People v. Johnson, Docket No. 43427

• Decision Date: 25 August 1980
• Docket Number: Docket No. 43427
• Citation: 297 N.W.2d 713,99 Mich.App. 547
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carl JOHNSON, Defendant-Appellant. 99 Mich.App. 547, 297 N.W.2d 713
• Court: Court of Appeal of Michigan — District of US

Page 713

297 N.W.2d 713

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

Docket No. 43427.

99 Mich.App. 547, 297 N.W.2d 713

Court of Appeals of Michigan.

Aug. 25, 1980.

Released for Publication Nov. 5, 1980.

[99 MICHAPP 550] Richard T. Lamb, Kalamazoo, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Ward S. Hamlin, Jr., Pros. Atty., Leonard J. Malinowski, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and R. B. BURNS and MacKENZIE, JJ.

MacKENZIE, Judge.

Defendant Carl Johnson was charged with first-degree premeditated murder and felony murder-rape, contrary to M.C.L. § 750.316; M.S.A. § 28.548, arising out of the death of Terry Lynn Wilson in Bangor, Michigan, on July 4, 1977.

The evidence at trial indicated that defendant and the victim had known each other during high school and that defendant was seen dancing with her in a South Haven bar a few hours before her death. Three witnesses testified that they saw defendant standing beside a cream-colored Pontiac, similar to the one the victim had been driving, between 2 a. m. and 3 a. m. the morning of July 4th. They heard several muffled screams coming from the car, but left when defendant requested them to leave after stating "Go away, I fucked up bad, go away". Several hours later, the victim's body was found in the trunk of her car at a different location. She was nude from the waist down and had been stabbed numerous times, but [99 MICHAPP 551] the cause of death was determined to be a blow to the back of her head most likely from a tire iron. The tire iron was found at the location where the three witnesses had seen defendant. The pathologist was unable to determine whether the victim had been raped ¹.

Defendant was convicted of both first-degree premeditated murder and felony murder-rape in a bench trial before Judge Robert E. A. Boyle sitting by special assignment of the Michigan Supreme Court. On May 26, 1978, defendant was sentenced to life imprisonment in solitary confinement. He appeals as of right.

Defendant raises several issues on appeal. He initially contends that his signed, written waiver of jury trial filed March 30, 1978, was ineffective because it was not executed in open court in compliance with M.C.L. § 763.3; M.S.A. § 28.856. The statute requires that a waiver of jury trial be in writing, signed by the defendant, filed and made part of the record, and that "(s)uch waiver of trial by jury must be made in open court after the said defendant has been arraigned and has had opportunity to consult with counsel".

It is true that the jury waiver statute is to be strictly construed to the extent that a written waiver is ineffective where defendant does not waive his right in open court. People v. Rimmer, 59 Mich.App. 645, 230 N.W.2d 170 (1975). In the case at bar, the following colloquy occurred between the trial judge, defense counsel, and the prosecutor in open court on the first day of trial:

"THE COURT: Very well. Now, at this time I want to [99 MICHAPP 552] check-and do I understand that there is no question but what the Defendant has signed a written waiver of jury trial and filed it?

"MR. SEAMAN: That's correct, Your Honor.

"THE COURT: You agree on that?

"MR. HAMLIN: Yes, Your Honor.

"THE COURT: Very well. Thank you. You may now proceed with your opening statement, Mr. Hamlin."

Although the statute does not expressly require an oral waiver such a requirement has been imposed previously. People v. Word, 67 Mich.App. 663, 242 N.W.2d 471 (1976).

However, we agree with the Court in People v. McKaig, 89 Mich.App. 746, 750, 282 N.W.2d 209 (1979), that there should not be a hard and fast rule in every case. There it was held that a valid waiver does not require an oral acknowledgment where it is apparent that the waiver was made in open court. Similarly, in People v. Little, 87 Mich.App. 50, 55, 273 N.W.2d 583 (1978), it was held that defendant need not orally waive jury trial himself, but it was sufficient if defendant was present when defense counsel did so. See also People v. Braxton, 91 Mich.App. 689, 283 N.W.2d 829 (1979).

From the testimony of defendant and trial counsel at the motion for a new trial held December 15, 1978, it is apparent that defendant was informed several times before signing the written waiver of the advantages and disadvantages of a jury trial as opposed to a bench trial. Because of pretrial publicity and the complicated nature of defendant's insanity defense, a bench trial was chosen as a matter of trial strategy. Defense counsel anticipated a bench trial well in advance of trial when he moved to disqualify Judge Warshawsky, initially assigned to the case, because he had been exposed to evidence ruled inadmissible. Defendant[99 MICHAPP 553] had been informed by defense counsel that he would be asked about his waiver by the trial judge; in fact, defendant was present when his counsel told the trial court that defendant had waived trial by jury.

