People v. Gilbert, Docket No. 15536

• Decision Date: 27 August 1974
• Docket Number: Docket No. 15536,No. 2,2
• Citation: 55 Mich.App. 168,222 N.W.2d 305
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wayne GILBERT, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 305

222 N.W.2d 305

55 Mich.App. 168

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wayne GILBERT, Jr., Defendant-Appellant.

Docket No. 15536.

Court of Appeals of Michigan, Division No. 2.

Aug. 27, 1974.

Released for Publication Oct. 18, 1974.

Charles R. Stiles, Stiles & Fowler, Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Raymond L. Scodeller, Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and R. B. BURNS and O'HARA,* JJ.

R. B. BURNS, Judge.

Defendant Wayne Gilbert, Jr. was convicted for the first-degree murders of Ruth Parrish and Debbie Ann Berger. He appeals.

The first ground for defendant's appeal is that the trial court erroneously failed to suppress the defendant's confession. Defendant was arrested in Wisconsin. Defendant claims that while in the custody of the Wisconsin authorities he was forced to confess as a result of coercive tactics such as sleep deprivation, food deprivation, improper advice of his rights, isolation, and other intimidation. Because he had given such a confession to the Wisconsin authorties defendant gave an ostensibly admissible confession to the Michigan authorities, who were kept unaware of the improprieties, when they arrived to extradite him. Pursuant to People v. Walker, 374 Mich. 331, 132 N.W.2d 87 (1965), a suppression hearing was held on the matter. The trial court found that the confessions were voluntarily made. The findings of a trial court in a Walker hearing will only be reversed on appeal if they are clearly erroneous. People v. Hummel, 19 Mich.App. 266, 172 N.W.2d 550 (1969), and People v. Toneff, 37 Mich.App. 221, 194 N.W.2d 390 (1971). A review of the record fails to substantiate any claim that the trial court's determination was clearly erroneous.

Defendant also challenges the propriety of the trial court's jury instructions. After the defendant's confession had been admitted into evidence before the jury, defense counsel attempted to impeach its credibility by producing evidence that touched upon its voluntariness, as well. As a result, the trial court instructed the jury that a Walker hearing had been held, that the defendant's confession was held to have been voluntarily given, and that the jury's determinations were limited to assigning the proper weight and credibility to the statements. Defense counsel timely objected to the instruction. Thus, the issue is preserved. GCR 1963, 516.2.

The court said:

'All right, ladies of the jury. Ladies of the jury, I want to make abundantly clear to you something which I instructed you upon prior to your being excused momentarily. I discussed with you the matter of what happens where a defendant makes a confession or an admission against interest. And I indicated to you * * * the defendant is entitled to a * * * hearing in advance of the trial * * * before the judge on a separate record. The judge determines whether or not that confession * * * (was) voluntarily made. If they were voluntarily made, * * * if the judge looks at the duration and conditions of detention, the attitude of the police officers, the physical, mental state of the accused, the diverse pressures that might sap the accused's strength and so forth; if the judge declares, or, determines * * * that the confession * * * was voluntarily given to the police in this case, he then on the record indicates that this confession * * * shall be admissible in evidence

'Now, in this case I have made such a determination, that that could come before you, was voluntarily made, so far as any conduct of the police officers were (sic) concerned. It is for you the jury to consider and determine the weight and credibility of that confession * * *.'

The purpose of the suppression hearing was to determine the admissibility of defendant's confession as evidence. A resolution in favor of admissibility merely placed the confession on an equal footing with all other properly admitted evidence. Defendant is as free as he was before the Walker hearing to familiarize the jury with the circumstances that attended the taking of his confession, including facts bearing on voluntariness, to impeach its credibility or to challenge the fact that it was ever given at all. Lego v. Twomey, 404 U.S. 477, 485--486, 92 S.Ct. 619, 625, 30 L.Ed.2d 618, 625 (1971). After such evidence has been admitted, the trial judge may instruct the jury that they should determine, on the basis of all the relevant evidence, 1) if the confession was made, and 2) if they so find, they should decide if the statement is true. People v. Williams, 46 Mich.App. 165, 207 N.W.2d 480 (1973).

