People v. Mallory
| Decision Date | 07 February 1985 |
| Docket Number | Nos. 64270,65203 and 65206,s. 64270 |
| Citation | 365 N.W.2d 673,421 Mich. 229 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bobby MALLORY, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles E. HOWARD, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Hughie v. LEWIS, Defendant-Appellant. |
| Court | Michigan Supreme Court |
Charles Burke, Livonia, for defendant-appellant Mallory.
Jack J. Kraizman, Detroit, for defendant-appellant Howard.
Steven Rabinovitz, Troy, for defendant-appellant Lewis.
Defendants were convicted by a jury of first-degree felony murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and were sentenced to the statutorily mandated term of life imprisonment. The Court of Appeals affirmed their convictions 1, and we granted defendants' applications for leave to appeal. 2
On January 12, 1978, at about 10:30 p.m., O'Dell Cheatham was beaten and stabbed in a Detroit alley. An eyewitness saw two men, whom he could identify, beating and kicking the victim near a car. That witness also saw a third man, whom he could not identify, seated in the car in the driver's position. The witness contacted the police and relayed descriptions of the assailants and of the car. Shortly thereafter, only a few blocks from the scene of the crime, police officers on routine patrol saw three men standing near an apparently disabled vehicle. At that time, defendant Howard stated to the police that the disabled vehicle was his. Within minutes, the patrol officers received a radio dispatch that three men were wanted for the felonious assault on O'Dell Cheatham. Defendants Mallory and Lewis and the disabled vehicle fit the descriptions relayed with the dispatch. As a result, the patrol officers arrested defendants. It was around 11 p.m. Subsequently, it was discovered that a small sum of money and a watch were missing from Cheatham's person. Cheatham died the following afternoon of injuries inflicted during the assault.
During the morning of January 13, 1978, a police sergeant obtained a "reverse writ" from a magistrate. A reverse writ was a unique procedure through which Detroit police sought to justify detention of arrestees. See People v. Casey, 411 Mich. 179, 305 N.W.2d 247 (1981). Another police officer obtained a second reverse writ the following morning because each was thought to be valid for only one day. At that time, the officer noticed what he thought might be blood on Mallory's shoes.
Around 5 p.m. on January 14, 1978, defendants were placed in several lineups. The eyewitness identified Mallory and Lewis as O'Dell Cheatham's assailants. The witness also remarked that the assailants appeared to have jumped on Cheatham as he lay on the ground. On the basis of that statement, around 8 p.m., a police officer seized Mallory's shoes from him while he was in detention. The officer did not have a search warrant.
Also during the evening of January 14, Howard's sister arrived at the police station to visit her brother. One of the investigating officers accompanied Howard from his cell to a visiting area. During the course of that brief journey, the officer remarked to Howard that Mallory and Lewis had been positively identified as Cheatham's assailants. In response, Howard stated that if they were identified, he was identified, because he had been with them the entire evening of January 12. Howard had been advised of his right to remain silent sometime the previous day by another officer.
Arrest warrants were issued, and defendants were finally arraigned on the morning of January 15, 1978. Defendants were charged with first-degree felony murder, predicated on an underlying larceny, and were tried jointly.
At trial, all defense counsel rigorously cross-examined the eyewitness to O'Dell Cheatham's beating in an attempt to show that the witness' identifications of defendants and of the car were suspect. In response, the prosecution moved that the jurors be taken to the crime scene so that they could observe firsthand the view which the eyewitness had from his apartment. The trial judge permitted the jury view, but, although all defense counsel were present during the view, did not allow defendants to accompany the jury.
During the course of trial, Mallory's shoes were admitted into evidence. Expert testimony established that the victim's blood type was the same as that found on the shoes and that Mallory's blood type was different. Howard's statement to the police officer regarding identification was also admitted into evidence. The jury returned a verdict of guilty as charged.
