People v. Lasley

• Decision Date: 03 February 1970
• Docket Number: Docket No. 5658,No. 2,2
• Citation: 175 N.W.2d 883,21 Mich.App. 340
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry LASLEY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 883

175 N.W.2d 883

21 Mich.App. 340

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry LASLEY, Defendant-Appellant.

Docket No. 5658.

Court of Appeals of Michigan, Division No. 2.

Feb. 3, 1970.

Released for Publication March 26, 1970.

Carl L. Bekofske, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Solicitor Gen., Lansing, Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Asst. Pros. Atty., Genesee County, Flint, for plaintiff-appellee.

Before QUINN, P.J., and BRONSON and T. M. BURNS, JJ.

QUINN, Presiding Judge.

Defendant's jury trial resulted in his conviction of breaking and entering. M.C.L.A. § 750.110 (Stat.Ann.1962 Rev. § 28.305). He was sentenced and he appeals.

In the early morning hours of August 16, 1967, a police officer responding to a request that he investigate at a gasoline station entered the station. There he discovered defendant crouched down behind an overturned cigarette machine. Defendant was then handcuffed, searched and taken to the police station where he was interrogated. At this interrogation, defendant admitted being present at the gas station.

On appeal, defendant contends reversible error was committed at a Walker type* hearing when the prosecuting attorney was permitted to use leading questions during the interrogation of the investigating detective. Under M.C.L.A. § 768.24 (Stat.Ann.1954 Rev. § 28.1047) and People v. Johnson (1966), 5 Mich.App. 257, 146 N.W.2d 107, the record does not support this contention.

Defendant further contends that his statement during in-custody interrogation, which gave rise to the Walker type hearing, was inadmissible because the record does not disclose that defendant was effectively advised of his right to have appointed counsel present during custodial interrogation. Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

At the conclusion of the Walker type hearing, the trial judge found that the statement was voluntary and admissible. We do not disturb such a finding unless it was clearly erroneous. People v. Walker (1967), 6 Mich.App. 600, 149 N.W.2d 912. Here, the record amply supports the trial court, and also discloses that defendant was effectively advised of his right to have appointed counsel present during custodial interrogation. People v. Townsend (1969), 17 Mich.App. 267, 169 N.W.2d 357.

In addition and assuming arguendo that the standards of Miranda, supra, were not met, we can find no reversible error in the admission of defendant's statement. Harrington v. California (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284. The only effect of the statement was to place defendant at the scene of the crime, and he was apprehended at the scene of the crime.

Affirmed.

BRONSON, Judge (dissenting).

Defendant, Larry Lasley, was tried before a jury in the Genesee County Circuit Court and convicted of the crime of breaking and entering. C.L.1948, § 750.110 (Stat.Ann.1962 Rev. § 28.305).

In the early morning hours of August 16, 1967, police officer John Eddy, responding to a request that he investigate at a gasoline station, entered the station building. There he discovered defendant crouched down behind an overturned cigarette machine. Defendant was then handcuffed, searched and taken to the police station where he was interrogated. At this interrogation defendant admitted being present at the gas station. A Walker-type ¹ hearing was held to determine the admissibility of defendant's statement. The statement was found to have been voluntary and in accordance with the requirements set down by the United States Supreme Court in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, reh. den. California v. Stewart., 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121.

In appealing his conviction, defendant asserts that his confession was involuntary and inadmissible at trial because he was not advised of his right to appointed counsel as required by the rule of Miranda v. Arizona, Surpa.

The transcript of the Walker hearing held before trial to determine the voluntariness of defendant's written statement discloses the following pertinent facts: On August 16, 1967, the defendant was taken to the offices of the Detective Bureau of the Flint Police Department at 1:25 A.M. At that time defendant was placed in a room with detective Don Hatchew and informed of his rights in the following manner:

'(Detective Hatchew on direct examination)

'A. When I first went into the room with Mr. Lasley I identified myself to him as a police officer and I told him my name. I then advised him of certain rights that he had relative to this matter. I advised him that he had the right to remain silent--

'Q. What was his response after you asked him if he understood that?

'A. He said that he did understand that.

'Q. Then what, what was the next question?

'A. I also advised him that anything he did tell me could be used against him in court. And I asked him if he understood this and he said yes, that he did. I told him that he had the right to have an attorney present at the time that we discussed this matter, if he did wish to discuss it. And I asked him if he understood this and he said yes. I then asked him if he wanted to contact an attorney and he said no, that he didn't. And lastly, I advised him that if the--If he should require an attorney, that if the matter was taken into court, the court would appoint one for him, if it saw fit, and that it would be of no cost to himself.' (Emphasis added.)

The import of this statement is that there existed a conditional right to appointed counsel, I.e., 'if the matter was taken into court' and 'if (the court) saw fit.'

The testimony then continued as follows:

'Q. Did--

'A. He would be represented by a proper counsel.

'Q. Did you tell him that this court appointed attorney--

'MR. RING: Objection, your Honor, to the leading questions of the prosecution.

'THE COURT: Well, there's no jury here, I think perhaps we can expedite it. Unless, of course, the leading questions get to the point where they're suggesting things to the witness' recollection, I'm not going to bar leading questions.

'Q. (By Mr. Leiter, continuing): Did you discuss with him the fact that if he couldn't afford an attorney, one could be appointed for him, and that attorney could be present during any questioning?

'A. Yes. Actually what I told him, as I tell everyone that comes in, if he doesn't have sufficient funds for an attorney, one would be appointed for him and that one would be available whenever he desired.

'Q. Did you then ask him if he wanted to talk about--

'MR. RING: Objection, your Honor, about the leading questions.

'Q. (By Mr. Leiter, continuing): Let me ask then this: Well, simply, what was the next statement made either by you or by the respondent?

'A. He said--I asked him if he understood this and he said yes. Relative to the attorney. And I asked him if he wanted to discuss this particular charge that I had advised him of, of breaking and entering, and he says okay. I asked him what he was doing in this gas station and how he came to be there. He said that he was walking by the front of the gas station; that the front door was standing open.'

At the conclusion of the Walker hearing, the lower court found defendant's statement to have been voluntarily given and therefore admissible in evidence at trial. The statement was admitted.

The substance of defendant's contentions are (1) that part of the detective's testimony was merely the response to the prosecutor's improper leading questions and must be discounted, and (2) that the detective's testimony failed to establish that the defendant was effectively and correctly advised of his right to appointed counsel.

In Miranda v. Arizona (1966), 384 U.S. 436, 468--473, 86 S.Ct. 1602, 1625--1627, 16 L.Ed.2d 694, 720--723, the Supreme Court states, in part:

'The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. * * *

'* * * Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.

'Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.

'In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of he right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent--the person most often subjected to interrogation--the knowledge that he too has a right to have counsel present. As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can...