People v. Bingaman

• Decision Date: 30 October 1985
• Docket Number: Docket No. 69335
• Citation: People v. Bingaman, 375 N.W.2d 370, 144 Mich.App. 152 (Mich. App. 1985)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lonnie Ray BINGAMAN, Defendant-Appellant. 144 Mich.App. 152, 375 N.W.2d 370
• Court: Court of Appeal of Michigan

Page 370

375 N.W.2d 370

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lonnie Ray BINGAMAN, Defendant-Appellant.

Docket No. 69335.

144 Mich.App. 152, 375 N.W.2d 370

Court of Appeals of Michigan.

Submitted March 9, 1984.

Decided Nov. 26, 1984.

Leave to Appeal Denied June 25, 1985.

Release for Publication Oct. 30, 1985.

[144 MICHAPP 153] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Robert Cares, Pros. Atty., for the People.

O'Malley & Welty (by William D. Welty), Three Rivers, for defendant-appellant.

Before MacKENZIE, P.J., and J.H. GILLIS and John E. FITZGERALD ^*, JJ.

PER CURIAM.

After a nonjury trial, defendant was convicted of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278. Defendant was sentenced to imprisonment for from 20 to 85 years, and he appeals as of right.

I

Defendant argues that the trial court erred by [144 MICHAPP 154] declining to suppress evidence of inculpatory statements defendant made during custodial interrogation by state troopers. Defendant was 16 years old at the time he committed the crimes. JCR 6 provides in part:

"1. Right to Counsel: Duty to Advise.

* * *

"(b) A custodial confession made by a child to a peace officer or prosecutor is not admissible in a subsequent juvenile court proceeding against the juvenile unless the juvenile was represented by counsel or waived counsel in accordance with subrule 6.2.

"2. Waiver. A child may voluntarily and understandingly waive the right to counsel. If the parent, guardian, or custodian is the complainant or petitioner, the guardian ad litem must concur in the waiver; if not, a parent, guardian, custodian, or guardian ad litem must concur." (Emphasis added.)

This rule, however, is of no assistance to defendant. The emphasized language shows that the rule was not intended to apply where, as here, the juvenile is tried as an adult in circuit court.

In Fare v. Michael C, 442 U.S. 707, 724-725, 99 S.Ct. 2560, 2571-2572, 61 L.Ed.2d 197 (1979), the Court explained:

"[T]he determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel.

* * *

"This totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved. We discern no persuasive reasons why any other approach [144 MICHAPP 155] is required where the question is whether a juvenile has waived his rights, as opposed to whether an adult has done so. The totality approach permits--indeed, it mandates--inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights." (Citations omitted.)

The trial court here properly applied this totality-of-the-circumstances test, and its finding that defendant knowingly and voluntarily waived his rights is amply supported by the evidence.

Defendant's reliance on cases such as People v. Roberts, 3 Mich.App. 605, 143 N.W.2d 182 (1966), People v. Luther, 20 Mich.App. 42, 173 N.W.2d 797 (1969), People v. Wolff, 23 Mich.App. 550, 179 N.W.2d 206 (1970), and People v. Allen, 109 Mich.App. 147, 311 N.W.2d 734 (1981), is misplaced. In those cases, the Court was concerned with violations of M.C.L. Sec. 764.27; M.S.A. Sec. 28.886, which specifies the procedure for arresting a child under the age of 17, and M.C.L. Sec. 712A.23; M.S.A. Sec. 27.3178 (598.23), which prohibits use of evidence given in the juvenile court proceeding or of the results of such a proceeding in any other case. In Roberts and Allen, the Court considered the statutory violation as part of the totality of the circumstances and concluded that the defendant's confession was involuntary. In Luther and Wolff, the statutory violations themselves led the Court to hold that any use of the defendant's confession was erroneous. Because M.C.L. Sec. 764.27; M.S.A. Sec. 28.886 and M.C.L. Sec. 712A.23; M.S.A. Sec. 27.3178(598.23), in contrast to JCR 6, expressly apply to proceedings other than proceedings in juvenile court, and because the circuit court here correctly applied the totality-of-the-circumstances[144 MICHAPP 156] test, Roberts, Luther, Wolff and Allen are not authority for reversal here.

