People v. Good

• Citation: 463 N.W.2d 213,186 Mich.App. 180
• Decision Date: 17 December 1990
• Docket Number: Docket Nos. 114609,118277
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jonathan Joseph GOOD, Defendant-Appellee (Two Cases).
• Court: Court of Appeal of Michigan (US)

Page 213

463 N.W.2d 213

186 Mich.App. 180

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jonathan Joseph GOOD, Defendant-Appellee (Two Cases).

Docket Nos. 114609, 118277.

Court of Appeals of Michigan.

Submitted May 8, 1990.

Decided Nov. 6, 1990.

Released for Publication Dec. 17, 1990.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training and Appeals, and Jeffrey Caminsky, Asst. Pros. Atty., for the People.

Ira G. Harris, Southfield, for defendant-appellee.

Before MacKENZIE, P.J., and SAWYER and DOCTOROFF, JJ.

PER CURIAM.

The prosecutor appeals by leave granted from a Recorder's Court order which suppressed defendant's ¹ incriminating statement. The trial court suppressed defendant's confession because defendant was not taken immediately before the juvenile court as required by M.C.L. Sec. 764.27; M.S.A. Sec. 28.886. The prosecutor argues that the trial court erred in not considering the totality of the circumstances to determine whether defendant's written statement had been voluntarily given. We agree and reverse.

In Docket No. 114609, defendant was charged with first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, unlawfully driving away an automobile, M.C.L. Sec. 750.413; M.S.A. Sec. 28.645, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). On February 18, 1988, defendant allegedly broke into a private residence, fatally shot an occupant with a .22 caliber rifle, and took a Ford pickup truck. In Docket No. 118277, defendant was charged with armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, three counts of assault with intent to do great bodily harm less than murder, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), in connection with the February 18, 1988, robbery of a Pizza King restaurant during which three employees were shot in the legs with a .22 caliber rifle. In a third case, which is not the subject of these appeals, defendant was charged with armed robbery and felony-firearm.

During the police investigation of the crimes, a witness came forward and claimed that he saw defendant carrying a rifle in the vicinity of the residential shooting approximately twenty minutes before the shooting occurred. The police questioned defendant on February 21, 22 and 23, 1988, at the Riverview police station and in the presence of either his mother or his father. Defendant denied any personal involvement in any of the offenses and implicated a friend, Timothy Lester. The focus of the investigation was on Lester. Defendant was not a suspect at the time, but was considered to be a witness.

At the request of the police, defendant agreed to take a polygraph examination. Defendant and his mother arrived at the Northville State Police Post at 12:30 p.m., but then left to eat lunch. The polygraph interview began at approximately 1:30 p.m. and was conducted by Officer Harold Raupp of the Michigan State Police. Raupp and defendant were the only ones present in the examination room. The police officer in charge of the investigation, Patrolman Royal Williams of the Riverview Police Department, waited in an adjacent office and monitored the examination via a closed circuit monitor. Defendant was advised of, and agreed to waive, his constitutional rights. During the interview preceding the actual polygraph examination, defendant admitted his participation in all three offenses. At this point, Raupp called off the polygraph. The time was between 2:35 and 3:00 p.m.

Raupp and Williams conferred for a few minutes and then Williams questioned defendant. In the presence of his mother, defendant was readvised of his constitutional rights. Both he and his mother signed a waiver form. The time was 3:30 p.m. Defendant's oral statements incriminating himself were reduced to writing by Williams. Defendant and his mother signed each page of the written statement. The interview concluded at 4:50 p.m. Williams then telephoned defendant's father and asked him to meet them at the Riverview Police Department. Williams drove defendant to the station. Defendant sat in the front seat and was not handcuffed. Defendant's mother followed behind them in her car. They arrived at the station at 6:00 p.m. and were met by defendant's father.

At the station, Williams prepared a probate court petition to have defendant admitted to the county youth home. Defendant was not placed in a cell but was allowed to stay with his parents in the chief deputy's office. After giving defendant a few private minutes with his parents, Williams transported him to the youth home. They arrived there at approximately 8:00 p.m.

