People v. Blackburn

• Decision Date: 19 September 1984
• Docket Number: Docket No. 70148
• Citation: 354 N.W.2d 807,135 Mich.App. 509
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence Carl BLACKBURN, Defendant-Appellant. 135 Mich.App. 509, 354 N.W.2d 807
• Court: Court of Appeal of Michigan — District of US

Page 807

354 N.W.2d 807

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence Carl BLACKBURN, Defendant-Appellant.

Docket No. 70148.

135 Mich.App. 509, 354 N.W.2d 807

Court of Appeals of Michigan.

Submitted Feb. 23, 1984.

Decided June 19, 1984.

Released for Publication Sept. 19, 1984.

[135 MICHAPP 512] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Jeffrey Caminsky, for the people.

James R. Neuhard, State Appellate Defender by Richard B. Ginsberg, Detroit, for defendant-appellant on appeal.

Before HOLBROOK, P.J., and MacKENZIE and QUINNELL ^*, JJ.

[135 MICHAPP 513] PER CURIAM.

Defendant was charged in the Wayne County Circuit Court with premeditated first-degree murder, M.C.L. 750.316; M.S.A. 28.548, and possession of a firearm during the commission of a felony, M.C.L. 750.227b; M.S.A. 28.424(2). Following a jury trial, defendant was convicted of second-degree murder, M.C.L. 750.317; M.S.A. 28.549, and felony-firearm. He was sentenced to serve a term of two years' imprisonment for the felony-firearm conviction to be followed by a term of from 10 to 20 years' imprisonment for the murder conviction.

The underlying facts may be briefly summarized. Defendant, while at his brother's residence, shot and killed S.R. Gentry. Defendant testified that Gentry refused to leave the trailer after being asked to do so and that, rather, Gentry physically assaulted him. Defendant claimed that the shooting occurred in self-defense. Defendant's brother testified that he had asked Gentry to leave his place two or three times, but Gentry would not leave.

In rebuttal, the prosecution called three witnesses who testified that the deceased was a peaceful and law-abiding person.

Prior to trial, defense counsel moved to suppress evidence of his client's prior conviction for carrying a concealed weapon should his client testify. In denying this motion, the trial court said:

"Actually, if he was convicted for a C.C.W., it was punishable in excess of one year under the law. It doesn't make any difference whether it involves theft, dishonesty or false statement. If what we are talking about here, a previous conviction similar to the crime with which he is charged, now the Court would have to give it even greater consideration because it would increase his probability of his having committed this crime." (Emphasis added.)

[135 MICHAPP 514] As a result of this ruling, defense counsel elicited the fact of the prior conviction himself during direct examination of defendant.

The trial court clearly erred in treating the similarity of the charged offenses to the previous conviction as a factor which weighed in favor of permitting impeachment by means of evidence of the prior conviction for carrying a concealed weapon. People v. Baldwin, 405 Mich. 550, 275 N.W.2d 253 (1979); People v. Woods, 97 Mich.App. 197, 293 N.W.2d 762 (1980). In Baldwin, as here, the defendant testified that he had killed the victim, but claimed that he acted in self-defense. The trial court treated the similarity of Baldwin's prior conviction to the charged offense as a factor in favor of allowing evidence of the prior conviction to be used for impeachment purposes. The Supreme Court reversed, without discussing whether the error could be deemed harmless. We nonetheless believe that an error of the type committed here may be deemed harmless in an appropriate case. This is not such a case, however. Apart from defendant, there were no eyewitnesses to the shooting. The evidence that the homicide constituted murder and was not justifiable was significantly less than overwhelming.

Defense counsel brought out the fact of the prior conviction on direct examination. However, since this strategic decision was the result of the trial court's erroneous treatment as to the use which could be made of the evidence of the prior conviction, this issue is not waived. People v. Robert Barker, 411 Mich. 866, 306 N.W.2d 100 (1981). ¹

[135 MICHAPP 515] Defendant made various brief statements to the police. The first was given before defendant was informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Ecorse Police Officer James Hunt explained the circumstances under which this statement was made at the motion to suppress:

"Q. [By the prosecutor ]: What did you do after you identified the people who were present [at the scene]?

"A. I saw who was present. From looking at the fellow on the floor, apparently to me, he had been shot. At least, I believed so. And the nature of the call had been a shooting. I immediately had the other people in the room take a seat on the couch and on a chair, after it had been checked for weapons, to make sure there were no weapons on the couch.

"Q. What happened then?

