People v. Green

• Decision Date: 10 July 1967
• Docket Number: No. 3,Docket No. 2248,3
• Citation: 7 Mich.App. 346,151 N.W.2d 834
• Parties: PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Willie GREEN, Defendant and Appellant
• Court: Court of Appeal of Michigan — District of US

Page 834

151 N.W.2d 834

7 Mich.App. 346

PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Willie GREEN, Defendant and Appellant.

Docket No. 2248.

Court of Appeals of Michigan, Division No. 3.

July 10, 1967.

Leave to Appeal Denied Nov. 16, 1967.

William D. Buchanan, Grand Rapids, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, James K. Miller, Pros. Atty., Kent County, Grand Rapids, for appellee.

Before BURNS, P.J., and HOLBROOK and RONALD M. RYAN, ^* JJ.

HOLBROOK, Judge.

Defendant was tried and convicted of first degree murder ¹ before a jury in the Kent county circuit court in March of 1966. After denial of his motion for new trial he has appealed to this Court.

The pertinent facts appear in the record as follows: The defendant shot James Williams at approximately 7:30 P.M., December 31, 1965, at the home of his former wife, Bertha Green, at Grand Rapids. He left the home before the arrival of police and was apprehended at 9:16 P.M. that same evening. He was advised that he had the right to remain silent and that anything he said would be used against him. He was asked if he had a gun or if he hid a gun any place, and he stated that if the officer would give him a cigarette he would tell him where the gun was. Upon being given a cigarette, he took the officer to where he had placed the gun. No objection was made to this testimony. When he was taken to police headquarters, he was advised by Detective Robert Scott of his constitutional rights including the fact that he was entitled to have an attorney present and if he couldn't afford an attorney, one would be appointed for him by the court.

Subsequently, he was questioned and confessed to the crime. This confession was testified to by the investigatory officer at the trial. Defendant did not object to any of his testimony and his counsel cross-examined the witness at some length eliciting further statements made by defendant concerning the transaction.

Defendant claimed that the decedent had been living in his former wife's home and that gambling was going on in the presence of his children. He further claimed that the homicide was justifiable because he did it in self-defense.

The defendant raises several questions for review which will be dealt with in proper order.

1. Were the admissions and confession of defendant properly admitted in evidence?

The testimony was not objected to by defendant. Defendant made no claim that the admissions and confession made by him to police officers were involuntary, either at the trial or in his motion for a new trial. Defendant asserts for the first time in this Court that his admissions and confession were involuntary because he had not previously been informed of his right to counsel. It is his present position that being informed of the right to consult counsel before making an admission against interest or a confession is a constitutional rights as defined in Escobedo v. State of Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, Miranda v. State of Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 as interpreted in Johnson v. State of New Jersey (1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. In People v. Griffin (1966), 4 Mich.App. 604, 145 N.W.2d 414, we discussed at great length the cases of Escobedo, Miranda, and Johnson, supra. Therein the trial commenced after Escobedo and prior to Miranda, as is also true in the instant case. Under the facts therein, we determined that reversible error was not committed by admission into evidence of statements obtained from an accused not advised of his constitutional rights, where trial commenced prior to June 13, 1966. We are equally compelled under the facts in the case at hand to come to the same conclusion. Also, see People v. Robbins (1967), 6 Mich.App. 633, 150 N.W.2d 175.

2. Was reversible error committed when defendant's former wife testified to claimed confidential matters occurring during their marriage?

The testimony of Bretha Green claimed to be reversible error is as follows:

'Q. Willie Green assault you on September 6th, 1962?

'A. He did.

'Q. What did he assault you with?

'A. I don't know. It was a knife. That is what he had.

'Q. What did it do to you?

'A. He stabbed me in back of my neck, and he struck me here on the jaw and on my arm.

'Q. Have you got any scar that is visible?

'A. Yes. Got one right there.

'Q. Where?

'A. See (Pointing).

'Q. From this attack?

'A. That's right.

'Q. Did you go to court on that occasion?

'A. I did.

'Q. At the time he attacked you with this knife, or whatever it was, did he say anything to you?

'A. I was sitting--it was one evening, just about 4 o'clock, one afternoon, and I was sitting down watching 'Popeye,' me and my sister and my daughter Barbara Ann. So be come up the stairs. He was drunk. And so he started to argue with me, and he just kept walking by and by and arguing, and that was past me, backwards and forwards, one room into the other. When he come back through the room again that's when he stabbed me in my neck.

