People v. Gonyea

• Decision Date: 05 August 1983
• Docket Number: Docket No. 57379
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry E. GONYEA, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 325

337 N.W.2d 325

126 Mich.App. 177

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry E. GONYEA, Defendant-Appellant.

Docket No. 57379.

Court of Appeals of Michigan.

Submitted June 3, 1982.

Decided June 6, 1983.

Released for Publication Aug. 5, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Theodore O. Johnson, Prosecuting Atty., and Michael A. Nickerson, Asst. Atty. Gen., for the People.

State Appellate Defender by Peter Jon Van Hoek, Detroit, for defendant-appellant.

Before R.B. BURNS, P.J., and MacKENZIE and ROOT ^*, JJ.

MacKENZIE, Judge.

After a jury trial, defendant was convicted of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549. Defendant was sentenced to imprisonment for life and appeals by right.

Defendant testified at trial. Defendant argues that the trial judge erred by permitting him to be impeached by a prior inconsistent statement made to the police. It was not disputed that the statement would have been inadmissible as substantive evidence because it was obtained in violation of the rules stated in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; 10 A.L.R.3d 974 (1966). However, violation of the Miranda rule does not prevent use of defendant's statement for impeachment purposes provided the statement was not coerced or involuntary. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Similar use is permitted of statements obtained in violation of the Massiah rule. United States v. Frank, 520 F.2d 1287, 1291 (CA2, 1975); United States v. Taxe, 540 F.2d 961, 968-969 (CA9, 1976), cert. den. 429 U.S. 1040, 97 S.Ct. 737, 50 L.Ed.2d 751 (1977); United States v. MacManaman, 606 F.2d 919, 924-925 (CA10, 1979).

The trial judge, after holding an evidentiary hearing consisting of nearly two days of testimony, held that defendant's statement was voluntary. This Court will not reverse a trial judge's decision as to voluntariness unless, after examining all the evidence, we are left with a definite and firm conviction that a mistake has been made. People v. Dean, 110 Mich.App. 751, 754, 313 N.W.2d 100 (1981). A confession is not voluntary if obtained by any sort of threat or violence, by any promises, express or implied, or by the exertion of any improper influence. Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). The ultimate question is whether the confession was the product of an essentially free and unconstrained choice by its maker. Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961).

In Hutto v. Ross, 429 U.S. 28, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976), the Court held that a confession made subsequent to an agreed-upon plea bargain that did not call for such a confession was not per se involuntary. The Court's resolution of that case indicated that the voluntariness of such a confession was to be determined by application of the general rules concerning voluntariness.

Defendant made the statement at issue here after a guilty plea and sentence in this court which was later reversed on appeal. See 406 Mich. 982, 280 N.W.2d 21 (1979). The interrogating officers testified that defendant's attorney had agreed to allow them to question defendant without the attorney's being present and that they had conveyed this information to defendant. Defendant's attorney testified that he did not remember making such an agreement and that he remembered refusing to make such an agreement on several occasions. The trial judge found that no such agreement had been made and that even if counsel for defendant had in fact given his permission to the officers it could not constitute a waiver of defendant's constitutional rights. Even assuming the statement was made without permission, the court concluded that the officers' influence on defendant was not coercive and that defendant's statement was not compelled.

The trial judge based this determination, in part, on the following observations:

"In addressing Defendant's emotional state at the time of rendering his consent, the Court notes that Defendant had previously plead guilty, knowing the penalty that could be imposed. Thus, he cannot claim surprise as to its severity. He was then brought to the surroundings of either a judge's chambers or jury room. He was in the protective custody of armed deputies, and thus relatively free from concern of retaliation by the victim's parents or friends.

"Very importantly, he was sufficiently aware and possessed sufficient emotional stability so as to concern himself as to the advice and position of his trial counsel.

"Most important, irrespective of the statement of the officers that his trial counsel approved, the final choice to go or not to go--to speak or not to speak, by direction of the officers, was left to Defendant's decision."

As we stated in People v. Wesley, 103 Mich.App. 240, 244, 303 N.W.2d 194 (1981):

"The trial court determined at the defendant's Walker [People v Walker (On Rehearing ), 374 Mich 331; 132 NW2d 87 (1965) ] hearing that the statement the defendant gave implicating himself was voluntary. Upon an examination of the whole record, we do not find that the court's determination was clearly erroneous and so will 'give deference to the trial court's findings, especially where demeanor of the witnesses [here, two police officers and the defendant]is important, as where credibility is a major factor'. People v Terlisner, 96 Mich App 423, 431; 292 NW2d 223 (1980), People v Hummel, 19 Mich App 266, 270; 172 NW2d 550 (1969)." (Footnote omitted.) (Emphasis added.)

We are not left with a definite and firm conviction that the trial judge erred in holding that the statement made by defendant to the police subsequent to his prior sentencing was voluntarily made.

Defendant also claims that the confession was extracted from him in the absence of counsel, violating his Sixth Amendment right to counsel. The United States Supreme Court has not addressed the issue of whether a confession obtained in violation of the Sixth Amendment right to counsel, see Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), and Massiah v. United States, supra, if found to be voluntary, is admissible for impeachment. Although the issue has not been decided by a Michigan court or by the United States Supreme Court, we find a defendant's Sixth Amendment right to counsel is applicable to post-trial statements when appeal is not final. See Cahill v. Rushen, 501 F.Supp. 1219 (E.D.Cal.1980).

The rationale in Harris v. New York, supra, was applied in United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980), to permit use for impeachment of evidence suppressed as the fruit of an unlawful search. At least two federal appeals courts have found the reasoning in Harris to apply in the context of conduct which is illegal under the Massiah Sixth Amendment rule to permit statements to be used for impeachment. United States v. McManaman, supra, pp. 924-925, United States v. Taxe, supra, 968-969.

Moreover, in People v. Esters, 417 Mich. 34, 53-54, 331 N.W.2d 211 (1982), our Supreme Court affirmed by an equally divided Court the use for purposes of impeachment of a voluntary statement obtained from defendant in violation of his right to counsel under the Fifth and Fourteenth Amendments, quoting the basis of Harris:

" 'Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.

* * *

* * *

" 'The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.' Harris, pp 224, 226 ."

We find the trial court properly allowed the use of the statements here for impeachment purposes although they could not have been used in the prosecutor's case in chief. That a defendant should not be permitted to perjure himself and then insulate his false statements behind an exclusionary rule should apply equally to a Sixth Amendment violation.

Defendant further claims the use of the statement for impeachment purposes constituted an abuse of the trial court's discretion in that the prejudicial effect of the statement outweighed its probative value. We disagree under the facts presented here. The prosecution had no direct evidence as to what passed between defendant and the victim on the night in question, but relied on circumstantial evidence to support inferences that defendant was the killer and that the killing was murder. Defendant was the only surviving eyewitness to the killing. Defendant testified that the victim was accidentally shot, when, distraught over the termination of an affair with defendant, she grabbed a gun from the glove compartment of defendant's car. Under the circumstances, defendant's credibility was crucial.

There was little danger that defendant's inconsistent statement would be treated erroneously as substantive evidence of defendant's guilt. Defendant's trial testimony indicated that the shooting occurred while the victim was sitting in defendant's car with the door open and her feet on the pavement. Defendant's statement to the police indicated that the victim was standing outside the car at the time. Defendant's trial testimony indicated that he did not know in whose hand the gun was when it went off. Defendant's statement to the police indicated that the gun was in his hand. The two aspects of defendant's...