People v. Farmer
| Decision Date | 04 March 1968 |
| Docket Number | No. 50,50 |
| Citation | 156 N.W.2d 504,380 Mich. 198 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Burton FARMER, Defendant-Appellee. |
| Court | Michigan Supreme Court |
William L. Cahalan, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Thomas P. Smith, Asst. Pros. Atty., Detroit, for plaintiff-appellant.
James M. Skillman, Detroit, for defendant-respondent.
Before the Entire Bench.
Shortly after 8 a.m. on Saturday, January 11, 1958, following ten days of planning and two unsuccessful attempts, Andrew Madison, Turner Madison, and Burton Farmer held up the Prince Royal Bar at 3057 Gratiot Avenue in the City of Detroit.
Andrew Madison guarded the front door with a .38 caliber revolver. Defendant Burton Farmer walked behind the bar. After removing approximately $100 in bills and change from the cash register, he ordered Donald Coulter, an off-duty Detroit Police patrolman, to open the safe. At approximately 8:30 a.m., Turner Madison fatally shot with a sawed-off 12-gauge shotgun, parolman Coulter. Coulter had reached for his service revolver.
The three robbers went to 3734 McDougall, the house of Essie Lee Graham. They divided the money. Essie Graham took the guns and defendant's clothing to a room occupied by defendant's mother at 3311 East Congress. Defendant was arrested Andrew Madison, Turner Madison, and Burton Farmer were charged with murder in the first degree. After two partial days of trial, the Madisons entered pleas of guilty. Essie Lee Graham pled guilty to the charge of being an accessory. The trial continued as to Burton Farmer. Defendant was represented by retained counsel at the preliminary examination and the trial.
with Andrew Madison that same morning in a second-floor bedroom at 3734 McDougall. He was arraigned three days--72 hours--later on the morning of Tuesday, January 14, 1958.
Officer Albert Evans testified that he first talked with Farmer on January 11, 1958, at about 11:30 a.m., and again at 4:10 p.m., when defendant stated that he knew nothing about the shooting at the bar; that he questioned defendant again on January 13 when defendant told him that he had used a hacksaw to saw off a shotgun; that defendant stated he gave the shotgun to Turner Madison; that the same weapon was used in the shooting; that defendant was present in the bar and saw Turner Madison shoot Coulter, and that he admitted participating in the holdup. Defendant's counsel did not object to this testimony.
Officer Charles Schlachter testified that he questioned defendant at police headquarters on January 11, 1958, at 10 p.m.; that defendant told him he took money from the cash register; that, when one of the patrons drew a revolver and pointed it at Turner Madison, he was shot by Turner Madison; that the defendant told him he had borrowed the shotgun with which Coulter was killed and had sawed off the barrel and stock, but that defendant did not fire the gun. Defendant's counsel made no objection to this testimony.
Officer William Clinton testified that on Sunday afternoon, January 12, he took defendant to the scientific laboratory for a nitrate test on his hands; that the test was performed about 5:15 p.m., at which time defendant told him:
Defendant's counsel did not object to this testimony.
Inspector Albert Langtry testified that he conducted the nitrate test. He verified officer Clinton's statement of what defendant said at the time. Again, defendant's counsel made no objection.
During the testimony of officer Schlachter, the transcript further shows:
'BY MR. COURY (assistant prosecutor):
'MR. COURY: Mr. Patrick, have you seen this statement?
'MR. PATRICK (defendant's counsel): I have not, sir.'
A recess was then taken. During the jury's absence, the transcript shows:
'(Whereupon People's proposed Exhibit 16 was marked by the Reporter.)'
In the presence of the jury, the officer testified further:
'
Defendant's statement was then read. It showed that it was taken on Sunday, January 12, 1958, commencing at about 10:25 p.m., in the presence of officer Schlachter, another officer and an assistant prosecutor. The statement recited that no threats had been made, that defendant had been treated all right, that he knew he did not have to make a statement unless he wanted to do so, and that any statement he made could be used against him in court. The confession, in detail, recites that defendant and the Madisons robbed the bar and that Turner Madison shot the patron. No objection was made to admission of the statement at any time.
At the conclusion of the testimony, defendant's counsel stated that he had no requested instructions. The jury was charged by the recorder's court judge to make a determination as to whether any confession was voluntary, and if so to give it such consideration as the jurors believed it was entitled to receive. At the conclusion of his instructions to the jury, the judge asked if there were any other request. Defendant's counsel replied, 'No.'
On April 29, 1958, the jury returned a verdict of guilty. Mandatory sentence of life imprisonment was imposed. On October 5, 1966, defendant, by court-appointed counsel, filed with the Court of Appeals an application for delayed appeal. The Court of Appeals remanded for a confession voluntariness hearing, in accordance with the procedure set forth in People v. Walker (On Rehearing, 1965), 374 Mich. 331, 132 N.W.2d 87. Application by the People for rehearing was denied. This Court granted leave to appeal.
It is the claim of the prosecutor that in a Pre-Walker conviction, unless the record reveals some fact or circumstance indicating that a confession was made in consequence of fear or promise of favors, no Walker-type hearing should be accorded a defendant.
It is the claim of the defendant (a) that he has an absolute right as a matter of due process of law to a Walker-type hearing but that (b) even if he is not absolutely entitled to such a hearing there were sufficient unusual circumstances present in this case to entitle him to one.
The issue of involuntariness of defendant's statements and confession was not raised in 1958 either prior to trial or upon trial. If it had been, the recorder's court judge would have excluded the confession upon a determination of involuntariness or, in case of doubt, the issue of voluntariness would have been presented to the jury for its determination. People v. Barker (1886), 60 Mich. 277, 27 N.W. 539; People v. Prestidge (1914), 182 Mich. 80, 148 N.W. 347; People v. Burlingame (1932), 257 Mich. 252, 241 N.W. 253; People v. Louzon (1953), 338 Mich. 146, 61 N.W.2d 52. Though defendant was represented by retained counsel, because no objections were made, neither procedure was followed. It must be concluded that either there was no issue of involuntariness or that such issue was waived as a matter of trial strategy. As was stated in People v. Lundberg (1961), 364 Mich. 596, 604, 111 N.W.2d 809, 813:
'(Since no objection was made) the trial court had no occasion to take proofs and to consider whether defendant's arrest and detention were illegal thereby subjecting his confessional statements made during such detention to the exclusionary rule announced in People v. Hamilton, 359 Mich. 410, 102 N.W.2d 738.'
While the rule announced in Walker was made retroactive, it does not follow that in every trial prior to Walker in which a confession was admitted in evidence a defendant is now automatically entitled to a Walker-type hearing. See, for example, People v. Fordyce (1966), 378 Mich. 208, 144 N.W.2d 340.
Under normal appellate procedures, since defendant was represented by counsel at all stages of the proceeding in which he was entitled to such representation and no claim of inadmissibility was raised, there would be no assignment of error for an appellate court to review. This would end our consideration of the case.
Though the further claim of the defendant of unreasonable detention is considered to be without merit, it is not evident from the Court of Appeals' order of February 2, 1967, remanding for a Walker-type hearing, the reason for the Court's order. The substance of defendant's claim is now examined for the purpose of demonstrating why such a non-meritorious claim, not saved for review, should not be considered. It is maintained that the detention of defendant for three days--72 hours--from the morning of January 11, 1958, to the morning of January 14, 1958, before arraignment was such a lengthy detention as to render the confession involuntary. While this Court has repeatedly condemned the practice of...
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