People v. Johnson

• Decision Date: 21 August 1978
• Docket Number: Docket No. 77-2563
• Citation: 85 Mich.App. 247,271 N.W.2d 177
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Antonio Alonzo JOHNSON, Defendant-Appellee. 85 Mich.App. 247, 271 N.W.2d 177
• Court: Court of Appeal of Michigan — District of US

Page 177

271 N.W.2d 177

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Antonio Alonzo JOHNSON, Defendant-Appellee.

Docket No. 77-2563.

85 Mich.App. 247, 271 N.W.2d 177

Court of Appeals of Michigan.

Aug. 21, 1978.

Released for Publication Nov. 13, 1978.

[85 MICHAPP 248] George P. Mann, Detroit, for defendant-appellee.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief, Asst. Pros. Atty., Andrea L. Solak, Asst. Pros. Atty., for plaintiff-appellant.

[85 MICHAPP 249] Before T. M. BURNS, P. J., and KAUFMAN and BASHARA, JJ.

PER CURIAM.

This is a prosecutor's appeal by leave granted to review the trial court's pretrial decision to suppress a statement made by the defendant after his arrest, but before his formal arraignment. On defendant's motion, a Walker ¹ hearing was held. At the conclusion of the hearing, the court found that, although defendant was properly advised of and waived his Miranda ² rights, the statement must be suppressed because he was not arraigned without unnecessary delay, a violation of M.C.L. § 764.26; M.S.A. § 28.885. ³ The prosecution for manslaughter, ⁴ M.C.L. § 750.321; M.S.A. § 28.553, has been stayed, pending our review of that determination.

The charge against defendant is based on the strangulation death of Ernestine Payton in March of 1975. Defendant was a suspect and heard that the police were looking for him. He called the police around 9:15 a. m. on March 3, 1975, and agreed to turn himself in. A police car was sent to pick up the defendant and he was arrested at that time.

Defendant was given his Miranda rights and made an exculpatory statement shortly after his arrest. The admission of this first statement has not been questioned by the defense nor does the [85 MICHAPP 250] prosecutor intend to offer it in evidence at trial. Because the police did not believe the statement, defendant volunteered to support it by taking a polygraph test. An officer made an appointment for the polygraph examination for 11 a. m. the next day, March 4.

Since defendant was to be held in custody until the polygraph examination could be administered, he was taken before a judge for a "reverse writ" of habeas corpus. ⁵ Defendant told the officer while in court, but before he appeared before the judge, that he was willing to talk about this crime. The officer refused to speak to the defendant about the incident until after the polygraph test. What defendant was told by the judge during the "reverse writ" proceeding does not appear in the record. The officer who accompanied defendant before the judge did not testify, even though the prosecutor offered to produce him.

No further questioning of defendant occurred before the polygraph exam the next day. However, after the test results did not support defendant's initial statement, he was questioned by another officer from 3:20 p. m. to 4:20 p. m. on March 4. It was during this session that the challenged statement was given, reduced to writing and signed by the defendant. The contents of the statement do not appear in the record, but the prosecutor claims that it was still largely exculpatory. Defendant was formally charged and arraigned on a second-degree murder count on March 5.

In the motion requesting a Walker hearing, defense counsel did not rely on the tardy arraignment[85 MICHAPP 251] as a basis for suppressing the statement. The matter was raised by the trial court after both counsel had completed examination of the officers testifying at the Walker hearing. Defendant had been called, but did not testify when the court indicated it was willing to rule on the admissibility of the statement based on the statute.

The court, in a written opinion, found that defendant had properly waived his Miranda rights before each of the questioning sessions. The court found, however, that since defendant was arrested in the morning of March 3 and not arraigned until March 5, the statement must be suppressed because of a violation of M.C.L. § 764.26; M.S.A. § 28.885, the prompt arraignment statute. The court also discussed, but made no specific findings on, a due process violation ⁶ and the voluntariness of the statement. The question for our review is whether this statement should be suppressed solely because of a statutory violation. ⁷ The Supreme Court has considered the same question. In People v. White, ⁸ 392 Mich. 404, 424, 221 N.W.2d 357, 366 (1974), the court stated:

[85 MICHAPP 252] "These sections, while straightforward in their command to the police, have not been interpreted by this Court or (sic) require the exclusion of every admission or confession obtained during a period of unreasonable delay. Only when the delay has been employed as a tool to extract a statement has an exclusionary rule been imposed under these sections. People v. Hamilton, 359 Mich. 410, 102 N.W.2d 738 (1960); People v. Harper, 365 Mich. 494, 113 N.W.2d 808 (1962); People v. Farmer, 380 Mich. 198, 156 N.W.2d 504 (1968)."

The question for the trial court was whether the delay from defendant's arrest on the morning of March 3 until the time the statement was given between 3:20 p. m. and 4:20 p. m. ⁹ on March 4 was "employed as a tool to extract a statement". We hold that the trial court abused its discretion in finding that this delay was used to coerce a confession.

The record shows that defendant was questioned by the police three times in this 30-hour period: once shortly after his arrest, during the polygraph examination, and shortly after the polygraph had been administered. The defendant was warned of his Miranda rights on each occasion and the officers testified that no request for an attorney or to stop the interrogation was ever made. Indeed, the defendant asked for the polygraph and expressed a willingness to talk about the incident while waiting in court for the reverse writ. The questioning session which led to the challenged statement was apparently a result of defendant's desire to talk about the incident expressed before the reverse writ proceeding.

[85 MICHAPP 253] There is nothing in this record to indicate that defendant was coerced or that the statement was involuntary. ¹⁰ The statement was not "sweated out" of the defendant by constant and unrelenting interrogation, the real thrust of those cases applying an exclusionary rule for the type of violation found here. See, People v. Farmer, 380 Mich. 198, 156 N.W.2d 504 (1968). Each of the questioning sessions was preceded by warnings and, if the officer's testimony is believed, defendant was more than willing to talk about the incident.

The question isn't one of delay, but of whether the statement was voluntary or coerced. People v. Dawson, 29 Mich.App. 488, 495, 185 N.W.2d 581 (1971), People v. Gwinn, 47 Mich.App. 134, 141-142, 209 N.W.2d 297 (1973). The determination of voluntariness is a matter of fact. Voluntary statements are admissible and involuntary statements are not. People v. Robinson, 386 Mich. 551, 194 N.W.2d 709 (1972). Police conduct in the interrogation of a suspect is governed by the "precise command" of Miranda and not, as the trial court held, a much broader prohibition. People v. Woods,382 Mich. 128, 169 N.W.2d 473 (1969). The trial court erred in ordering the statement suppressed.

Reversed and remanded to another Recorder's Court judge for a determination of the voluntariness and, therefore, the admissibility of the statement in question.

KAUFMAN, Judge (concurring).

A prisoner's [85 MICHAPP 254] right to habeas corpus is granted by Const.1963, Art. 1, § 12. As noted in People v. McCager, 367 Mich. 116, 121, 116 N.W.2d 205, 207 (1962):

"Habeas corpus is a civil proceeding the main purpose of which is to cause the release of persons illegally confined, to inquire into the authority of law by which a person is deprived of his liberty."

Nowhere in the constitution is there mention of a "reverse writ", used to accomplish exactly what the constitutional provision protects against. In this case, the "reverse writ" was used to hold defendant in derogation of his rights under M.C.L. §...