People v. Johnson

• Decision Date: 13 July 1959
• Docket Number: No. 70,70
• Parties: PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Herbert L. JOHNSON, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 739

97 N.W.2d 739

356 Mich. 619

PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Herbert L. JOHNSON, Defendant and Appellant.

No. 70.

Supreme Court of Michigan.

July 13, 1959.

James B. Stanley and Milo O. Bennett, Kalamazoo, for defendant and appellant.

Noble O. Moore, Marshall, Pros. Atty., for plaintiff and appellee.

Before the Entire Bench.

EDWARDS, Justice.

Defendant Herbert L. Johnson is charged with murder of his wife. Defendant's counsel has filed notice of a defense of temporary insanity.

He also filed a motion for an order requiring the prosecuting attorney to produce the transcript of defendant's confession taken August 12, 1958, shortly after the death of his wife. In support of his motion, defendant presented an affidavit from a psychiatrist which stated that the psychiatrist had been retained to give a professional opinion pertaining to the defense of temporary insanity; that all of the facts, including statements of defendant immediately after the death, were relevant as showing his state of mind; that defendant had not been able to relate completely what he had said to the police in a statement taken shortly after the death; and that the psychiatrist regarded inspection of defendant's statement as a necessary preliminary to the psychiatric opinion he had been asked to render.

The trial judge appointed a sanity commission which found defendant sane. The case was then called for trial before any order was entered upon the motion referred to above, but a mistrial resulted during examination of the jury panel.

Prior to retrial, on January 23, 1959, the trial judge denied the motion under consideration, holding 'that there is no statute, case or rule in this State which in a criminal case provides for or authorizes any discovery such as defendant requests.' Defendant theh sought leave to appeal to this Court which was granted February 19, 1959.

The legal concept of a criminal trial has changed considerably in modern times. It is seen less as an arena where two lawyer gladiators duel with the accused's fate hanging on the outcome and more as an inquiry primarily directed toward the fair ascertainment of truth.*

It is certain that at common law no defendant had any right to the discovery of any of the evidence possessed by the prosecution Rex v. Holland (4 T.R. [Durnford & East], 691), 100 Eng.Rep. 1248 (1792); 6 Wigmore Evidence (3d ed.), § 1859g; 52 A.L.R. 207, Annotation--Right of accused to inspection or disclosure of evidence in possession of prosecution; 17 Am.Jur., Discovery and Inspection, § 32. And in various instances this has been held to apply to confessions or statements made by the defendant. People v. Parisi, 270 Mich. 429, 259 N.W. 127; State v. Kupis, 7 W.W.Harr. 27, 37 Del. 27, 179 A. 640; State v. Tune, 13 N.J. 203, 98 A.2d 881; Steensland v. Hoppmann, 213 Wis. 593, 252 N.W. 146.

The basic problem with which we deal in this case was discussed at length by Justice Cardozo in a leading case decided in the New York court of appeals, People, ex rel. Lemon v. Supreme Court, 245 N.Y. 24, 156 N.E. 84, 52 A.L.R. 200. The case resulted in a writ of prohibition which in effect reversed a discovery order pertaining to statements taken by the prosecuting attorney from witnesses other than the defendant. But the opinion of the court clearly outlined the tendency on the part of criminal courts to order discovery where the interests of justice so required (245 N.Y. at pages 30-32, 156 N.E. at page 85):

'Discovery will be ordered if the exhibit is the basis of the charge, as e. g., where the indictment is for sending a threatening letter. Rex v. Harrie, 6 Car. & P. 105; cf. People v. Bellows, 1 How.Pr., N.S., 149. There is some authority for the view that it will be ordered in other cases where the thing to be inspected is admissible in evidence and a failure of justice may result from its suppression. Thus, in Regina v. Spry and Dor, 3 Cox, C.C. 221, an inspection of the contents of the stomach was permitted in a prosecution for homicide. In People v. Gerold, 265 Ill. 448, 107 N.E. 165, a county treasurer charged with defalcation was held to have the right to inspect official books and documents. In Commonwealth v. Jordan, 207 Mass. 259, 93 N.E. 809, a prosecution for murder, there was recognition of the power to permit an inspection of portions of the body taken at the time of the autopsy by the medical examiner and also weapons and other exhibits in the possession of the public prosecutor, though the court refused the order in the exercise of discretion. Other cases point the same way with more or less distinctness. See, e. g., Newton v. State, 21 Fla. 53; Daly v. Dimock, 55 Conn. 579, 12 A. 405; State v. Howland, 100 Kan. 181, 163 P. 1071. The power frequently asserted to compel the return of property illegally impounded is based upon the assumption of a supervisory jurisdiction over the acts of public prosecutors. Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 58 L.Ed. 652; People v. Chiagles, 237 N.Y. 193, 199, 142 N.E. 583, 32 A.L.R. 676. Cf. Kenny, Outlines of Criminal Law, 477, citing Regina v. Puddick, 4 F. & F. 497. There may be something of kinship here to the power to compel inspection in furtherance of justice. Argument earnestly upholding the latter jurisdiction, though conceding much authority against it, will be found in Mr. Wigmore's treatise. 3 Wigmore Evidence, §§ 1859g, 1863. Cf. 2 Bishop, New Criminal Proc. (2d Ed.) § 959d. There are pronouncements, however, to the contrary in the works of learned commentators. 2 Russell on Crimes, 1985, 2096, 2098; 9 Halsbury, Laws of England, p. 387, § 152; cf. State v. Howard, 191 Iowa 728, 183 N.W. 482.

