People v. Catey, Docket No. 69275

• Decision Date: 19 October 1984
• Docket Number: Docket No. 69275
• Citation: 135 Mich.App. 714,356 N.W.2d 241
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Christopher Charles CATEY, Defendant-Appellant. 135 Mich.App. 714, 356 N.W.2d 241
• Court: Court of Appeal of Michigan — District of US

Page 241

356 N.W.2d 241

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Christopher Charles CATEY, Defendant-Appellant.

Docket No. 69275.

135 Mich.App. 714, 356 N.W.2d 241

Court of Appeals of Michigan.

Submitted March 12, 1984.

Decided June 28, 1984.

Released for Publication Oct. 19, 1984.

[135 MICHAPP 716] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Paul F. Berger, Pros. Atty., and C. Sherman Mowbray, Jr., Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by Terence R. Flanagan, Lansing, for defendant-appellant on appeal.

[135 MICHAPP 717] Before SHEPHERD, P.J., and ALLEN and KEYES, ^* JJ.

SHEPHERD, Presiding Judge.

Defendant was charged with murdering Violet Tabatto and the wilful or malicious burning of a dwelling house. Following a five-day jury trial, defendant was convicted of second-degree murder and the burning of a dwelling house, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549 and M.C.L. Sec. 750.72; M.S.A. Sec. 28.267. He appeals as of right.

The charges against defendant stemmed from the stabbing death of his landlady, Violet Tabatto, on September 25 or 26, 1981, in the rooming house in which he resided in Grand Ledge, Michigan. The prosecutor's version of the crime was that defendant and Mrs. Tabatto had an argument when he returned to the rooming house at approximately 11 p.m. on Friday, September 25, 1981. The prosecutor theorized that defendant struck the victim and then stabbed her once in the chest with a butcher knife which he had obtained from the kitchen of the house. In an effort to cover up the crime, defendant then took gasoline from his motorcycle and set fire to the house. The primary issue in this case involves incriminating statements which defendant gave to Detectives Boggs and Parkinson of the Michigan State Police on Monday, September 28, 1981. It is defendant's theory that his confession was a product of psychological coercion on the part of the detectives to whom he confessed.

Mrs. Tabatto's body was found in her bed. Grand Ledge Fire Chief Graydon Briggs testified that upon inspection of the building he "observed what appeared to be three separate fires". Briggs stated that there was no connection between any of the [135 MICHAPP 718] fires and that it was obvious that someone had purposely set three separate fires.

Prior to removing the victim's body from the building, investigators discovered that she had a slit-like puncture wound in her chest which was approximately 1 to 1 1/4 inches long. Grand Ledge Police Officer Gregory Bria made the determination that the puncture was a stab wound. The physician who performed the autopsy, Laurence Simson, testified that the wound was indeed a stab wound and that it was also the cause of death.

The police immediately began an investigation. Grand Ledge Police Officer Robert Sipple testified that he went to defendant's mother's apartment at approximately 6:15 a.m. on September 26, 1981, to discuss the crime with defendant. Defendant talked to Sipple but denied any involvement in the killing. At approximately 7 a.m., Officers Bria and Flitton went to the apartment and spoke with defendant. Defendant spoke with these officers and again denied any involvement in the killing. Defendant voluntarily agreed to go to the police station where he made a non-incriminating written statement that afternoon.

The disputed incriminating statements were those made by defendant on September 28, 1981, to detectives at the Lansing State Police Post. Defendant also made incriminating statements to Martin Daughenbaugh, his cellmate at the Eaton County Jail, in which he admitted stabbing Mrs. Tabatto. On May 21, 1982, a Walker [People v. Walker (On Rehearing), 374 Mich. 331; 132 N.W.2d 87 (1965) ] hearing was held to determine the admissibility of the statements.

After being contacted by Officer Bria, defendant agreed to take a polygraph examination. The polygraph examiner, Roger Burns, of the Michigan [135 MICHAPP 719] State Police, testified that shortly after he was introduced to defendant he advised him of his Miranda [Miranda v. Arizona, 384 U.S. 436; 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ] rights. Defendant indicated that he understood his rights. Burns stated that he noticed nothing unusual about defendant's physical or mental condition during the examination.

