People v. Allen

• Decision Date: 28 November 1967
• Docket Number: Docket No. 2349,No. 3,3
• Citation: 154 N.W.2d 570,8 Mich.App. 408
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard ALLEN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 570

154 N.W.2d 570

8 Mich.App. 408

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

Docket No. 2349.

Court of Appeals of Michigan, Division No. 3.

Nov. 28, 1967.

George V. Boucher, Wheeler, Upham, Bryant & Uhl, Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, James K. Miller, Pros. Atty., Kent County, Grand Rapids, for plaintiff-appellee.

Before BURNS, P.J., and HOLBROOK and RYAN, ^* JJ.

RYAN, Judge.

On November 3, 1957, a house in Grand Rapids, Michigan, was partially burned. The fire resulted in the death of Albert Mason who was asleep in the house at the time of the fire. Defendant was charged with having murdered Mason in violation of C.L.1948, § 750.316 (Stat.Ann.1954 Rev. 28.548), and upon being convicted he was sentenced to life imprisonment. The sole basis for the appeal in this matter is defendant's allegation that certain statements made by him to the police should have been excluded from the trial because they were not made voluntarily. In support of his position defendant alleges that after his arrest he was held incommunicado for three days and three nights and that the complaint was filed, the warrant issued and arraignment held only after more than 72 hours of incommunicado detention, during which period he had made the statements which he claims were involuntary. He claims that although the police knew that a man had died as a result of the fire, they did not inform defendant that he was being charged with murder until after he had made his incriminating statements. There were further allegations that defendant was deprived of food and sleep, that he was in poor health, and that his bed consisted of a board without any covers. While the police did inform defendant sometime during the course of his detention that he did not have to make a statement and that any statements he made could be used against him, defendant claims that these warnings were not given promptly after his arrest and that consequently his rights were infringed.

These allegations raise a serious question concerning the voluntariness of defendant's statements. In People v. Walker. On rehearing, 1965), 374 Mich. 331, 132 N.W.2d 87, the Supreme Court of this state clearly set forth the procedure to be followed in determining the voluntariness of confessions, and this procedure was expressly made retroactive. The trial judge must conduct a separate hearing out of the presence of the jury to determine the issue of voluntariness. At this hearing, the defendant may take the stand for the limited purpose of making a record of facts and circumstances surrounding the confession. By taking the stand for this limited purpose, the defendant does not waive his right not to testify at the trial in chief. Only after a full and adequate hearing and a finding by the trial judge that the statements were voluntary may such statements be admitted into evidence. Since the trial judge in the case at bar failed to conduct an evidentiary hearing on the facts and circumstances alleged by defendant, this matter must be remanded with instructions to conduct such a hearing. It should be borne in mind that when the voluntariness of a statement is in issue, the burden of proof is upon the people to show voluntariness. People v. Zeigler (1960), 358 Mich. 355, 100 N.W.2d 456.

Defendant alleges that the police failed to comply with the statutes requiring that the accused in a criminal prosecution be taken before a magistrate 'without unnecessary delay' after his arrest (C.L.1948, § 764.13 (Stat.Ann.1954 Rev. § 28.872) ¹ and C.L.1948, § 764.26 (Stat.Ann.1954 Rev. § 28.885)), and he asserts that under the holding in People v. Hamilton (1960), 359 Mich. 410, 102 N.W.2d 738, his statements are inadmissible. In Hamilton, supra, p. 417, 102 N.W.2d p 742, the Supreme Court held that failure to comply with either of the statutory provisions, supra, 'renders involuntary and so inadmissible whatever confessional admissions the detained person may have made while so unlawfully detained.' However, when the Court announced its decision in Hamilton, it provided for prospective operation only (see People v. Besonen (1966), 4 Mich.App. 131, 144 N.W.2d 653), and accordingly, Hamilton is not controlling in the case at bar because defendant was conviction in 1958. Hamilton being prospective in operation would apply to any new trial, but in the instant case the only ground for a new trial would be based on the possible finding by the trial court at the Walker hearing that the statements of the defendant were involuntary. If so, the statements would be inadmissible for that reason and there would be no need to consider the application of the rule in Hamilton.

This is not to say, however, that defendant's incommunicado detention is not a factor to be considered in determining the voluntariness of his statements. At the evidentiary hearing the judge must scrutinize all of the circumstances surrounding defendant's statements. In Culombe v. Connecticut (1961), 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037, the United States Supreme Court held that a confession of murder was involuntary and that therefore its admission into evidence was a denial of due process under the 14th amendment. The Court suggested some relevant factors in determining the issue of voluntariness:

(a) the duration and conditions of detention;

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