Defendant argues that his statement should be suppressed because the interrogating officer failed to advise him that he could be prosecuted as an adult. Defendant failed to raise this issue in the trial court and, under such circumstances, this Court will not reverse absent manifest injustice. See, for example, People v. Farnsley, 94 Mich.App. 34, 36, 287 N.W.2d 361 (1979). Defendant relies on cases from other jurisdictions which express concern that the nonadversarial nature of the juvenile proceedings could mislead a defendant into confessing. In State v. Maloney, 102 Ariz. 495, 433 P.2d 625 (1967) (overruled in part on other grounds in State v. Hardy, 107 Ariz. 583, 491 P.2d 17 [1971] ), the court held that a juvenile's confession was inadmissible in an adult prosecution absent evidence that the juvenile had been advised that he could be prosecuted as an adult. Several other jurisdictions have rejected the Arizona requirement of express advice but have held that a juvenile's confession is inadmissible unless the trial court finds from the totality of the circumstances that the defendant was aware of the possibility of prosecution as an adult. People v. Prude, 32 Ill.App.3d 410, 336 N.E.2d 348 (1975); State v. Loyd, 297 Minn. 442, 212 N.W.2d 671 (1973); State v. Gullings, 244 Or. 173, 416 P.2d 311 (1966).

Here, defendant was arrested and disarmed at gunpoint immediately after his commission of the robbery and the stabbing at issue. Defendant was handcuffed and placed in a police car, where he volunteered several inculpatory statements. After receiving the advice required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), defendant made a further inculpatory statement. The interrogating officer was not at first [144 MICHAPP 157] aware of defendant's age and promptly ceased questioning defendant when he learned that defendant was under the age of 17.

The nonadversarial nature of juvenile proceedings could not have misled this defendant into confessing because at the time defendant confessed, the officers believed defendant to be an adult and had given defendant precisely the same adversarial treatment that a similarly-situated adult would have received. The facts of this case convince us that the Arizona rule is broader than necessary to secure its intended purpose, and we therefore decline to adopt it. Even assuming that the rule stated in Prude, Loyd and Gullings accurately reflected Michigan law, no manifest injustice was presented here. Defendant's failure to raise this issue in the trial court prevented the prosecution from developing a detailed factual record relating to this issue. Moreover, defendant's age, the circumstances of his arrest, and the crimes he has committed support an inference that defendant was aware of the possibility of prosecution as an adult.

II

At a sentencing proceeding on November 3, 1982, the court stated that defendant was sentenced to imprisonment for from 20 to 30 years, with credit for 266 days served, and defendant was informed of his right to appeal. The prosecutor then addressed the court and presented a probation officer to explain the potential effects of good time on defendant's sentence. The probation officer's explanation led the court to announce that it would change the maximum term of the sentence, and the court directed the probation officer to give it a written letter of recommendation concerning [144 MICHAPP 158] the maximum term that afternoon. An order dated November 3, 1982, sentenced defendant to two concurrent terms of imprisonment for from 20 to 85 years.

Defendant first argues that, after stating a valid sentence on the record, the trial court lost its jurisdiction to impose a different sentence. In several cases, the Supreme Court has stated that a sentencing judge cannot set aside a valid sentence and resentence the defendant after the defendant has been remanded to jail to await execution of the sentence. In re Richards, 150 Mich. 421, 426, 114 N.W. 348 (1907); People v. Fox, 312 Mich. 577, 581, 20 N.W.2d 732 (1945); People v. Chivas, 322 Mich. 384, 395-396, 34 N.W.2d 22 (1948); People v. Barfield, 411 Mich. 700, 703, 311 N.W.2d 724 (1981); People v. Dotson, 417 Mich. 940, 331 N.W.2d 477 (1983), rev'g 112 Mich.App. 589, 316 N.W.2d 268 (1982). In People v. Meservey, 76 Mich. 223, 226, 42 N.W. 1133 (1889), the Court stated the rule as follows:

"The circuit judge had no power at that time to vacate the sentences, because the authority over the prisoners had passed out of his hands by his own order."

One member of this panel has relied on Meservey to conclude that it is the issuance of the court's sentencing order, not the physical incarceration of the defendant, which terminates the court's authority to modify a sentence. People v. Stewart, 69 Mich.App. 528, 534-535, 245 N.W.2d 121 (1976) (J.H. Gillis, J., concurring in part and dissenting in part). Here, however, the court announced its intention to modify the sentence before defendant had been remanded to jail to await execution of the sentence and before the court's [144 MICHAPP 159] sentencing order had been issued. The sentence eventually imposed by the court was valid under either test. Defendant has not cited,...