion to suppress was properly denied.
Defendant next contends that the trial judge erred in admitting testimony regarding the two prior disturbances at the El Tango Cafe. No objection was made to the admission of this evidence. Moreover this evidence was properly admitted as part of the res gestae of the offense. People v Kayne, 268 Mich. 186, 191-192; 255 N.W. 758 (1934), People v McPherson, 38 Mich. App. 534, 543-544; 197 N.W.2d 173 (1972). In fact, defendant used this evidence of the prior incidents as part of his defense, to explain why he had possession of the rifle.
Defendant also contends that certain statements in the prosecutor's closing argument merit reversal. Initially, we note that no objection was made to these comments. Furthermore, the prosecutor's comments were proper. Statements indicating that the evidence is uncontradicted have been previously upheld on numerous occasions. People v LeRoy Morgan, 24 Mich. App. 660, 664-665; 180 N.W.2d 842 (1970), People v Balog, 56 Mich. App. 624, 629; 224 N.W.2d 725 (1974), People v Jacoboni, 34 Mich. App. 84, 86-87; 190 N.W.2d 720 (1971). The prosecutor's comment regarding the absence of evidence relating to defendant's reason for returning to the El Tango relates to the evidence generally and not defendant's failure to testify at trial. People v Fields, 66 Mich. App. 347, 352; 239 N.W.2d 372 (1976). Therefore no error occurred.
Affirmed.