Defendants raise a plethora of issues for our consideration. They all allege that the trial court erred so as to require reversal by: (1) excluding them from the jury view of the crime scene, (2) failing to instruct the jury that the underlying larceny for purposes of felony murder must have been a felony, (3) instructing the jury so as to remove from its consideration the element of malice, (4) admitting testimony that the victim was dying of cancer, and (5) employing the struck jury selection method. Howard and Lewis also challenge the voluntariness of Howard's statement to the police and claim that their trial counsel rendered ineffective assistance. Individually, Mallory claims that evidence of his shoes and the associated blood tests should have been suppressed; Howard claims that his motions to quash the information, for a directed verdict, and for a new trial were improperly denied; and Lewis challenges his detention under the reverse writs.
The reverse writ procedure under which defendants were held for approximately 60 hours before being arraigned on proper complaints and warrants was "without legal effect and may not be employed to justify the detention of a citizen", i.e., "[i]t is a nullity" having no constitutional or statutory bases. Casey, supra, pp. 180-181, 305 N.W.2d 247. Defendants Mallory and Howard challenge the admissibility at trial of several major pieces of evidence against them which were obtained by the police from defendants during detentions pursuant to the two reverse writs.
When a person is the subject of a felony arrest without a warrant, two statutes require that the person be brought promptly before a magistrate for arraignment on a complaint and warrant.
"A peace officer who has arrested a person for an offense without a warrant shall without unnecessary delay take the person arrested before a magistrate of the judicial district in which the offense is charged to have been committed, and shall present to the magistrate a complaint stating the charge against the person arrested." M.C.L. Sec. 764.13; M.S.A. Sec. 28.871(1).
"Every person charged with a felony shall, without unnecessary delay after his arrest, be taken before a magistrate or other judicial officer and, after being informed as to his rights, shall be given an opportunity publicly to make any statement and answer any questions regarding the charge that he may desire to answer." M.C.L. Sec. 764.26; M.S.A. Sec. 28.885.
Similarly, if with less specificity, the state constitutional guarantee of due process of law requires an arrestee's prompt arraignment. Const. 1963, art. 1, Sec. 17. Both the constitutional and statutory requirements are designed to advise the arrestee of his constitutional rights and the nature of the charges against him by an impartial judicial magistrate, to insure that the arrestee's rights are not violated, 3 and to afford the arrestee an opportunity to make a statement or explain his conduct in open court if he so desires. Further, prompt arraignment is of particular importance when, as here, a person is arrested without a warrant. In such situations, arraignment provides a judicial determination of probable cause which would not otherwise occur until the preliminary examination. 4 Finally, prompt arraignment affords the arrestee an opportunity to have his right to liberty on bail determined. 5
Since the aforementioned statutory right to prompt arraignment was violated by the reverse writ procedure, defendants' detentions were unlawful. 6 The next step is to determine whether Mallory's shoes, the results of the blood tests performed on them, and Howard's statement should have been suppressed. In the past, we have imposed the exclusionary rule as the appropriate remedy whenever a statutorily unlawful detention has been employed as a tool to extract a statement. See, People v. White, 392 Mich. 404, 424, 221 N.W.2d 357 (1974), cert. den. sub nom. Michigan v. White, 420 U.S. 912, 95 S.Ct. 835, 42 L.Ed.2d 843 (1975), and the authorities cited therein. These statements are excluded, even if they were given voluntarily, because they might never have been made by the detainee but for the illegal prearraignment delay. Physical evidence, in contrast, often exists regardless of the length of the prearraignment delay. However, if the primary purpose of the White exclusionary rule is to deter police misconduct in obtaining evidence against a detainee, the nature of the evidence which is impermissibly obtained should not be determinative. If the physical evidence would not have been discovered but for the exploitation by the police of the illegal prearraignment delay, suppression is required.
We therefore hold that the White exclusionary rule shall be applied whenever a statutorily unlawful detention has been employed as a tool to directly procure any type of evidence from a detainee. See People v. McCoy, 29 Mich.App. 589, 591-592, 185 N.W.2d 588 (1971). Moreover, the exclusionary rule will bar any other evidence which would not have been discovered but for that direct procurement.
Obviously, not all evidence acquired directly or indirectly from a detainee during a statutorily unlawful detention will be procured by exploiting that detention,...
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