Prior to trial, defendant filed motions to suppress his statement on the ground that the police had not complied with the statutory and court rule requirements of taking him "forthwith," MCR 5.934(A)(1), or "immediately," M.C.L. Sec. 764.27; M.S.A. Sec. 28.866, before the juvenile division of the probate court or to a place designated by the court pending a preliminary hearing. At the hearing on the motions, Williams acknowledged that he had probable cause to believe defendant had committed a felony after defendant made the oral admission to Raupp. Further, Williams considered defendant to be "technically under arrest" when he gave the written statement. Williams testified that defendant was not threatened or forced in any way to make a statement. The trial court granted the motion to suppress the written statement, ruling that suppression was required because the mandate that a juvenile defendant be "immediately" or "forthwith" taken before the juvenile division of the probate court was not complied with. The court did not make a finding as to whether the written statement was nevertheless voluntarily given. The trial court denied the motion to suppress defendant's oral statement to Raupp, finding that defendant should have realized that any statement made to Raupp would be disseminated to other persons and that defendant voluntarily, knowingly and understandingly made the statement. The prosecutor's motion for reconsideration was denied. This Court granted the prosecution's motions for stay of proceedings.

On appeal, the prosecutor argues that the trial court erred as a matter of law in not considering the totality of the circumstances to determine whether defendant's statement was voluntary and admissible.

A trial court's decision to suppress evidence will be reversed only if that decision was clearly erroneous. A decision is clearly erroneous when this Court is firmly convinced that a mistake has been committed below. People v. Weston, 161 Mich.App. 311, 313, 409 N.W.2d 819 (1987).

There is no dispute that Williams violated M.C.L. Sec. 764.27; M.S.A. Sec. 28.886 ² and MCR 5.934(A)(1) when he obtained defendant's written statement at the State Police post. ³ We must, therefore, determine what the consequences of the violation are. Neither the statute nor the court rule speaks to this issue.

Some cases have held that violation of the statute requires automatic suppression of the defendant's statement. See People v. Wolff, 23 Mich.App. 550, 179 N.W.2d 206 (1970), lv. den. 384 Mich. 754 (1970), and People v. Allen, 109 Mich.App. 147, 311 N.W.2d 734 (1981), lv. den. 412 Mich. 913 (1982). However, other cases have rejected this per se approach in favor of a "totality of circumstances" test for determining the voluntariness, and thus admissibility, of a statement obtained in violation of the court rule and statute. See People v. Jordan, 149 Mich.App. 568, 386 N.W.2d 594 (1986), and People v. Irby, 129 Mich.App. 306, 316-317, 342 N.W.2d 303 (1983), lv. den. 418 Mich. 951 (1984). See also People v. Roberts, 3 Mich.App. 605, 143 N.W.2d 182 (1966), and People v. Jackson, 171 Mich.App. 191, 197, 429 N.W.2d 849 (1988), lv. den. 432 Mich. 896 (1989). The Court, in People v. Williams, 163 Mich.App. 744, 415 N.W.2d 301 (1987), declined to resolve the apparent conflict in decisions, finding that the confession was properly suppressed regardless of which test, per se or totality of the circumstances, was used.

The prosecutor argues that the per se rule should be rejected and the totality of the circumstances rule should be adopted. The prosecutor relies on People v. Cipriano, 431 Mich. 315, 429 N.W.2d 781 (1988), reh. den. 431 Mich. 1206 (1988). In Cipriano, the Michigan Supreme Court examined the effect of the statutory requirement that an arrested person be brought before a magistrate for arraignment "without unnecessary delay," M.C.L. Sec. 764.13; M.S.A. Sec. 28.871(1); M.C.L. Sec. 764.26; M.S.A. Sec. 28.885, upon the admissibility of a confession obtained during a period of prearraignment delay. The Court held that the test of admissibility is whether the totality of the circumstances surrounding the confession indicates that it was freely and voluntarily made. Id., p. 334, 429 N.W.2d 781. Unnecessary delay is one factor to be considered in evaluating the voluntariness of a confession and the confession should not be excluded from evidence solely because of prearraignment delay. Id., pp. 334-335, 429 N.W.2d 781.

The Court in Cipriano noted that the NcNabb- Mallory ⁴ exclusionary rule, which automatically excludes incriminating statements obtained during a period of unnecessary delay in arraignment, was adopted in Michigan in People v. Hamilton, 359 Mich. 410, 102 N.W.2d 738 (1960). Cipriano, supra, 431 Mich. p. 325, 429 N.W.2d 781. After reviewing the subsequent case law regarding prearraignment delay, the Court examined the purpose sought to be achieved by the McNabb- Mallory exclusionary rule. Id., 431 Mich. pp. 330-331, 429 N.W.2d 781. The Court concluded that, in light of changes in constitutional doctrines since the...