People v. Lumsden

• Decision Date: 08 June 1988
• Docket Number: Docket No. 95526
• Citation: 423 N.W.2d 645,168 Mich.App. 286
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alan Wilson LUMSDEN, Defendant-Appellant. 168 Mich.App. 286, 423 N.W.2d 645
• Court: Court of Appeal of Michigan — District of US

Page 645

423 N.W.2d 645

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alan Wilson LUMSDEN, Defendant-Appellant.

Docket No. 95526.

168 Mich.App. 286, 423 N.W.2d 645

Court of Appeals of Michigan.

Submitted Feb. 9, 1988.

Decided May 2, 1988.

Released for Publication June 8, 1988.

[168 MICHAPP 288] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William F. Delhey, Pros. Atty., and Kirk W. Tabbey, Asst. Pros. Atty., for the People.

State Appellate Defender by P.E. Bennett, Lansing, for defendant-appellant on appeal.

Before MAHER, P.J., and SHEPHERD and TERTZAG, ^* JJ.

MAHER, Presiding Judge.

At the conclusion of an eight-day jury trial in the Washtenaw Circuit Court, defendant was found guilty of felony murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. He was thereafter sentenced to life imprisonment for the murder conviction and sixty to ninety years imprisonment for the robbery conviction. He now appeals his convictions as of right. We affirm in part and reverse in part.

During the early morning hours of September 22, 1985, James Visel, a reputed drug dealer, was robbed and killed by three assailants at his home in Ypsilanti, Michigan. The assailants took Visel's jewelry and stock of drugs before murdering him execution-style (i.e., shot in the back of the head at close range, while kneeling with hands tied behind his back).

The next evening (September 23) at 9:30 p.m., Detective Joe Hall of the Washtenaw County Sheriff's Department received an anonymous call from a man who identified defendant as one of the assailants. When asked how he knew this, the caller said, "Well, you just follow it up. You'll find [168 MICHAPP 289] out it's true." The caller went on to say that defendant drove a red or maroon pickup truck, model year 1982 or 1983; that defendant could be found at one of three addresses in Washtenaw County; and that defendant possessed a sawed-off shotgun and a pistol, both loaded, which he would not hesitate to use. The caller did not reveal the source of the information and Detective Hall admitted that, at the time, he had no way of determining its reliability.

On the basis of this information, a stakeout was organized that night. Each of the addresses provided by the caller was placed under surveillance using unmarked vehicles. As Detective Hall and two other officers were making a final check of an address on Pearl Street, they noticed a red Ford pickup truck parked in the driveway. The truck was occupied by a white male. They suspected this to be defendant since an earlier LEIN check of all vehicles owned by defendant revealed that he owned a red 1983 Ford pickup truck. After they watched the truck for a few minutes, it pulled out of the driveway.

As defendant drove past the officers, they were able to observe his license plate number. A check of the number indicated that the truck did indeed belong to defendant. The officers followed defendant for a brief time when he began picking up speed. When defendant ran a red light or stop sign, back-up assistance was summoned. Soon, other police cars--marked and unmarked--joined the chase. The marked car had its emergency lights and sirens activated. The vehicles raced along for about two miles, reaching speeds of up to eighty-five mph. Then, the truck veered sharply left into the oncoming traffic, jumped the curb, flew over a wide ditch and through a fence, flipped over two or three times, and finally came to [168 MICHAPP 290] rest in a cornfield. Before the police could reach the truck, defendant, who was apparently unharmed, fled into the field. One officer observed a .22 caliber handgun underneath the driver's seat of the truck.

A search of the field was conducted with the aid of several police tracking dogs. After an extensive search, defendant was located and placed under arrest. A search of his person produced some jewelry belonging to Visel. During a subsequent inventory search of the truck, the police found--in addition to the handgun--a syringe, more of Visel's jewelry, and a 12-gauge sawed-off shotgun. ¹

Defendant was brought to the police station at approximately 6 a.m. on September 24 and booked on a concealed weapons charge. That charge was later dropped and, in its stead, he was charged with open murder and armed robbery. At the time he was first brought to the station, Detective Hall advised him of his Miranda rights ² and asked whether he would make a statement. Defendant said only that he was tired, had been bitten by the tracking dogs, and wanted to sleep. With this, the interview ended and defendant was allowed to return to his jail cell.

