People v. Hooks, Docket No. 53685

• Decision Date: 08 March 1982
• Docket Number: Docket No. 53685
• Citation: 112 Mich.App. 477,316 N.W.2d 245
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Moten HOOKS, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 245

316 N.W.2d 245

112 Mich.App. 477

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Moten HOOKS, Jr., Defendant-Appellant.

Docket No. 53685.

Court of Appeals of Michigan.

Submitted Dec. 9, 1981.

Decided Jan. 19, 1982.

Released for Publication March 8, 1982.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Frank J. Bernacki, Asst. Pros. Atty., for the people.

Hall, Andary & Bilicki, P.C., Detroit, for defendant-appellant.

Before RILEY, P. J., and MAHER and CYNAR, JJ.

RILEY, Presiding Judge.

Defendant was convicted by a jury of the lesser included offense of voluntary manslaughter, M.C.L. § 750.321; M.S.A. § 28.553, and possession of a firearm in the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). The court sentenced defendant to not less than six months and not more than fifteen years on the manslaughter charge and to a consecutive term of two years on the felony-firearm charge.

On February 2, 1980, at approximately 12:30 a. m., the defendant and Harold Ewing, deceased, were involved in a gun battle at the home of John Sellers. Around 2 a. m. on that same day, Ewing died of multiple gunshot wounds. The circumstances of the gun battle are in dispute. It is undisputed, however, that defendant went to Seller's house to purchase a pill known as a "deb". Ewing answered the door and told defendant that Sellers was asleep. Defendant repeated his request to see Sellers and Ewing returned to the bedroom a second time but again informed the defendant that he could not awaken Sellers.

At this point the conversation between Ewing and defendant turned into a confrontation. Ewing allegedly aimed a handgun at defendant and then struck defendant alongside the head with the gun. A struggle ensued, whereupon defendant gained possession of one gun and Ewing obtained a second handgun. Both the defendant and Ewing were wounded, the latter fatally, during the exchange of gunfire which followed.

At approximately 10 a. m. on the same day, a Detroit police officer took a statement from the defendant while he was in the hospital. Defendant was suffering from a gunshot wound in the chest and a blow to his head. He was attached to a life-support machine, had tubes inserted into his nose, and had intravenous devices attached to his arms. The officer transcribed the oral statement which defendant made but did not read before signing. The parties disagree as to whether defendant was informed that Ewing had died prior to defendant's giving his statement.

Defense counsel did not move to suppress the statement or request a Walker ¹ hearing. However, he did object to the admission of the statement into evidence. The statement revealed that defendant told the officer that a "deb" is "like speed", that Ewing was "bossing" him around and that the defendant fired the first shot. The prosecution used the statement to impeach the testimony of defendant.

The defendant's first issue on appeal is that the trial court erred in permitting the use of defendant's statement for impeachment purposes without first sua sponte conducting a Walker hearing. The essence of this argument is that the failure of defense counsel to make a specific request for a Walker hearing did not waive the trial court's duty to conduct such a hearing. The appellate counsel aptly cites several federal cases for this position, including United States v. Powe, 192 U.S.App.D.C. 224, 591 F.2d 833 (1978).

In Powe, the defendant was convicted by a jury of distributing a controlled substance. That defendant stated that her confession was made in response to offers of leniency and, therefore, was not voluntary. The court held that generally a trial court is not required to address a question of the voluntariness of a confession sua sponte. However, certain "alerting circumstances" may impose a duty on the judge to assume a more active role and investigate the need for a hearing on the voluntariness of a confession. Alerting circumstances may be a defendant's mental, emotional or physical condition, evidence of police threats, or other obvious forms of physical and mental duress. Powe, supra, 843 n.31. The court limited its holding to cases where "a substantial question of voluntariness was raised". Id., 844.

In Michigan, the general rule noted in Powe is followed; however, the exception recognized in that opinion has not yet been analyzed or adopted by this Court. In People v. Shipp, 21 Mich.App. 415, 420, 175 N.W.2d 529 (1970), it was noted without citation to authority:

"The court is not required to hold a Walker-type hearing on its own motion. If we were to require the court to intercede under the circumstances presented here, we would be placing a truly unwarranted burden upon the court. Defendant has cited no authority which would compel such a procedural innovation. We consider that it would be injudicious for us to do so here."

The circumstances in Shipp are distinguishable from those in Powe or those in the instant case. The Shipp defendant was captured by police immediately after an armed robbery. The arresting police officer asked the defendant if he had robbed the gas station, to which defendant replied "yes". Trial counsel made no request for a Walker hearing and no steps were...