The opinion
*450 M. J. Kelly, J.
(dissenting). I disagree that reversal is warranted here.
The question of the admissibility of defendant’s confession was decided at a Walker hearing well in advance of trial. The hearing was conducted November 1, 1973, following which defense counsel made a motion to suppress evidence and a motion to quash, each of which was denied. Those orders are not challenged on this appeal. The voluntariness of defendant’s confession is not at issue. Trial commenced November 20th and concluded November 21, 1973. Before that trial commenced, a transcript of the Walker hearing was ordered and produced. Defendant had the transcript prior to trial and he and his trial counsel well knew what was coming when the police officer who conducted the interrogation took the stand.
The dispute on appeal involves Officer Popp’s reading verbatim his memorandum of the incriminating interview. The exchange quoted in the majority opinion appears to me to have been a predetermined attempt at laying the foundation required by People v Rodgers, 388 Mich 513, 519 ; 201 NW2d 621, 624 (1972). The prosecutor’s intent, I surmise, was to give the officer a question he could not answer affirmatively so as to lead him into the reading of the memorandum. Defendant did not object for a very good reason. He knew what was coming because of the Walker ruling. If he made an unnecessary fuss before the jury it would weigh against him when the confession was allowed either in substance or in transcript. The defense attorney knew what was coming, he chose not to fight the technical procedural battle only to lose the evidentiary war. This issue was not preserved for our review. People v Farmer, 380 Mich 198, 208 ; 156 NW2d 504 (1968), People v Ames, 60 *451 Mich App 168, 172 ; 230 NW2d 360 (1975), People v Duncan, 55 Mich App 403, 408-409 ; 222 NW2d 261 (1974).
I also find no merit in defendant’s alternative claim of ineffective assistance of counsel. Defendant on appeal states that defense counsel’s failure to object to the reading of the memorandum without a proper foundation is a serious mistake of counsel for which he can receive relief under People v Degraffenreid, 19 Mich App 702, 715 ; 173 NW2d 317 (1969). The rule is:
"Where the lawyer’s mistake is of such serious proportion that it may have been decisive, where but for the lawyer’s mistake the defendant might not have been convicted, the court may, despite failure to have preserved the error by timely objection, grant a new trial.” 19 Mich App at 716 .
This clearly appears to me to be no mistake at all and qualifies under People v Bottany, 43 Mich App 375 ; 204 NW2d 230 (1972) as a reasonable trial tactic. Defense counsel had the memo before him at the Walker hearing and he had the Walker transcript before him at trial. Perhaps he felt that the verbatim reading would more suit his purpose than the allowable paraphrasing by the officer. Sending this back for retrial serves only to give the defendant a second crack with a new jury; it does not serve to outlaw the confession. A trial lawyer is faced with difficult choices when his adversary misses procedural steps on the way toward admission of incriminating evidence. Such missteps are easily cured following objection— most often to the detriment of the objector. If we do not leave the choice to trial counsel we are substituting our judgment for his under very different circumstances. Every trial lawyer who ever *452 lost a case would have done it differently. The winner made no mistakes.
Appellate counsel turns the second guess on trial counsel wherever the case has been lost. We should not countenance such practice where there has been no miscarriage of justice.
I would affirm.