On September 25, at 12:15 p.m., defendant was again brought to the interview room for questioning by Detective Hall. After being advised of his Miranda rights a second time, he purportedly indicated that he understood his rights, wished to waive them, and did not want an attorney present. He then proceeded to tell Detective Hall that he, along with Rodney Crawford and Robin Feldman, [168 MICHAPP 291] drove to Visel's house during the early morning of September 22 with the intent to rob him. They waited outside until Visel returned home and followed him inside. Using electrical cord, they tied up Visel, his teenage daughter, and her friend. They took Visel downstairs where a safe was located and beat him until he disclosed the combination. Defendant and Feldman removed the jewelry, money, and drugs from the safe and took them outside to the truck. Crawford remained inside with Visel. While loading the truck, defendant heard two gunshots and observed Crawford running from the house. Defendant insisted that he had nothing to do with the shooting.

Shortly after making this statement, defendant was taken before a magistrate for arraignment on the weapons charge. The time was 2 p.m. on September 25--approximately thirty-two hours after he was first taken into custody. The next morning, the weapons charge was dropped and he was arraigned on charges of open murder and armed robbery.

Prior to trial, defendant filed a motion for a Walker hearing ³ to determine the voluntariness of his confession. He alleged that his statement to the police was involuntary for three reasons: First, defendant was allegedly denied an attorney after requesting one; second, the delay between arrest and arraignment was unreasonable and used to coerce a confession; and third, defendant's injuries and the discomfort suffered at the jail house constituted physical duress. After hearing testimony and arguments on the motion, the trial court denied each of defendant's claims.

Defendant's trial commenced on May 13, 1986, before a jury in the Washtenaw Circuit Court. He [168 MICHAPP 292] was tried on charges of open murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. On May 22, 1986, at the conclusion of an eight-day trial, the jury pronounced defendant not guilty of first-degree premeditated murder and second-degree murder, but guilty of felony murder and armed robbery. On June 27, 1986, defendant was sentenced to life imprisonment for the murder conviction and sixty to ninety years imprisonment for the robbery conviction. The sentencing court let stand both of those sentences despite defense counsel's argument that the robbery conviction was subsumed within the felony murder conviction.

I

Defendant first argues that his arrest was unlawful because it was based upon information received from an anonymous source which was not shown to be reliable. He therefore claims that his inculpatory statements to the police, as well as the physical evidence obtained after his arrest, must be suppressed as "fruit" of the unlawful arrest.

A review of the record reveals that defendant did not assert this claim below, either at the suppression hearing or at trial. Hence, the issue has not been preserved for appeal. People v. Coons, 158 Mich.App. 735, 740, 405 N.W.2d 153 (1987), lv. den. 428 Mich. 900 (1987); People v. Moore, 144 Mich.App. 104, 105-106, 372 N.W.2d 690 (1985). But, we may review newly asserted constitutional issues if our refusal to review would result in a miscarriage of justice. This is especially true where the record is sufficient to allow review and the issue is decisive of the outcome. People v. Snow, 386 Mich. 586, 591, 194 N.W.2d 314 (1972); People v. Barr, 156 Mich.App. 450, 459, 402 N.W.2d [168 MICHAPP 293] 489 (1986). Here, because the record is sufficiently developed and the issue is outcome-determinative, we will briefly address defendant's claim.

Very simply, defendant misconstrues the basis of his arrest. The informant's tip served only as the impetus for the investigation, not the arrest. Defendant was stopped only after he ran a red light or stop sign, exceeded the speed limit, drove recklessly, attempted to elude the police, and left the scene of his own accident. These unlawful activities justified the search and seizure of both his person and truck. See People v. Laube, 154 Mich.App. 400, 397 N.W.2d 325 (1986), lv. den. 428 Mich. 856 (1987); People v. Ragland, 149 Mich.App. 277, 385 N.W.2d 772 (1986).

II

Defendant also argues that the statement given to the police should have been suppressed because (1) the delay between his arrest and arraignment was allegedly used to extract the statement, and (2) his request for an attorney at the time of his arrest was refused. Because these arguments were asserted below, they have been preserved for appeal. However, we do not believe the trial court erred in not suppressing the statement.

The record shows that defendant was taken into custody at approximately 6 a.m. on September 24, 1985. At 12:15 p.m. the next day, September 25, he made a statement to Detective Hall wherein he admitted participating in the robbery but denied any involvement in Visel's murder. A couple hours later he was arraigned on charges of possessing...