People v. Leffew

• Decision Date: 12 February 1975
• Docket Number: Docket No. 19279,No. 3,3
• Citation: 58 Mich.App. 533,228 N.W.2d 449
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clifford Dale LEFFEW, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 449

228 N.W.2d 449

58 Mich.App. 533

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clifford Dale LEFFEW, Defendant-Appellant.

Docket No. 19279.

Court of Appeals of Michigan, Division No. 3.

Feb. 12, 1975.

Released for Publication May 7, 1975.

Robert L. Adams, Doerr, Doerr & Adams, P.C., Galesburg, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Donald A. Burge, Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and J. H. GILLIS and HOLBROOK, JJ.

HOLBROOK, Judge.

Defendant was convicted by a jury of larceny of over $100, M.C.L.A. § 750.356; M.S.A. § 28.588. He appeals his conviction as of right.

Two assignments of error are presented on appeal: (1) that the trial court erroneously denied defendant's written pre-trial motion for commitment to the Center for Forensic Psychiatry; (2) that the trial court erred in admitting as evidence, two statements made by defendant in response to custodial police interrogation, absent Miranda warnings. ¹

On July 30, 1973, some two and one-half months prior to trial, defendant's attorney filed a written motion to commit defendant to the custody of the Center for Forensic Psychiatry. It was claimed that defendant was incapable of comprehending his own condition in reference to the proceedings against him and was also incapable of assisting in his defense in a rational or reasonable manner. In short, said motion asserted defendant to be incompetent to stand trial. The motion was subsequently argued before the court and denied on the basis there was no showing that defendant needed to go to the Forensic Center.

However, GCR 1963, 786.3 declares that, when a defendant moves to be committed to the Department of Mental Health, 'the court Shall order the defendant committed to a diagnostic facility certified by the department of Mental Health for the performance of forensic psychiatric evaluation.' (Emphasis supplied.) People v. Butler, 43 Mich.App. 270, 282, 204 N.W.2d 325, 331 (1972); rev'd on other grounds in 387 Mich. 756, 194 N.W.2d 827 (1972). The procedure detailed in the court rule is mandatory. People v. Howard, 37 Mich.App. 662, 195 N.W.2d 289 (1972). See, also, People v. Jackson, 40 Mich.App. 237, 198 N.W.2d 714 (1972).

In the present case defendant filed a proper and timely motion for forensic psychiatric evaluation. Under these circumstances it was reversible error for the trial court to deny defendant's motion. While not unaware of the majority opinion in People v. Shelmon Williams, 38 Mich.App. 370, 196 N.W.2d 327 (1972), we feel constrained to hold in accord with Howard, supra, which we believe to be the majority view of this court.

While our determination of the foregoing issue is dispositive of this appeal, we now address our attention to the second assignment of error set forth above. We do this because on retrial the same issue might well confront the court.

On August 9, 1973, a Walker ² hearing was held to determine the admissibility of defendant's two statements made to police officers following his arrest. A review of the record of those proceedings shows that the defendant and one Henry Cobbins were arrested and taken into custody by patrolman William Sparrow for unarmed robbery. Approximately one minute following their initial detention, several other officers, including Officer Ruthven, arrived at the scene to assist. At the time of arrest and when the assisting officers arrived, defendant had around his neck what was described as a leather thong with some rings on it. Officer Ruthven took hold of the same and looked at it. At this point defendant stated, 'Those are not her rings'. Officer Ruthven responded by asking, 'Whose rings?'. The defendant replied, 'Whoever you're trying to accuse us of stealing from'. No further questions were asked. Up to this point no mention had been made by police as to whom defendant and Cobbins were suspected of having robbed. Miranda warnings admittedly and not been given.

The court ruled both statements admissible. The first on the ground that it was a volunteered statement and not in response to interrogation. The second because it was in answer to a question prompted by defendant's own volunteered statement. Substantially the same statements were subsequently testified to at defendant's trial.

We hold both statements to have been properly admitted. The first was unquestionably voluntary. Purely voluntary statements do not come within the Miranda rule. People v. Moore, 51 Mich.App. 48, 214 N.W.2d 548 (1974); People v. Griner, 30 Mich.App. 612, 186 N.W.2d 800 (1971); People v. McKee, 28 Mich.App. 610, 184 N.W.2d 750 (1970).

With respect to defendant's second statement, the issue for our...