People v. D'Avanzo

• Decision Date: 06 July 1983
• Docket Number: Docket No. 62862
• Citation: 125 Mich.App. 129,336 N.W.2d 238
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Roberto D'AVANZO, Defendant-Appellee. 125 Mich.App. 129, 336 N.W.2d 238
• Court: Court of Appeal of Michigan — District of US

Page 238

336 N.W.2d 238

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Roberto D'AVANZO, Defendant-Appellee.

Docket No. 62862.

125 Mich.App. 129, 336 N.W.2d 238

Court of Appeals of Michigan.

Submitted Nov. 3, 1982.

Decided April 20, 1983.

Released for Publication July 6, 1983.

[125 MICHAPP 130] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., James J. Gregart, Pros. Atty., and Richard A. Santoni, Asst. Pros. Atty., Appellate Division, for the People.

Frederick A. Milton, Kalamazoo, for defendant-appellee.

Before MacKENZIE, P.J., and MAHER and SIMON, ^* JJ.

[125 MICHAPP 131] PER CURIAM.

On October 15, 1980, Patricia Lang was murdered in Kalamazoo. Police investigating the crime quickly sought out defendant, an inmate at the Ionia State Reformatory and former boyfriend of Lang. Over the next nine weeks, defendant had many conversations with law enforcement personnel and, on five occasions, made statements tying him to the killing. Learning that the prosecution intended to introduce these statements into evidence at defendant's trial for Lang's murder, the defendant moved for their suppression. The trial court conducted a Walker ¹ hearing, and after listening to the testimony of 17 witnesses, it ordered 4 of the 5 statements suppressed. The people now appeal by leave granted from that order.

The people argue four issues on appeal. Before we turn to their claims, however, we address an issue raised by neither party. The question should have been presented by defendant on a cross-appeal. Although "[o]rdinarily no point will be considered which is not set forth in or necessarily suggested by the Statement of Questions Involved", GCR 1963, 813.1, the rule is not always followed, see Schlientz v. Schlientz, 329 Mich. 53, 45 N.W.2d 183 (1950); People v. Martin, 176 Mich. 381, 142 N.W. 592 (1913). We decide this issue, not raised by defendant, because our failure to do so would result in a manifest injustice.

The question is whether the single statement that survived the suppression motion should have been excluded from evidence. The trial court's ruling denying defendant's motion to suppress this statement was based on a finding of fact that is, we conclude, clearly erroneous. Therefore, we reverse.

[125 MICHAPP 132] The statement in question was made to Ora Roberts, an inspector at the Ionia State Reformatory. The events leading up to and the circumstances surrounding defendant's conversation with Roberts may be stated briefly. Shortly after defendant was identified as a former boyfriend of Lang, Robert Slater, a police officer investigating the murder, telephoned defendant to elicit information useful to his inquiry. During their conversation, defendant told Slater that he had some letters from Lang and agreed to relinquish half of them to Slater. Subsequently, Slater travelled to Ionia. There, he met with Ora Roberts and James Purkey, a detective sergeant with the Michigan State Police who maintained an office at Ionia. Slater and Purkey told Roberts that defendant was a suspect in the murder and asked Roberts to "shake down" defendant's living quarters to obtain Lang's letters. Apparently, defendant had refused to release the letters when he learned that Slater had questioned his mother and other relatives about Lang's death. Later that day, defendant's quarters were searched and the letters secured.

That same day defendant came to see Roberts. He complained that Slater and Purkey were harrassing him and implored Roberts to get them "off my back". At one point in their conversation, Roberts asked defendant whether he had anything to do with Lang's murder. Defendant replied, "The only way I could be involved would be as a conspirator" or words to that effect.

It is undisputed that Roberts, at no point during their talk, advised defendant of his Miranda ² rights. Where Miranda warnings must be given, inculpatory statements made without the benefit [125 MICHAPP 133] of such warnings must be suppressed. People v. Reed, 393 Mich. 342, 224 N.W.2d 867 (1975). To determine when Miranda warnings must be given "the 'deciding factor, in each case, is determined by examining the specificity of the investigation, i.e., whether the investigation has focused on one suspect.' " People v. Reed, supra, p. 357, 224 N.W.2d 867; People v. Brannan, 406 Mich. 104, 118, 276 N.W.2d 14 (1979).

The trial court apparently found that defendant's conversation with Roberts occurred before Slater and Purkey informed Roberts that defendant was a suspect. Accordingly, the trial court concluded that Roberts need not have advised defendant of his Miranda rights. The record clearly establishes, however, the reverse sequence of events. Defendant originally came to see Roberts because Slater and Purkey were pressuring him, especially about Lang's letters. When defendant said he would not turn over the letters, Roberts told him that at that very moment his domicile was being shaken down and the letters removed. This remark fixes in time Roberts' conversation with defendant in relation to Roberts' talk with Purkey and Slater because the shakedown occurred after Slater and Purkey had told Roberts that defendant was a suspect and, in fact, was done at their request. Thus, when Roberts asked defendant about his involvement in the murder, the investigation had focused on defendant and Roberts, aware of this fact, should have advised defendant of his Miranda rights. We conclude that defendant's inculpatory response to Roberts' question should have been suppressed. The trial court's ruling to the contrary is reversed.

We turn now to the people's four claims of error. The people argue that the trial court erred in suppressing two statements defendant made to [125 MICHAPP 134] Purkey on or during the few days following October 19, 1980. Purkey testified at the suppression hearing that he did not consider defendant a suspect when defendant incriminated himself. Defense counsel, however, impeached Purkey with his assertion, made during his testimony at the preliminary examination, that he considered defendant a suspect on October 19, 1980. Choosing to believe Purkey's earlier version, the trial court concluded that the investigation had focused on defendant when he incriminated himself in response to Purkey's questions. This finding was not clearly erroneous. Nor will we disturb the trial court's findings that defendant made incriminating remarks without the benefit of Miranda warnings. These findings were not clearly erroneous. Conseque...