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'The supervisory control, whatever it may be, that belongs to courts of common law in respect of a criminal prosecution, is an autochthonous growth, a thing evolving from within.'

And the court carefully distinguished the case from one in which discovery of a confession was sought (245 N.Y. at page 33, 156 N.E. at page 87):

'She does not ask that she inspect any confession made in her name and admissible against her. Conceivably such inspection may be necessary at times, as, for instance, to enable a defendant to prove the forgery of a signature.'

In more recent times, the inherent control of the court over the confession is frequently spelled out in cases where the court did not find that the ends of justice required the particular discovery order sought.

'We think that such a power of control over a confession and its use does exist in a judicial proceeding, as part of the inherent nature and dignity of our system of administering criminal law, and that even without any rule or statute, therefore, the court is not powerless to require the Government to furnish the defendant with a copy of his confession, if the Government intends to use it as evidence on the trial and where the court deems it necessary in the interest of justice that the defendant should be furnished with a copy.

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'An exercise of the power to require the Government to furnish the defendant with a copy of his confession would of course, be wholly a matter of judicial grace. There could hardly be any need to exercise it, where the attempt to obtain a copy manifestly was simply a part of a blunderbussroving, so that the privilege thereby would tend to reach the stature of an absolute right. But there may be cases where the circumstances are such that the judicial conscience properly feels that the interest of justice will be best served by allowing the defendant before trial to have a copy of his confession.' Shores v. United States, 8 Cir., 174 F.2d 838, 845, 11 A.L.R.2d 635.

See, also Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523; People v. Gatti, 167 Misc. 545, 4 N.Y.S.2d 130; State v. Clark, 21 Wash.2d 774, 153 P.2d 297; People v. Skoyec, 183 Misc. 764, 50 N.Y.S.2d 438; 48 Journ.Crim.Law 305 (1957-1958)--The right of an accused to obtain pre-trial inspection of his confession.

The United States supreme court has recently held that failure to allow defendant to inspect his confession prior to pleading to an indictment does not constitute a denial of due process. Cicenia v. La Gay, supra. But the holding was based upon 'absence of a showing of prejudice,' and the case recognized the discretionary power of the trial court to grant or deny inspection. See Leland v. State of Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302.

In a Louisiana case, the supreme court of Louisiana seemed to hold that a defendant in a criminal case had a constitutional right to inspect and copy his written confession held by the prosecuting attorney. State v. Dorsey, 207 La. 928, 22 So.2d 273. Cf. State v. Lea, 228 La. 724, 84 So.2d 169.

In a New York case, closest to our instant facts, where the defendant's statement was sought for purpose of use by psychiatrists, the court held the proposed inspection consistent with 'a right sense of justice' and within the court's discretionary power. People v. Rogas, 158 Misc. 567, 287 N.Y.S. 1005, 1006. Cf. People v. Skoyec, supra.

The most recent and thorough consideration of this general problem by a State supreme court has taken place in New Jersey. In State v. Tune, supra, the supreme court divided 4-3 to reverse a trial judge's order granting inspection of a confession. Justice Vanderbilt's majority opinion, acknowledging that the matter was within the sound discretion of the trial judge, held the showing made by the accused was insufficient to warrant the order and hence the judicial discretion had been abused. Justice Brennan, for the minority, argued vehemently for a more liberal view both of the facts bearing upon judicial discretion and the right of discovery in criminal cases.

The same general problem came back before the same court in 1958, with the authors of the opinions in the Tune case both replaced.

Chief Justice Weintraub, for a...