People v. Douglas, Docket No. 14420

• Decision Date: 01 November 1973
• Docket Number: No. 1,Docket No. 14420,1
• Citation: 50 Mich.App. 372,213 N.W.2d 291
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herbert DOUGLAS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 291

213 N.W.2d 291

50 Mich.App. 372

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herbert DOUGLAS, Defendant-Appellant.

Docket No. 14420.

Court of Appeals of Michigan, Division No. 1.

Nov. 1, 1973.

Released for Publication Dec. 28, 1973.

Chester Kasilborski, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Prosecuting Atty., Dominick R. Carnovale, Chief, Appellate Div., Gerald A. Poehlman, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and FITZGERALD and WALSH,* JJ.

FITZGERALD, Judge.

Defendant appeals by leave granted from a 1963 jury conviction of first-degree murder, ¹ for which he was sentenced to life imprisonment, and from the trial court's finding that defendant's confession, obtained during a Walker ² hearing, was voluntary.

An armed robbery of a party store in Detroit on February 1, 1963, resulted in the shooting death of its two proprietors by an assailant armed with a sawed-off shotgun. On February 5, defendant was arrested on an unrelated charge of armed robbery. ³ Unable to post $10,000 bail for that offense, he was returned to the Wayne County jail. On February 15, defendant was arraigned for the murder of the party-store proprietors. From February 6 to February 15, defendant was interrogated regarding the murders. During this time, defendant was placed in several lineups, but was not identified as to any complicity in the shooting deaths.

While defendant was in custody for the unrelated robbery charge, detectives William Chubb and Andrew Lovechuk searched defendant's apartment. No attempt was made to obtain a search warrant, and permission to search the premises was neither sought nor given. The fruits of the search included a sawed-off shotgun barrel, shotgun shells, and a hacksaw. On February 13, while still in custody on the armed robbery charge and prior to his arraignment on the first-degree murder charge, defendant was confronted with the results of the search. He stated, 'Well, I suppose if you have that much, I'll take you down and show you where the shotgun is'. After locating the shotgun and returning to police headquarters, defendant orally confessed to shooting both proprietors of the party store.

At trial, the shotgun, shotgun barrel, shells, hacksaw, and the confession were admitted into evidence. The question as to the voluntariness of the confession was submitted to the jury. Testimony was obtained from another suspect in the identical murder case, indicating that defendant was subjected to physical abuse prior to the confession. In addition, another inmate testified that defendant's face was swollen and footmarks were observed on the back of his coat. Defendant himself testified that he was knocked down while wearing handcuffs, kicked in the eye, and was struck on the knee by the barrel of a gun. He further testified that on the day following the alleged beating he was taken to the prison medical facility for examination and later to the Detroit Receiving Hospital for treatment of a bruised eye and cut lip.

On November 7, 1963, defendant was convicted by a jury of first-degree murder. Counsel was appointed but efforts to obtain the trial transcript were not successful until 1967. Defendant's application for delayed appeal was filed early in 1968, and on August 20, 1968, this Court denied defendant's application for delayed appeal without prejudice, remanding the cause to the trial court for a Walker hearing to determine the voluntariness of defendant's confession. At the hearing, the trial judge determined that defendant's confession of February 13, 1963, was voluntary. This appeal followed.

We are asked to decide whether the trial court erred in determining that defendant's confession was voluntary. Reviewing courts are concerned with the correctness of the trial court's determination and are required to examine the entire record and make an independent determination of the ultimate issue of voluntariness. People v. Robinson, 386 Mich. 551, 194 N.W.2d 709 (1972); People v. Summers, 15 Mich.App. 346, 166 N.W.2d 672 (1968). Reversal of the trial court's finding of fact may occur where such findings are clearly erroneous.

'A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766 (1948); 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), p. 597.

The confession admitted into evidence was given orally while defendant was in custody between the hours of 10:30 p.m. and midnight on the evening of February 13, 1963. Officer Lovechuk testified as follows:

'I asked him if he was in this store and pulled this robbery. I had explained to him prior to that--I had explained to him that this gun was the gun that fired the shell that was found in front of this confectionery store. He said he did go in. He said he held the place up. He was holding up the smaller man, made him empty his pockets, and the bigger man made a lunge at him and he shot him, and the other man ran around the counter and he followed him. And as the man got into the bathroom, he stuck the shotgun up to the back of his head and pulled the trigger. And I wanted to get into details, very fine details with him on it, and he wouldn't go into detail. He said, 'I shot him, so I shot him'. He said, 'So what else do you want?' I asked him if he would be willing to go before a prosecutor and make a formal statement on this robbery and murder. He said he would if in our statement we would put that we would only charge him with manslaughter, promise to charge him with manslaughter.'

Review of the testimony obtained at the Walker hearing, together with the circumstances preceding the confession, convinces us that the trial court erred in determining that defendant's confession was given voluntarily. Evidence of physical force, the coercive nature of the defendant being confronted with illegally seized evidence, and reliance by the trial court upon matters other than those concerning the voluntariness of defendant's confession at the Walker hearing lead us to this conclusion.

Interrogation of defendant commenced between 1 and 3 o'clock in the afternoon of February 13, 1963. At least 5 officers participated in this session, the actual duration of which cannot be determined from the record. Defendant was then removed to the 9th floor of Detroit Police Headquarters at approximately 7 o'clock in the evening for further interrogation. Between 9 and 10 o'clock, defendant was taken by 4 police officers to uncover the shotgun hidden in a snow bank. Interrogation resumed upon their return to headquarters, and defendant confessed at approximately 10:30. He was returned to jail at midnight.

Taking the testimony most favorable to the prosecution, defendant was interrogated for at least 4 hours prior to the confession and was subject to possible interrogation for 9 hours. During this time 5 officers questioned the defendant at length. Just prior to his confession, the defendant unexplainably collapsed. James Tomlinson, also suspected of committing the identical murders, heard 'hollerin...