People v. Mosley, Docket No. 14318

• Decision Date: 14 January 1974
• Docket Number: No. 1,Docket No. 14318,1
• Citation: 214 N.W.2d 564,51 Mich.App. 105
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Bert MOSLEY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 564

214 N.W.2d 564

51 Mich.App. 105

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Bert MOSLEY, Defendant-Appellant.

Docket No. 14318.

Court of Appeals of Michigan, Division No. 1.

Jan. 14, 1974.

Released for Publication Feb. 11, 1974.

Rehearing Denied March 11, 1974.

Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas M. Khalil, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and FITZGERALD and WALSH,* JJ.

DANHOF, Presiding Judge.

Defendant was charged in a one-count information with the offense of murder in the first-degree committed during the perpetration of a robbery. M.C.L.A. § 750.316; M.S.A. § 28.548. From a jury verdict of guilty as charged, and from a mandatory sentence of life imprisonment, defendant appeals. We are compelled to reverse.

Of the many issues raised by defendant on appeal, we find one dispositive. Prior to trial, defendant moved to suppress as evidence in the case a statement taken by police from defendant on the date of his arrest. This statement was reduced to writing and signed by defendant. The statement thoroughly implicates defendant in the death of one Leroy Williams. An evidentiary hearing was had and defendant's motion to suppress was denied. At trial, the statement was admitted into evidence and read to the jury.

By People v. Robinson, 386 Mich. 551, 194 N.W.2d 709 (1972), we are required to examine the entire record and make an independent determination on the issue of voluntariness. Our review of the record of the Walker ¹ hearing in the instant case reveals that defendant was arrested by Detroit police officers without a warrant at approximately 1:05 p.m. on April 8, 1971. At approximately 2:15 p.m., Officer James Cowie began questioning defendant on possible involvement in a series of robberies that had occurred on the city's lower east side. The testimony of Cowie reveals that defendant was informed of his rights in conformity with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). According to Cowie, defendant did not request counsel, but did decline to answer 'any questions about the robberies.' Thereafter the interrogation of defendant ceased for a time and defendant was handed over to Sergeant Gilbert Hill for further questioning.

Sergeant Hill testified that defendant was again informed of his rights, but that defendant did not request counsel. Hill questioned defendant on his involvement in the robbery-murder of Leroy Williams and defendant denied being implicated. However, when confronted with the statement of an accomplice implicating defendant, defendant confessed at approximately 6:30 p.m. on April 8, 1971.

When defendant declined to answer Cowie's questions, thus indicating that he wished to exercise his Fifth Amendment right to remain silent, the interrogation should have ceased:

'Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody...