People v. Besonen, 37

• Decision Date: 13 September 1966
• Docket Number: No. 37,No. 1,37,1
• Citation: 4 Mich.App. 131,144 N.W.2d 653
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Woodrow BESONEN, Defendant-Appellant. Cal
• Court: Court of Appeal of Michigan — District of US

Page 653

144 N.W.2d 653

4 Mich.App. 131

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Woodrow BESONEN, Defendant-Appellant.

Cal. No. 37.

Court of Appeals of Michigan, Division No. 1.

Sept. 13, 1966.

John D. O'Connell, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Samuel H. Olsen, Pros. Atty., Wayne County, Detroit, for appellee.

Before GILLIS, P.J., and FITZGERALD and WATTS, JJ.

GILLIS, Judge.

Upon leave granted by the Supreme Court the defendant, Woodrow Besonen, prosecutes this appeal from his conviction on September 24, 1959, of second degree murder.

The body of George Sweigert was found partly submerged in the laundry tubs in the basement of his home on the morning of February 6, 1959. He was killed by a blunt instrument that was used to inflict multiple compound fractures of the skull and bones of the face. A bloodstained ball peen hammer was found near the body. There was a considerable amount of blood on the basement floor and a streak of blood leading from the stairway to the laundry tubs. The first floor had been ransacked by either a burglar or someone wanting it to appear that a burglary had occurred.

An autopsy was performed late on February 6, from which the medical examiner determined the time of death to be 9 p.m. on February 5, plus or minus three to four hours. Sweigert had a 6:30 p.m. appointment with his doctor, which he did not keep.

The defendant and Sweigert were close friends. They had worked for the same employer for several years and for some time had been driving to work together. Normally the defendant would come to Sweigert's home about 6:45 in the morning and ride to work in Sweigert's car. They usually would arrive at work at about 7:20.

On February 5 the defendant and Sweigert left work at 4:30 p.m. and went to a bar where they had a couple of drinks. They left the bar together, apparently on friendly terms, and were seen outside Sweigert's home about 5:15 p.m. Defendant testified that he immediately drove home, but this was contradicted by testimony of a neighbor who said he saw the defendant standing by his car while Sweigert assisted a lady whose automobile was stuck on the ice. There was no evidence that the defendant entered Sweigert's home nor at any time was there testimony that the defendant and Sweigert were on anything but friendly terms.

On February 6 the defendant arrived at work about 7 a.m. He testified that he arrived early because he had to put up tarps that day before work could begin. The defendant told fellow workers that he had gone by Sweigert's home, knocked on the door and 'got no answer.' There were no lights on and he left and came to work in his own car. After he had been on the job approximately half an hour, the defendant called the general superintendent and told him he had gone to Sweigert's home 'and he knocked on the door and he didn't get no answer.'

That afternoon the body was discovered. The defendant was interviewed at his home by detectives and when they 'didn't get a satisfactory answer' from the defendant they placed him under arrest.

The defendant was questioned intermittently that afternoon and evening and during the next day (February 7). That evening at about 10:30 defendant's attorney came to police headquarters. According to the examination testimony of a police officer, the attorney was not refused permission to see the defendant, but it was suggested that since the hour was late he should come back on Sunday and that this was agreed to by the attorney.

During the investigation, the clothing worn by the defendant on the day the offense occurred was examined for bloodstains. On the inside left pant leg a bloodstain 1/32 of an inch in diameter was found. Due to the size of the stain, it was marked 'insufficient for human blood type identification' by the examiner at the Detroit police department scientific laboratory.

On February 9, 1959, the defendant was brought to court on a writ of habeas corpus. Disposition of the writ was adjourned for 24 hours; adjourned on February 10 for an additional 24 hours; and ultimately dismissed on February 11, when the defendant was arraigned on a warrant charging second degree murder. Approximately two hours after the first adjournment, the defendant made a statement which was stenographically recorded and read into evidence at defendant's trial. During the trial the defendant testified in his own behalf. The discrepancies in his statements to the police and to co-workers, and his trial testimony were fully explored on cross-examination.

