People v. Drielick, Docket No. 17954

• Decision Date: 26 November 1974
• Docket Number: Docket No. 17954,No. 3,3
• Citation: 224 N.W.2d 712,56 Mich.App. 664
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Daniel DRIELICK, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 712

224 N.W.2d 712

56 Mich.App. 664

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Daniel DRIELICK, Defendant-Appellant.

Docket No. 17954.

Court of Appeals of Michigan, Division No. 3.

Nov. 26, 1974.

Released for Publication Jan. 17, 1975.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., E. Brady Denton, Jr., Pros. Atty., for plaintiff-appellee.

Before QUINN, P.J., and McGREGOR and O'HARA,* JJ.

QUINN, Presiding Judge.

A jury convicted defendant of first-degree murder, M.C.L.A. § 750.316; M.S.A. § 28.548. He was sentenced and he appeals. The first five issues raised and briefed on appeal arise from the admission, over objection, of a recorded telephone conversation between defendant and the wife of the victim.

Prior to the killing, defendant had been on intimate terms with Nancy McNeil, the estranged wife of the victim. At the time of the homicide, she was pregnant by defendant. Mrs. McNeil testified that defendant came to her apartment November 20, 1972 and told her that he had killed her husband with a gun that defendant had previously given to Mrs. McNeil. She testified further that when she looked for this gun and could not find it, she took an overdose of tranquilizer for which she was hospitalized.

When released from the hospital, Mrs. McNeil testified that she went to the police and informed them of defendant's admissions to her. Mrs. McNeil's testimony further indicated that at the request of the police, she telephoned defendant in an attempt to get him to admit the killing. She knew that this telephone call was to be recorded. During the call, defendant admitted killing Mr. McNeil.

In an attempt to evade the ruling of United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), that consent by one party to a monitored conversation was sufficient to permit admission of the conversation in evidence, defendant argues that Mrs. McNeil's consent was involuntary. The argument fails because the record establishes that the consent was voluntary, and no objection was made at trial based on involuntariness of consent.

There was no necessity to obtain a search warrant to intercept the telephone conversation between defendant and Mrs. McNeil after she had consented thereto, People v. Karalla, 35 Mich.App. 541, 192 N.W.2d 676 (1971).

The interception of that telephone conversation with Mrs. McNeil's consent involves no constitutional right of defendant, People v. Karalla, Supra.

Defendant contends that the trial court should have conducted a hearing on the voluntariness of defendant's admission of the killing made in the intercepted telephone conversation. The question of defendant's voluntariness in making the admission was never raised at trial.

Defendant stated at trial that the manner and tone of defendant's speech and the whole content of the conversation as reflected by the recorded telephone conversation should lead the court to conclude that defendant's mental state, because of drugs or alcohol, was such that he was incapable of speaking the truth. This would have required the hearing now contended for, if a confession was involved.

In People v. Porter, 269 Mich. 284, 290, 257 N.W. 705, 707 (1934), the Supreme Court distinguished confession and admission as follows:

'If the fact admitted necessarily amounts to a confession...