Visiting Judge Boyle, who presided at defendant's trial, indicated in his opinion and decision denying a new trial dated November 3, 1978, that he had been informed that the reason he was assigned to the case was that defendant had waived jury trial. In that opinion, Judge Boyle stated that when defense counsel stated that defendant had waived jury trial, defendant nodded his head in agreement.

Although we perceive the better practice to include an express waiver of jury trial by the defendant, in court we find no reversible error here. The close relation between defendant and trial counsel, the many pre-trial motions to disqualify Judge Warshawsky, and defendant's nodding agreement that he had waived jury trial all lead to our conclusion that his rights were adequately protected. For the same reasons, we believe his waiver was knowing and voluntary.

Defendant secondly argues that due to the lack of evidence of premeditation or deliberation at the preliminary examination, the magistrate erred in binding defendant over on an open charge of murder. We disagree.

Absent a showing of clear abuse of discretion, this Court will not reverse a magistrate's determination of probable cause. People v. Johnson, 93 Mich.App. 667, 675, 287 N.W.2d 311 (1979); People v. Juniel, 62 Mich.App. 529, 233 N.W.2d 635 (1975). The corpus delicti of first-degree murder must be demonstrated at the preliminary examination. People v. Johnson, supra. The evidence at the preliminary [99 MICHAPP 554] examination that defendant had previously known the victim and had danced with her shortly before she was murdered, and that hours later, at the scene of the crime, a witness testified to hearing screams and was told by defendant to leave because he (defendant) had "fucked up", was sufficient to establish probable cause of premeditation and deliberation. We will not discuss defendant's argument that the magistrate abused his discretion in binding defendant over on a charge of felony murder-rape, due to our treatment of defendant's felony murder conviction, infra.

Defendant also alleges that the trial court erred in admitting evidence of certain statements defendant made to the police which were allegedly involuntary. An extensive Walker ² hearing was conducted, after which Judge Warshawsky ruled inadmissible several statements made by defendant before being apprised of his Miranda ³ rights and one taped statement of defendant determined to be incomplete. Judge Warshawsky ruled that several other statements that defendant made after being given his Miranda warnings were voluntary and admissible.

On appeal from a trial court's determination of voluntariness, this Court is required to examine the entire record and make an independent determination of voluntariness. People v. Robinson, 386 Mich. 551, 194 N.W.2d 709 (1972); People v. Germain, 91 Mich.App. 154, 161, 284 N.W.2d 260 (1979); People v. Dixon, 84 Mich.App. 675, 270 N.W.2d 488 (1978).

Relevant factors to be considered in this determination are "(a) the duration and conditions of [99 MICHAPP 555] detention; (b) the manifest attitude of the police toward the accused; (c) the physical and mental state of the accused; and (d) diverse pressures which sap or sustain the accused's powers of resistance or self control". People v. Allen, 8 Mich.App. 408, 412, 154 N.W.2d 570 (1967), citing Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961). The ultimate consideration is whether "the confession (is) the product of an essentially free and unconstrained choice by its maker". Id.

In the case at bar, defendant, barefoot and clad only in a pair of blue jeans, was arrested and taken to the Bangor State Police post between 5:30 and 6 a. m. on July 4, 1977. There he was handcuffed to a bar about shoulder height. After 25 minutes, one of defendant's hands was released and he was allowed to sit in a chair. Defendant stayed in this position for two to three hours and did manage to sleep, though he was aroused several times when his hand slipped off the bar and the handcuffs caught his wrist.

At approximately 11 a. m. that day, the handcuffs were taken off and defendant was questioned for one hour and 15 minutes by Detective Robert Rank. Both defendant and Detective Rank testified that at this time defendant was seated in Rank's office and was offered food and drink. Detective Rank described defendant as fatigued and confused, in the sense that he changed details of his story, but coherent. Defendant signed a waiver of his Miranda rights at that time. It does not appear that any coercive tactics were employed.

After this interview, defendant was seated in a padded chair with one hand cuffed to a wooden table. He was able to rest the restrained hand in his lap and the upper half of his body on the table. At approximately 4 p. m., Detective Rank removed [99 MICHAPP 556] defendant's handcuff and defendant gave another statement...