The trial court should not, as happened in this case, go on to discuss anything more. For, to inform the jury of the existence, nature, and results of a Walker hearing not only makes it unlikely that the jury will thereafter decide the confession was never made, Williams, supra, but it also tends to unfairly discount the credibility of defendant's impeaching evidence, especially that properly admitted evidence that relates to voluntariness. The trial court thus would improperly impinge upon the province of the jury.

Michigan has long recognized the critical role confessions play in criminal trials. People v. Summers, 15 Mich.App. 346, 166 N.W.2d 672 (1968). A properly preserved error that crippled the defendant's ability to challenge a confession cannot, in light of this precedent, be deemed harmless.

To avoid repetitious appeals, we will also consider the defendant's third ground for appeal. Defendant was charged on an open count of murder. At trial, evidence was produced to support both premeditated and felony murder theories. However, the only evidence bearing on the felony murder theory was defendant's confession itself. The jury was instructed on both theories, and defendant was found guilty of first-degree murder in a general verdict. While there is some evidence strongly suggesting the jury relied on a felony murder theory, there is no definite proof showing whether the jury relied on either or both theories to reach the verdict. The corpus delicti must be established by evidence other than the accused's confession. People v. Allen, 390 Mich. 383, 212 N.W.2d 21 (1973), and People v. Sparks, 53 Mich.App. 452, 220 N.W.2d 153 (1974). With only a confession to prove it, the felony murder theory was not sufficiently established in this case. When the defendant stands convicted on one of two theories, one of which is permissible and one of which is not, the inability to say for sure on which the conviction rests demands reversal. Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931); People v. Purifoy, 34 Mich.App. 318, 191 N.W.2d 63 (1971), and People v. Davenport, 39 Mich.App. 252, 197 N.W.2d 521 (1972).

Reversed and remanded for a new trial.

O'HARA, Judge (concurring in part, dissenting in part).

My colleagues have made decisional holdings on three issues. With one I agree. With the other two I am in disagreement.

I am of necessity going to add factual background to my opinion because discussion of legal questions in the sterility of abstract theories very often, in my view, can lead to the omission of facts that materially affect an application of what otherwise might be an acceptable statement of a legal principle.

The first point made by the majority is that the finding of a trial judge in a Walker ¹ hearing will not be reversed unless clearly erroneous. I agree that this is a correct principle of law.

The second issue discussed by the majority is: Was it reversible error for the trial judge to charge the jury as hereinafter quoted since defense counsel challenged the credibility of defendant's confession by attempting to introduce evidence that went to the question of its voluntariness. The court included the following excerpt in his charge to the jury:

'All right, ladies of the jury. Ladies of the jury, I want to make abundantly clear to you something which I instructed you upon prior to your being excused momentarily. I discussed with you the matter of what happens where a defendant makes a confession or an admission against interest. And I indicated to you * * * the defendant is entitled to a * * * hearing in advance of the trial * * * before the judge on a separate record. The judge determines whether or not that confession * * * (was) voluntarily made. If they were voluntarily made, * * * if the judge looks at the duration and conditions of detention, the attitude of the police officers, the physical, mental state of the accused, the diverse pressures that might sap the accused's strength and so forth; if the judge declares, or, determines * * * that the confession * * * was voluntarily given to the police in this case, he then on the record indicates that this confession * * * shall be admissible in evidence.

'Now, in this case I have made such a determination, that that could come before you, was voluntarily made, so far as any conduct of the police officers were (sic) concerned. It is for you the jury to consider and determine the weight and credibility of that confession * * *.'

There was no error in this instruction. Under the circumstances of the record he could not leave the jury without any explanation of why it could not consider the issue. He did it fairly to the prosecution and the defendant. He followed with precision the rule permitted to the states by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964), and adopted by this state in People v. Walker (On Rehearing), 374 Mich. 331, 132 N.W.2d 87 (1965).

I am not clear for what purpose the majority cites Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1971). All Lego did was reaffirm what the Supreme Court said in Jackson, supra and reemphasize it.

'We also reject petitioner's final contention that, even though the trial judge ruled on his coercion claim, he was entitled to have the...