People v. Hummel

• Decision Date: 01 October 1969
• Docket Number: No. 2,Docket No. 4324,2
• Citation: 172 N.W.2d 550,19 Mich.App. 266
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harold HUMMEL, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 550

172 N.W.2d 550

19 Mich.App. 266

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harold HUMMEL, Defendant-Appellant.

Docket No. 4324.

Court of Appeals of Michigan, Division No. 2.

Oct. 1, 1969.

Released for Publication Dec. 17, 1969.

Philip G. Ingraham, Birmingham, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Thomas G. Plunkett, Jr., Pros. Atty., Oakland County, Pontiac, for appellee.

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

MOODY, Judge.

On March 2, 1953, the defendant Harold Hammel was convicted by jury verdict of the first-degree murders ¹ of Joseph Vinokurow and Vidos Vinokurow. Certain oral admissions were introduced at trial, as well as a written confession which was given to the Oakland County Prosecutor.

The defendant filed an application for leave to appeal, and this Court granted his motion and remanded the case to the Oakland County Circuit Court for a Walker hearing ² concerning the voluntariness of the confessions. On July 5, 1967, the judge who conducted the hearing filed an opinion in which he concluded that the admissions and confessions were voluntarily made and were properly admitted into evidence during the defendant's trial.

On this appeal the problem presented is what standard of review will be used when defendant contests the outcome of a Walker hearing. In People v. Walker (1967), 6 Mich.App. 600, 602, 149 N.W.2d 912, this Court stated it would only reverse a finding that the confession was voluntary, if the trial court's finding was 'clearly erroneous'. The reason was based on an interpretation of GCR 1963, 785.1 and GCR 1963, 517.1.

In two later cases, People v. Pallister (1968), 14 Mich.App. 139, 141, 165 N.W.2d 319, 320, and People v. Summers (1968), 15 Mich.App. 346, 348, 166 N.W.2d 672, 673, the Court stated it must "examine the entire record and make an independent determination of the ultimate issue of voluntariness". While this may appear to differ from the 'clearly erroneous' test, in fact they are the same. The relation between the two verbal formultations is made quite clear in 2 Honigman & Hawkins, Michigan Court Rules Annotated, 2nd ed., Rule 517, where the authors note at p. 596:

'Formerly in chancery cases, although it was commonly said that issues of fact were tried De novo on appeal or that the Supreme Court must weigh the evidence and reach an independent conclusion on review of the facts, this did not mean that the findings of the trial judge were entitled to no consideration. Notwithstanding the right and duty of the Supreme Court to make its independent evaluation of the evidence, it would not set aside the findings of the trial judge unless it was convinced that a clear showing of error had been made. Running through the opinions are phrases such as 'clear error', 'manifest error,' 'palpably erroneous'. See MLP Appeal, § 382 and Michigan Decisions, Infra. Especially when there was a sharp conflict in the evidence, the reviewing court would not disturb the trial court's determination of fact questions, unless it was clear that a wrong conclusion had been reached. The Supreme Court was most reluctant to disturb the findings of a trial judge based on credibility, since the trial judge, as the trier of facts, had the advantage of observing the witness.

'Thus it is clear that Rule 517 accurately restates former practice in the review of chancery cases in Michigan although the language itself is borrowed from Federal Rule 52. The most frequently quoted explanation of the 'clearly erroneous' standard in Federal Rule 52(a) is contained in United States v. United States Gypsum Co. (1948), 333 U.S. 364, 395 (68 S.Ct. 525, 542, 92 L.Ed. 746), rehearing denied 333 U.S. 869, 68 S.Ct. 788, 92 L.Ed. 1147:

"Since judicial review of findings of trial courts does not have the statutory or constitutional limitations of findings by administrative agencies or by a jury, this Court may reverse findings of fact by a trial court where 'clearly erroneous'. The practice in equity prior to the present Rules of Civil Procedure was that the findings of the trial court, when dependent upon oral testimony where the candor and credibility of the witnesses would best be judged, had great weight with the appellate court. The findings were never conclusive, however. A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (See People v. Summers at p. 348, 166 N.W.2d 672.)

Thus, this Court will give deference to trial courts' findings, especially where the demeanor of the witnesses is important, as where credibility is a major factor. However, while the trial court's findings will guide us, we are not bound by them. ³

It is apparent that the Court in Pallister and Summers was applying the 'clearly erroneous' standard as set forth above. In Pallister the Court wrote beginning at p. 141, 165 N.W.2d at p. 320: 'We are left with the 'definite and firm conviction' the trial judge erred * * * and, accordingly, have concluded that the trial judge's finding of voluntariness was clearly erroneous.' And in Summers at p. 356, 166 N.W.2d at p. 678, it was concluded: 'We are convinced that the confession * * * was involuntary'.

Defendant appeals claiming the trial court erred in finding upon conclusion of the evidentiary hearing that his statements and confessions were freely and voluntarily made. This Court takes the view, however, that the dispositive issue is whether the judge who presided over the Walker hearing used the proper standard in judging defendant's credibility.

The transcript shows that the judge asked Hummel whether he was guilty of the murders. Hummel refused to answer and the trial judge made the following statement:

'The Court: Let me say this to you, Mr. Hummel, I am aware of the fact that your refusal to answer this question will be contempt of court, and I am also aware of the fact that there is no punishment which I could administer to one in your position at the present time to enforce your compliance with the court order, or to aid you in purging yourself of contempt. So I will not repeat the question further unless you choose to answer it voluntarily as I have directed you. But I will say this to...