People v. O'Brien

• Decision Date: 25 March 1982
• Docket Number: Docket No. 44808
• Citation: 113 Mich.App. 183,317 N.W.2d 570
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy E. O'BRIEN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 570

317 N.W.2d 570

113 Mich.App. 183

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy E. O'BRIEN, Defendant-Appellant.

Docket No. 44808.

Court of Appeals of Michigan.

Submitted June 10, 1981.

Decided Feb. 17, 1982.

Released for Publication April 6, 1982.

Rehearing Denied March 25, 1982.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Edward J. Grant, Pros. Atty., and John L. Wildeboer, Asst. Pros. Atty., for the People.

Mardi Crawford, Asst. State Appellate Defender, Detroit, for defendant-appellant on appeal.

Before DANHOF, C. J., and CAVANAGH and FREEMAN, ^* JJ.

DANHOF, Chief Judge.

Following a jury trial, defendant was convicted of first-degree murder, M.C.L. Sec. 750.316; M.S.A. 28.548. He was sentenced to life imprisonment and now appeals as of right. Of the eight assertions of error raised by defendant, we conclude that none, individually or collectively, necessitates reversal. Therefore, defendant's conviction is affirmed.

This case arose from the fatal shooting of Lt. William Nixon of the Jackson Police Department. The victim was discovered by police officers who had been dispatched to the intersection of Berry Road and US-127 in Jackson County in the early morning hours of April 27, 1978. Upon arriving at the scene, the officers observed Lt. Nixon's automobile parked behind a pickup truck attached to a Lo-boy trailer, carrying a bulldozer. Both doors of Lt. Nixon's automobile were open, as, apparently, were both doors of the pickup truck. ¹ Lt. Nixon was found lying on the shoulder of the highway. Although he was still alive, he was unable to speak. Lt. Nixon died a short time later.

A helicopter was dispatched to the scene, as were tracking dogs and their handlers. A search of the area began. Defendant was apprehended in a swamp, east of the highway.

Following a preliminary examination, defendant was bound over on two counts of first-degree murder. The magistrate found that there was sufficient evidence to permit a trier of fact to find premeditation and deliberation. Defendant was ultimately convicted under this theory. The magistrate also found that a felony-murder charge could be supported because there was evidence that the murder was committed in the course of a larceny over the sum of $100.

Due to the publicity surrounding this case, an order for a change of venue was entered on November 8, 1978, and the trial was held in Midland, Michigan.

Defendant's trial spanned a two-week period, during which numerous witnesses testified. The prosecution's theory of the case was that defendant had stolen a bulldozer and was traveling along the highway when he was pulled over by Lt. Nixon. The prosecution theorized that in order to avoid capture the defendant murdered Lt. Nixon.

Defendant's theory of the case was that he had been hired by a man named "Larry" to drive the pickup truck and bulldozer. When they were stopped by Lt. Nixon, Larry pulled a gun and shot the officer. Defendant maintained that he did not have any knowledge of the gun or of any plan to shoot the officer. Defendant asserted that after shooting Lt. Nixon, Larry escaped from the scene.

After the defendant's conviction, a claim of appeal was filed. This Court remanded for a Walker ( People v. Walker [On Rehearing] 374 Mich. 331, 132 N.W.2d 87 [1965], hearing which was held on June 10, 1980.

Defendant raises numerous issues on appeal. Due to the extremely complicated nature of this case and the voluminous evidence produced at trial, significant facts will be noted only as they relate to the various issues.

I

This issue concerns the admissibility of evidence of various statements that the defendant made to the police after being taken into custody. In order to put this issue in its proper context, it is necessary to briefly outline some of the facts surrounding defendant's apprehension.

After arriving at the scene, Troopers William Flowers and Bert Lardie, tracking dog handlers, went to investigate a green object spotted in a swamp. When Trooper Flowers approached the object he could see that it was a man (i.e. defendant) and turned his dog loose. The dog jumped on defendant, who was face down in the water. Trooper Flowers handcuffed one of the defendant's hands. A struggle ensued, during which a gun was taken from the defendant's belt. Other officers arrived, and both handcuffs were put on the defendant.

