People v. Jordan

• Citation: 386 N.W.2d 594,149 Mich.App. 568
• Decision Date: 20 May 1986
• Docket Number: Docket No. 83286
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Timothy JORDAN, Defendant-Appellee. 149 Mich.App. 568, 386 N.W.2d 594
• Court: Court of Appeal of Michigan (US)

Page 594

386 N.W.2d 594

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Timothy JORDAN, Defendant-Appellee.

Docket No. 83286.

149 Mich.App. 568, 386 N.W.2d 594

Court of Appeals of Michigan.

Submitted Oct. 9, 1985.

Decided March 3, 1986.

Released for Publication May 20, 1986.

[149 MICHAPP 570] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Deputy Chief, Civil and Appeals, and Brian Marzec, Asst. Pros. Atty., for the people.

Robert L. Ziolkowski, Detroit, for defendant-appellee on appeal.

Before MAHER, P.J., and WAHLS and HOOD, JJ.

WAHLS, Judge.

Defendant, 16 years old at the time of his arrest on May 29, 1984, is charged in the Detroit Recorder's Court with first-degree murder and felony-firearm. Defendant moved to suppress evidence of his oral and written confessions and an evidentiary hearing was held to determine the voluntariness of the confessions. Judge Henry Heading granted the motion and suppressed the two confessions. The prosecutor appeals by leave granted.

Phillip Robinson was killed on May 2, 1984. Defendant was a suspect and the police sought to detain him. On May 29, 1984, defendant's sister Tracy called police to inform them that defendant wished to "turn himself in". About 8 p.m., defendant gave himself up to Sergeant Hyman in the presence of his mother and his sisters Tracy and Beverly. Hyman read defendant his Miranda rights ¹ and took him to police headquarters. In the car, defendant told Hyman that he got scared and shot Robinson and that a third person, Dino, had told him to shoot. Defendant's mother came down to police headquarters separately and, about 9 [149 MICHAPP 571] p.m. defendant made a written statement to Sergeant Day in the presence of his mother and possibly a youth officer. The statement was written down in question and answer form and took about 20 minutes to complete.

At the evidentiary hearing, the prosecutor presented evidence that: defendant was never threatened by the police on the night of May 29, 1984; defendant was not handcuffed while in the car and volunteered his oral statement; defendant and his mother did not appear to be under the influence and responded appropriately to questions; and defendant gave the written statement in the presence of both his mother and a youth officer.

Defendant presented evidence that: he was afraid of the police; the police had refused to permit his mother or his sister Beverly to ride down to police headquarters with him; he gave a statement in the police car only after the officer driving the car threatened him; ² he was interrogated by Sergeant Day for some time before he was permitted to call his mother and have her come to headquarters; during that time, he was further threatened; ³ the youth officer was not present during the actual giving of the written statement; and he and his mother were never told of his right to go to the youth home.

At the evidentiary hearing, defense counsel argued that the per se rule of People v. Wolff, 23 Mich.App. 550, 179 N.W.2d 206 (1970), applied and defendant's confessions must be suppressed simply [149 MICHAPP 572] because the police did not immediately take defendant before the juvenile court. Counsel argued in the alternative that, even under a totality-of-the-circumstances analysis, defendant's confessions were not voluntary because of the threats, the aura of intimidation and the one-hour interrogation without his mother present. The prosecutor responded that the totality of the circumstances must be considered pursuant to People v. Irby, 129 Mich.App. 306, 342 N.W.2d 303 (1983), lv. den. 418 Mich. 951 (1984), and that sufficient indicia of voluntariness existed in this case. In rendering his decision from the bench, Judge Heading stated in part:

"As I interpret the law, when the police department, police officers arrest a juvenile, they take him to juvenile court, not to some precinct station and lock the door and begin questioning him. This is a statute, it's a law in the State of Michigan. It's been tested and it has withstood the challenge.

"So, in my opinion, it's a law, otherwise some court would have overturned it, declared it unconstitutional or the Legislature would have repealed it. But they haven't done that.

"Now, personally, I don't like it, the law, I think something should be done about it. But as long as it's the law, I have got to follow it and I am going to follow it. They bypassed the juvenile home with this young man and they shouldn't have done it and they come up with all kinds of excuses. The juvenile home won't take them after a certain hour of the night, it's a rule of the police department to do it this way. Well, maybe it is, but somebody has got to stop them and I am going to try once again by granting your motion to suppress both confessions.

