Docket No. 12768.
Decided January 18, 1973.
Appeal from Jackson, Gordon W. Britten, J. Submitted Division 2 January 4, 1973, at Lansing. (Docket No. 12768.) Decided January 18, 1973.
Herman Scott was convicted of breaking and entering with intent to commit a felony. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and Judd R. Spray, Assistant Prosecuting Attorney, for the people.
James R. Neuhard, Assistant State Appellate Defender, for defendant.
Defendant appeals by right from his jury-based conviction of breaking and entering a business establishment with felonious intent. MCLA 750.110; MSA 28.305. Two issues are presented for our consideration.
First, were the trial court's findings of fact at the Walker hearing to determine the voluntariness of defendant's statement to the police clearly erroneous? The testimony was in conflict; the trial judge, who saw and heard the witnesses, was in the best position to judge their credibility. We have examined the entire record, People v. Stanis, 41 Mich. App. 565, 576 (1972), and we are not left with a definite and firm conviction that a mistake was committed. Cf. People v. Hubbard, 19 Mich. App. 407, 413 (1969). The trial court's findings are amply supported by the record, People v. Yacks, 38 Mich. App. 437, 440 (1972), and must therefore prevail. Moreover, the trial judge correctly excluded the testimony of Mr. Edwards; the proffered testimony was clearly hearsay (statement of past state of mind), and not within the scope of any recognized exception to the hearsay rule. Cf. People v. Freeman, 32 Mich. App. 321, 323 (1971) (exception for declarations of present state of mind); McCormick, Evidence (2d ed), §§ 294-296, pp 694-704.
People v. Walker, 374 Mich. 331 (1965).
Second, did the trial court err in overruling defendant's objection to the admission of certain real evidence, seized pursuant to an allegedly invalid search warrant from the residence of defendant's girlfriend? The answer must be "no". Defendant, who, the record shows, lives elsewhere, has no standing to maintain this Fourth Amendment objection. People v. Joshua, 32 Mich. App. 581, 585 (1971).