People v. Gisondi, Docket No. 2576

• Decision Date: 08 December 1967
• Docket Number: Docket No. 2576,No. 2,2
• Citation: People v. Gisondi, 156 N.W.2d 601, 9 Mich.App. 289 (Mich. App. 1967)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael GISONDI, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 601

156 N.W.2d 601

9 Mich.App. 289

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

Docket No. 2576.

Court of Appeals of Michigan, Division No. 2.

Dec. 8, 1967.

Released for Publication March 1, 1968.

Charles J. Porter, Condit, Denison, Devine, Porter & Bartush, Bloomfield Hills, J. Robert Sterling, Sauer & Girard, Pontiac, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., Lansing, S. Jerome Bronson, Pros.Atty., Oakland County, Pontiac, for appellee.

Before LESINSKI, C.J., and QUINN and BAUM^*, JJ.

BAUM, Judge.

This is a delayed appeal, upon leave granted, to review one issue:

'Did the trial court commit reversible error in admitting into evidence the confession of a codefendant, which was made in the presence of defendant Gisondi, as evidence of defendant Gisondi's guilt?'

Harold Hummel and Michael Gisondi were convicted of first-degree murder ¹ by a jury in the Oakland county circuit court.It was the theory of the people that Hummel shot and killed two persons in the course of an attempted robbery in which the appellantMichael Gisondi was a participant.

The confession in question was made in the Hazel Park police station in the presence of five police officers pursuant to a prearranged plan.The officers brought about a face-to-face meeting between Hummel and Gisondi.This occurred a short time before the defendants were scheduled to be arraigned in the Hazel Park justice court.

The officers already had a number of confessions from Hummel, oral and written, including a formal statement made before the prosecuting attorney.Some of these statements implicated Gisondi, but were not admissible in evidence against him because they were made outside Gisondi's presence.Moreover, Gisondi, himself, had steadfastly denied involvement.The officers were in need of evidence against him.They arranged the confrontation between Hummel and Gisondi for only one purpose: to elicit an incriminating response from Gisondi.

Hummel's confessions were prompted by his mistaken belief that Gisondi had 'squealed' on him.One of the officers had so informed Hummel.In fact, Gisondi had not 'squealed.'The officer gave this false information to Hummel, as an artifice, to obtain a confession.The artifice was successful.

At the Hazel Park police station, in Gisondi's presence, one of the police officers asked Hummel: 'Is that the man who was with you on the hold-up and shooting?'Hummel answered, 'Yes.'The officer asked Hummel whether both he and Gisondi had guns.Hummel answered, 'Yes; Gisondi had a .22 pistol, he kept it in his pocket.'

Another officer asked Hummel, 'Was Michael in the tavern with you when you fired the first shot?'The answer was, 'Yes, I told him to get out.'

Hummel went on to relate that after the shooting Gisondi drove the getaway car.

After eliciting these responses from Hummel, an officer asked Gisondi, 'Is that right?Is Hummel telling the truth?'

Gisondi answered, 'My attorney told me to stand mute.'

The episode at the police station was related in evidence at trial by several police officers.Each time, there was an objection to the admission of such evidence against Gisondi.

The events at the police station took place approximately one month after the homicides and 12 days after Hummel and Gisondi were arrested.Hummel's police station confession was not, therefore, a statement of admission by a conspirator made in the course of a conspiracy, so as to be binding upon his coconspirator.²Nor was Hummel's accusation of Gisondi admitted into evidence on such a theory.

Hummel's estrajudicial implication of gisondi apparently was received in evidence on the theory that it was made in the presence of Gisondi and that Gisondi's silence in the face of the accusation amounted to an admission by Gisondi, allowable in evidence against him under an exception to the hearsay rule.

Despite Gisondi's motion for a separate trial, he and Hummel were tried together.Hummel's self-implicating declaration would have been admissible in evidence against Hummel alone.³However, evidence of it was not confined by the trial judge to use against Hummel.Over strenuous objections, Hummel's police station statement was received as substantive evidence of Gisondi's guilt.

At the trial, Hummel repudiated his out-of-court implication of Gisondi.On the witness stand, Hummel admitted the attempted stickup and shootings, but testified that he did 'the job' alone, without any participation whatsoever by Gisondi.Hummel testified that his extrajudicial implication of Gisondi was an invention inspired by anger against Gisondi-- made out of whole cloth, resulting from his belief that Gisondi had informed on him.

We turn now to the theory that Gisondi's silence in the face of an accusation was an admission, allowable in evidence under an exception to the hearsay rule.A serious question can be raised as to whether Gisondi was really silent in the face of an accusation.His lawyer had instructed him, with a view to the arraignment, that he was to stand mute.To stand mute is a defensive posture in criminal proceedings which admits nothing.Gisondi may have thought that he was admitting nothing by saying, 'My lawyer told me to stand mute.'

Silence in the face of an accusation is received in evidence under certain circumstances on the theory that such silence indicates acquiescence in the accusation.But here, there is a serious question whether Gisondi intended any such acquiescence by his statement.

The dubious characterization of Gisondi's conduct as an admission is not the pivotal issue.The outcome of this case would be the same even if we were dealing with a true case of admissive silence in the face of an accusation.

This case was tried in 1953.Under Johnson v. State of New Jersey(1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, the appellant cannot claim the benefit of the decisions of the United States Supreme Court in Escobedo and Miranda ⁴ as precedents, retroactively binding upon this court.Nevertheless, under long standing Michigan precedents, which antedate Escobedo and Miranda,$ the accused's silence in face of an accusation is not deemed an admission or confession in a criminal case (People v. Bigge(1939), 288 Mich. 417, 285 N.W. 5), except when such silence occurs on the part of a suspected participant in a crime as a part of the Res gestae (People v. Todaro(1931), 253 Mich. 367, 235 N.W. 185).

The reason for the Bigge rule is clear.Without it, the constitutional provilege against self-incrimination ⁵ would be vitiated.The privilege gives a man under arrest the right, with impunity, to be...