The foregoing recital of facts indicates the nature of the People's case against the defendant. The People sought to prove that the defendant was at Sweigert's home as late as 5:15 on the afternoon of the 5th; that Sweigert died at 9 p.m., plus or minus three to four hours; and that defendant failed to report to the authorities when he saw the evidence of foul play at the decedent's home on the morning of the 6th.

The sufficiency of the evidence is not raised in this appeal. We do not, therefore, decide whether the evidence was sufficient to justify conviction. ¹ We discuss the evidence only to show that the case against the defendant was circumstantial and slight. Defendant's claims of error will be viewed by this Court in that light. Cf. Fiswick v. United States (1946), 329 U.S. 211, 217, 218, 67 S.Ct. 224, 91 L.Ed. 196.

The defendant was arrested Friday afternoon, questioned that day and the next, gave conflicting stories, and still was not arraigned. ² There is a dearth of evidence that the defendant was represented by or advised of his rights to an attorney prior to or during any of these statements made on February 6 or 7. Even allowing a reasonable time to investigate defendant's statement, there is no excuse for failing to arraign the defendant Saturday night or Sunday as then required by C.L.1948, § 764.13 (Stat.Ann.1954 Rev. § 28.872), ³ and C.L.1948, § 764.26 (Stat.Ann.1954 Rev. § 28.885).

'Magistrates of Michigan are * * * on legal duty at all times; Sundays, holidays or no.' People v. Hamilton (1960), 359 Mich. 410, 417, 102 N.W.2d 738, 742.

The People argue that the statements obtained from the defendant from the time of his arrest on February 6 until arraignment on February 11 were not confessions but exculpatory statements and were not, therefore, within the rule of People v. Hamilton, supra. We do not read Hamilton so narrowly. Its rule of exclusion was intended to deny the police authority to conduct prolonged interrogation of a suspect. Viewed in this light, it is obvious that the Hamilton exclusionary rule applies to confessions, admissions and statements, whether inculpatory or exculpatory. While the recent decision of Miranda v. State of Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 only applies to cases in which the trial began after the date of decision we feel the following succinctly states our position concerning inculpatory and exculpatory statements:

'The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely 'exculpatory.' If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word.' Miranda v. State of Arizona, supra, at pp. 476, 477, 86 S.Ct. at p. 1629. See also Johnson v. State of New Jersey (1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882).

The real test to be applied is whether the statement turned out to be incriminating. Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.

The defendant's conviction became final in 1959 when the period for filing a timely application for leave to appeal had expired. But for this fact we would be required to reverse the conviction because of the exclusionary rule announced in Hamilton, supra. When the Michigan Supreme Court announced its decision in Hamilton it carefully noted that its decision would operate 'prospectively under our supervisory powers.' 359 Mich. at 419, 102 N.W.2d 738. Since we reverse this case for another reason it might be well to say at this time that in any subsequent trial of the defendant the statements taken from him during the period of illegal detention may not be admitted in evidence under the Hamilton rule.

There is a compelling reason for reversing this conviction. During the course of the trial the assistant prosecutor introduced testimony to show that some two weeks prior to the homicide the defendant was with the wife of the decedent's brother-in-law. She related an attempt by the defendant to molest her which she successfully resisted. An immediate objection by the defendant was made and the jury was then excused. The following colloquy then took place:

'Mr. Pentolino (Prosecutor): I think it is within point of time because they later told George Sweigert about what happened in this kitchen, and We have reason to believe that George told Besonen.

'Mr. Chalfin: How are you going to put that in evidence with a dead man?

'Mr. Pentolino: I admit we are over the barrel, but I think we can lead up to circumstances, from what was an amicable association to what was a complete breaking off.' (Emphasis supplied.)

This incident involving a woman who was not a relative or close friend of the decedent ⁴ and occurring nearly two weeks prior to the homicide had no probative value whatsoever and was clearly prejudicial. When the jury returned to the...