"A. I told everyone to fold their hands in their lap. Other officers and I took a look around the immediate area for any other weapons.

"Q. Did you find any weapon?

"A. No. I asked if anyone had seen what had happened and received no answer. By this time, the rescue unit arrived and firemen were in the room trying to do something with the fellow on the floor. Once they removed him from the trailer, I informed everyone in [135 MICHAPP 516] the trailer they would have to remain until I could obtain statements from them as to what happened. I then asked if anyone knew where the gun was that was involved and received no answer.

"[Defendant] stood up and said, 'I'll save everybody a lot of trouble. I'm the one that did it.' "

As defendant was being taken from the trailer to the police car which was to transport him to the police station for booking, Officer Leonel Lopez heard defendant twice say: "I'm the one who did it. I'm the one who shot him." Defendant, during the drive to the police station, made yet another statement to Officer Edward Watters under the following circumstances:

"Q. * * * And did you say anything to the Defendant after he was placed in your car?

"A. I had asked him if he had remembered me.

"Q. I see.

"A. I had been in the Detective's Bureau in plain clothes. This particular time, I was in uniform. I asked him if he remembered me.

"Q. And did he respond to that?

"A. Yes, he did.

"Q. What happened?

"A. We were driving to the station. We were in the area of Southfield and Jefferson.

"Q. How far was that away from the trailer where you picked the Defendant up?

"A. Approximately three minutes away. At that point, [defendant] stated that he'd shot the guy because he was 'fucking' with him.

"Q. Those were his exact words?

"A. Yes.

"Q. Had you said anything to him, prior to that?

"A. Not with regard to the shooting, no, sir.

"Q. What happened after he made that statement?

"A. I advised Mr. Blackbrun [sic ] not to say anything until we got to the station. Then he could be advised of his [135 MICHAPP 517] rights if he wants to make a statement. At that time, he can.

"Q. Was anything else said to Mr. Blackburn enroute to the station?

"A. No, sir."

Officer Leonel Lopez actually booked defendant. At the time of the booking, defendant was advised of his Miranda rights. In Officer Lopez's words, the following then happened:

"Once that was done, I walked [Defendant] to a cellblock. Then he asked me, 'How's he doing?' I told him, 'I don't know. I haven't been out there,' meaning, the hospital. He says, 'I hope the mother--F dies.' That was the last I had talked with [defendant]."

Defendant asserts on appeal that evidence of his first statement must be suppressed because it was made without his having the benefit of the Miranda warnings and that each of his subsequent statements must be suppressed as the fruit of the poisonous tree.

To resolve this issue, we must first determine whether defendant was in custody such that he should have been given Miranda warnings prior to Officer Hunt's initial inquiry as to "what happened". ² Custody arises when a person has been [135 MICHAPP 518] deprived of his freedom of action in a meaningful way. People v. Belanger, 120 Mich.App. 752, 760, 327 N.W.2d 554 (1982). To determine whether a defendant was in custody at the time of interrogation, the totality of the circumstances must be examined. The key question is whether the defendant could reasonably believe that he was not free to leave. See e.g., United States v. Hall, 421 F.2d 540, 544-545 (CA 2, 1969). If so, that defendant is in custody.

On appeal, the prosecution notes that Officer Hunt had not focused his suspicions on any one of the four people in the trailer at the time he asked "what happened" and, accordingly, argues that Officer Hunt was not required to give Miranda warnings. However, we agree with the Vermont Supreme Court's holding in State v. Hohman, 136 Vt. 341, 392 A.2d 935, 940 (1978), that, for the purposes of determining if a defendant is in custody, the degree of investigative focus is pertinent only to the extent that it contributes to a defendant's reasonable belief that he is not free to leave. Since in this case Officer Hunt specifically told defendant and the other persons in the trailer that they could not leave until they gave statements concerning what happened, it is manifest that defendant was in custody for purposes of Miranda. ³ Cf. Commonwealth v. Meyer, 488 Pa. 297, 412 A.3d 517 (1980), wherein evidence of a statement given by the defendant to a state police officer after being asked "what happened" was ruled inadmissible because the defendant had been [135 MICHAPP 519] required to stay at the scene by a local police officer to wait for a state trooper and the defendant was not advised of his rights under Miranda before questioning by the state police.

The prosecution also relies heavily on People v. Herman Jackson, 37 Mich.App. 664, 195 N.W.2d 312 (1972). There, this Court held that evidence of the defendant's statement in response to the officer's question "what...