A polygraph test consists of three parts, the first part being the pre-test where the subject is interviewed regarding background information resulting in the formulation of questions to be asked. The second part is the actual testing phase. The third component of the test is the post-test interview at which the subject is advised of the results and given an opportunity to explain results indicating deception. The facilities at the police post were equipped to allow persons in an adjacent office to monitor the examination via closed circuit television. Detectives Boggs and Parkinson observed the polygraph examination on closed circuit television.

The polygraph examination lasted approximately three hours. Near the end of the test Burns informed defendant that he felt defendant was not being truthful during the polygraph examination. After being so informed, Burns testified, "He [defendant] said he didn't want to talk with me any longer". Burns then went outside the testing room and told Boggs that defendant wanted to leave. Sergeant Boggs then came to the room and took defendant out of the room.

Boggs testified that he observed defendant say to Burns, "I do not want to talk to you anymore". Boggs stated that he immediately went into the room and asked defendant if he would talk to him. Boggs stated that defendant replied that he would [135 MICHAPP 720] talk to him. He and defendant then began walking to Boggs's office.

Upon arriving at Boggs's office, defendant was readvised of his Miranda rights. Boggs then told defendant what he thought had actually occurred on the night of the killing. The sergeant told defendant that he thought that defendant had gone home drunk, began to argue with Mrs. Tabatto, got angry, hit her, panicked and then killed her. Boggs testified that, after being told the foregoing, defendant broke down and started to cry. He cried for approximately five minutes and then made a statement in which he confessed to the killing and to setting fire to the home in an attempt to cover up the crime. After being readvised of his Miranda rights, defendant made a second incriminating statement which was tape-recorded and played at the Walker hearing and at trial.

The testimony of defendant and of the police officers who participated in his interrogation differed as to whether defendant ever requested an attorney to be present at his interrogation. Defendant testified at the Walker hearing that after Sergeant Burns accused him of lying during the polygraph examination he told Burns that he no longer wished to speak to him and that he wanted to see a lawyer. Defendant stated that Burns kept talking to him and once again he stated that he wanted to stop talking and to see a lawyer. Defendant said that he definitely asked for a lawyer three times during the course of his interrogation.

In his recorded confession defendant was asked whether he understood that he could not be questioned without his consent in the absence of an attorney. Defendant answered the question "yes" and that he was aware that if he did not have an [135 MICHAPP 721] attorney that one would be appointed for him. On cross-examination, defendant stated that he did not ask for an attorney at that time because he was "confused".

All four of the police officers present during the proceedings at the state police post (Bria, Burns, Boggs and Parkinson) denied that defendant ever requested to speak to an attorney at any time. Detective Parkinson stated that at no time did defendant assert his right to an attorney and that he affirmatively waived that right.

After hearing the testimony from the witnesses and the attorneys' arguments, the trial court made its ruling. The court recapitulated the evidence which it had considered and found that defendant's statements were voluntarily given and were admissible into evidence. The court also ruled that the statement given by defendant to his cellmate, Daughenbaugh, was admissible.

WAS DEFENDANT'S FIFTH AMENDMENT RIGHT TO REMAIN SILENT

VIOLATED?

The purpose of a Walker hearing (People v. Walker, supra) is to determine whether or not a defendant's statement was given voluntarily. When reviewing a trial court's ruling in a Walker hearing, an appellate court will examine the entire record and reach an independent determination of voluntariness. Absent a definite and firm conviction that the trial court erred, the decision will be affirmed. People v. Crawford, 89 Mich.App. 30, 33, 279 N.W.2d 560 (1979). If there is conflicting evidence and the determination of voluntariness is largely dependent upon the credibility of witnesses, the appellate court should defer to the trial court's findings. People v. Joyner, 93 Mich.App. 554, 558; 287 N.W.2d 286 (1979). Review of the facts of [135 MICHAPP 722] the instant case leads us to conclude that the trial court did not err in holding that defendant had voluntarily given incriminating statements to the police.

Initially, we note that the issue of whether defendant's Fifth Amendment right to remain silent was violated was not raised in the proceedings below. At the Walker hearing, the only question addressed by the parties was whether defendant's Sixth Amendment right to counsel had been violated. As a general rule, this Court will not review an issue raised for the first time on appeal. People v. Davis, 122 Mich.App. 597, 333 N.W.2d 99 (1983); People v. Smith, 118 Mich.App. 366, 325 N.W.2d 429 (1982). However, where an important constitutional question is raised regarding the admissibility of the evidence and is decisive of the outcome of the case, appellate review is appropriate....