"He will not be released. If the prosecutor wants to appeal, and I think they should, they should do that. But it's plain to see that somebody has to stop the police from the procedure they have and that is bypassing that youth home with a juvenile, not permitting his [149 MICHAPP 573] parents or friends to go with him if they ask and I believe they did that in this case."

On appeal, the prosecutor asserts that, notwithstanding that the judge found that no one was permitted to accompany defendant, the judge in essence found the confessions per se involuntary. Defense counsel characterizes the rulings as, in essence, finding the written confession per se involuntary and the oral confession involuntary under the totality of the circumstances. We sympathize with counsels' efforts to distill the "essence" of Judge Heading's ruling but, on our review of the entire suppression hearing, we are not convinced that the judge decided only the voluntariness of defendant's confessions. At the same time, we do not believe that Judge Heading suppressed the statements merely because defendant was not taken immediately to juvenile court or to the youth home.

We first address the exclusion of evidence obtained because of a statutorily unlawful detention. We begin with an examination of the defendant's rights that were violated in this case. M.C.L. Sec. 764.27; M.S.A. Sec. 28.886 provides in part:

"Whenever any child under the age of 17 years is arrested with or without a warrant, such child shall be taken immediately before the juvenile division of the probate court of the county wherein the offense is alleged to have been committed and the officer making the arrest shall immediately make and file or cause to be made and filed, a petition against such child * * *." (Emphasis added.)

JCR 1969, 3.3(B) provides that, when an officer takes a child into custody during the hours that the court is not open, a judge or designated court officer must be immediately contacted concerning [149 MICHAPP 574] the child's release or placement. If the court officer decides on placement, the arresting officer must complete a complaint statement setting forth reasons for detention. M.C.L. Sec. 712A.16; M.S.A. Sec. 27.3178 (598.16) provides a general rule that a child under the age of 17 years "shall not be confined in any police station, prison, jail, lock-up, or reformatory" and further authorizes the establishment of a juvenile detention home as an agency of the probate court. In the instant case, the police were obligated to immediately contact the youth home about defendant's placement. On questioning by Judge Heading, the police testified that for a number of reasons it was police practice to take juveniles to police headquarters, prepare the necessary complaint statement and then proceed to the youth home. It clearly was Judge Heading's concern at the evidentiary hearing that the police were using the time at headquarters to interrogate and extract confessions and were not acting "immediately" to contact the court or a court officer. Sergeant Day testified that he personally believed in the instant case that there was enough evidence that a warrant for defendant's arrest could have been obtained. He testified that, even if defendant had denied the offense, he would not have released defendant. The youth officer acknowledged that defendant could have been placed in the youth home even without the confessions. Yet, the police detained defendant at headquarters for from about 45 minutes to an hour, took a written statement from him after his mother arrived, and only then processed the papers to have him placed at the youth home. There was a clear violation of defendant's statutory rights. Contrast People v. Morris, 57 Mich.App. 573, 576, 226 N.W.2d 565 (1975), lv. den. 394 Mich. 751 (1975).

We begin our review of the case law with the so-[149 MICHAPP 575] called per se rule of Wolff, supra. Howard Wolff was 16 years of age when he was arrested and taken to police headquarters. After about four hours of questioning, Wolff gave a formal confession to the chief assistant prosecuting attorney in the presence of a stenographer and two detectives. Wolff was alone. The trial court found that the confession was voluntary and admissible. This Court declined to disturb that finding, but held:

"We reverse on the authority of People v Roberts, 3 Mich App 605; 143 NW2d 182 (1966). The failure to take this minor defendant before the juvenile court immediately, as required by CL 1948, Sec. 764.27 (Stat Ann 1954 Rev Sec. 28.886), was a violation of defendant's right to due process and vitiated the August 14 confession. The subsequent finding of voluntariness did not cure this defect." 23 Mich.App. 552, 179 N.W.2d 206. (Emphasis in original.)

Defendant in the instant case has, in effect, argued that the Wolff holding means that the failure to take any minor defendant before the juvenile court immediately, as required by statute, necessarily violates that defendant's right to due process. We disapprove of such an interpretation of Wolff and construe the holding of that case as being...