'Q. Did he have something you saw?

'A. He had a little old knife with a wooden handle, looked like the blade had been broke off.

'Q. Did you see him before he stabbed you with that?

'A. No, I was sitting down, I was looking at TV. He come in behind me and stabbed me. I jumped up and was scuffling with the knife. That is when he cut me on the jaw and on the arm.

'Q. Could it have been a fish knife or fish scaler?

'A. It wasn't a fish knife. It was a little old knife. It wasn't a paring knife. It looked like a little old tin knife but the blade had been broke off sharp.

'Q. You were standing?

'A. I was sitting down.

'Q. Did you say anything to him?

'A. Didn't say anything to him. He just come up the steps and come up and argue with me.

'Q. Did he say anything to you threatening at that time?

'A. He had said before if he ever went to jail again, if he went to jail I would go to Milo Brown's.

'Q. When did he say that?

'A. That was before he stabbed me in my neck, because he had stabbed me in my hip once before that?

'Q. When had he done that.

'A. I don't know exactly when it was.

'Q. But not that night?

'A. Not that time.

'Q. What did he say to you, I am not going to jail'?

'A. He told me if he ever stab me again he wasn't going to no jail. I was going to Milo Brown's.

'Q. You were going to Milo Brown?

'A. I was going to Milo Brown.

'Q. What is Milo Brown?

'A. That's an undertaker.'

The defendant had previously testified concerning the same transaction on direct examination as follows:

'Q. You mean you had a heated argument then with you wife?

'A. Yes.

'Q. When did this happen?

'A. This happened sometime after that. So my wife wanted to go out again. So I told her, I said 'No. I think you should stay in.' I say, 'You kind of pulling the wool over my eyes.' We had argued about this and she claimed it wasn't true. And so I said, 'You better stay home.' So we were sitting out on the front porch and my sister-in-law and my wife had 4 or 5 quarts of beer. And somehow or other this James Williams drove by the house, and they like to have jumped off the porch. So that made me mad, and me and my wife got in a hot argument and we got to fighting. So I had an old fish scaler you use to scrape fish with in my pocket. We got to tussling around. So I had the thing out in my hand and I scraped her on the shoulder with it, and up there alongside the jaw and my sister ran.'

The testimony of defendant was admitted into evidence without objection prior to the rebuttal testimony of his former wife, Bertha Green. If admissible it was because it took place in the presence of third parties. People v. Bowen (1911), 165 Mich. 231, 237, 130 N.W. 706. The rebuttal testimony relating to the same transaction was likewise admissible for the same reason and would not constitute error.

3. Was the rebuttal argument of the prosecuting attorney so improper as to constitute reversible error?

The part of the questioned argument is as follows:

'Ladies and gentlemen, I might mention one other small item. It has been stated that no one has introduced in evidence what was in James Williams' pocket. Well, it was marked and shown to Kail and I never did introduce it in evidence, but I say this, you can be mighty sure that as it was shown to Kail, if there was any weapon in those possessions--

'Mr. Kail: I am going to object to this, your Honor.

'The Court: On what ground?

'Mr. Kail: Stating that something here was shown to me which was everything taken out of the man's pocket and therefore must be--

'The Court: I don't think he has a right to say everything was taken out because there is no testimony to that, is there? Is there any testimony that was everything taken out?

'Mr. Miller: Testimony that was found by the nurse.

'I will limit my remarks to those articles, if there had been a weapon in those articles, to say that Mr. Kail with his skill and his ability certainly would have introduced those items in this case.'

The trial judge stated in his opinion on motion for new trial as follows:

'While not mentioned in the written motion, counsel complained upon the oral argument about part of the prosecuting attorney's argument upon the trial. The portion of the proceedings relating to this matter have been transcribed. Defendant's counsel made objection and it was sustained, and nothing further occurred. It would stand to reason that if there had been a weapon in the deceased's pocket, defense counsel would have brought the matter to the attention of the jury, and the prosecutor's argument was only a statement of what was obvious to everyone in the courtroom. Moreover, the jury were instructed in substance, as in all self-defense cases, that it was not necessary that the danger to the defendant should have been actual and real, that all that was necessary was that the defendant believed in good faith that he was in danger.

'I find nothing in his incident...