Officer James Conant testified that during the struggle he struck defendant on the side of the face and on the back with the butt of his shotgun. No one else hit the defendant during the struggle.

Defendant was removed from the swamp and taken across several fields and fences. He was returned to the highway and surrendered to the custody of Sgt. Darwin Nystrom. The defendant was patted down for weapons. After being placed in a police vehicle he was given his Miranda warnings ( Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 [1966] for the first time. Defendant stated he would like to contact an attorney. He was subsequently transported to the police post.

As noted above, a Walker hearing was held after defendant's conviction to determine the admissibility of evidence of various statements that he had made to police. At the hearing, the prosecutor indicated that no pretrial hearing was held because he and defense counsel had agreed not to use a full statement made by the defendant after he was advised of his rights and requested an attorney. At the conclusion of the Walker hearing, the trial court ruled that statements elicited from the defendant before the Miranda warnings were given were not the product of an interrogation, and were admissible. The trial court found that the statements made after Miranda warnings were given were not admissible but observed that they were not used in the prosecution's case-in-chief. The court found that no error occurred. On appeal, the defendant asserts that various statements made by him after he was taken into custody were improperly admitted into evidence, because they were involuntary and were elicited in contravention of the requirements of Miranda.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held that the prosecution may not use statements stemming from a custodial interrogation without demonstrating the use of procedural safeguards to secure the privilege against self-incrimination. "Custodial" has been defined to include those statements made where a defendant is deprived of significant freedom of action. Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). Interrogation has been held to be a practice that police know is reasonably likely to invoke a response that the prosecution may seek to use at trial. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Miranda also precludes the prosecution from proving defendant's guilt with statements made by the defendant while in custody, prior to obtaining or effectively waiving assistance of counsel. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). It should also be noted that statements made in violation of Miranda may, under certain circumstances, be used for impeachment purposes. Harris, supra.

Statements that are volunteered by a defendant need not be suppressed at trial, even if the volunteered remark was not preceded by Miranda warnings. Miranda, 384 U.S. at 478, 86 S.Ct. at 1629; People v. Germain, 91 Mich.App. 154, 284 N.W.2d 260 (1979), rev'd on other grounds 411 Mich. 858 (1981). A police officer's question, prompted by a defendant's volunteered remark, falls under the same exception. People v. Leffew, 58 Mich.App. 533, 228 N.W.2d 449 (1975).

Defense counsel's failure to object will not preclude review of an alleged infringement of a defendant's constitutional right to remain silent. Whether reversible error occurred, in the absence of a timely objection, is determined by application of a two-part test: (1) whether the error was offensive to the maintenance of a sound judicial system; and, (2) if not, whether that error was harmless beyond a reasonable doubt. See People v. Swan, 56 Mich.App. 22, 223 N.W.2d 346 (1974).

On appeal, defendant asserts that error occurred when evidence of statements that he made after he was in custody was admitted. We will address only those arguments raised by defendant which merit discussion.

A. Police witnesses testified, without objection, that immediately after defendant's seizure in the swamp, defendant was asked if anyone was with him. Defendant replied, "I am alone." In its opinion, rendered after the Walker hearing, the trial court held that the police had elicited this statement for their own protection and not to incriminate the defendant. The trial court reasoned that under these circumstances no Miranda warnings were required. In reaching this conclusion, the trial court relied on what it termed the "emergency exception" found in People v. Toler, 45 Mich.App. 156, 206 N.W.2d 253 (1973), and People v. Ramos, 17 Mich.App. 515, 170 N.W.2d 189 (1969). See also People v. Coppernol, 59 Mich.App. 745, 229 N.W.2d 913 (1975). On appeal, defendant argues that the Toler and Ramos cases were wrongly decided.

In Ramos, defendant's wife told police that her husband had threatened her, that he had a gun, and that he was going to a specific bar. Police went to that bar and asked defendant where the gun was. Defendant replied that it was in his belt. Defendant's statement and the gun were held admissible. Citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), this Court found that the police had no obligation to warn defendant of his constitutional rights before taking the gun because they had reason to believe that defendant was armed and dangerous.

In Toler, this Court again found an exception to Miranda when police asked a question that was...