People v. Mann

• Decision Date: 24 September 1973
• Docket Number: Docket No. 15440,No. 3,3
• Citation: 49 Mich.App. 454,212 N.W.2d 282
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert MANN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 282

212 N.W.2d 282

49 Mich.App. 454

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert MANN, Defendant-Appellant.

Docket No. 15440.

Court of Appeals of Michigan, Division No. 3.

Sept. 24, 1973.

Released for Publication Nov. 27, 1973.

James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.

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

Before R. B. BURNS, P.J., and FITZGERALD and O'HARA,* JJ.

FITZGERALD, Judge.

Defendant was convicted by a jury of uttering and publishing ¹ and was sentenced to a prison term of 7 to 14 years. He appeals as of right.

On May 4, 1972, Officers Yeakel and Farr of the Kalamazoo Township Police Department responded to a call from a Town & Country Market store clerk advising them that he had honored a personal check which he suspected to be forged. Defendant fled upon the arrival of the police and a foot-chase ensued. As Officer Yeakel gained ground, the defendant stopped, turned around and held a straight razor over his head. Yeakel drew his weapon and defendant dropped the razor. Defendant was arrested and advised of his Miranda ² rights, electing to remain silent when asked his name, address and age.

He was then taken to the police station and advised of his Miranda rights a second time, again refusing to divulge his name. Officer Farr testified that defendant appeared fidgety and somewhat dazed. He had 'watery eyes, he was sniffing, his nose was running, (and) he was nervous'. Officer Yeakel then asked if he was a heroin addict and he admitted that he was. When asked if he was suffering from withdrawal symptoms, defendant answered affirmatively. Defendant indicated his last heroin injection had occurred approximately 12 hours earlier. Officer Yeakel then offered to obtain emthadone for defendant, telephoned a local hospital, and arranged to present defendant for treatment within 30 minutes to an hour. The record indicates that 40 minutes to an hour and a half elapsed before defendant was taken to the hospital. During this period defendant was told that a source of methadone had been located. He was then given his Miranda rights for a third time. Defendant stated he knew each of the rights explained to him and agreed to answer questions, making several damaging admissions. He admitted to obtaining the check from someone other than the indicated drawer and cashing the check at the Town & Country Market. No written record of defendant's waiver of Miranda rights, nor of any questions, answers or statements by defendant were made at that time. Following these admissions, defendant was taken to the hospital where a methadone shot was administered. Subsequently, he was jailed.

At a Walker hearing held June 1, 1972, the judge concluded that defendant's statements were voluntarily made. The court indicated that it was proper for the officers to procure methadone for defendant, and found no irregularities in the interrogations made prior to their departure from the station house.

At trial, Mary Stockwell testified that bank checks belonging to her were forcibly taken a few days prior to defendant's arrest. The check was written against her account, but she was not the maker, nor was any party authorized to write checks on her behalf.

Officer Farr testified that he made notes of defendant's responses and statements some four hours following the interrogation. He also stated that 13 days following the interrogation, he had prepared a summary of defendant's oral statements, excerpts of which were read to the jury over defense counsel's objection. Officer Farr refreshed his memory prior to trial by reviewing the notes he made shortly after the interrogation along with reports prepared by other officers. At that point, defendant's motion for a directed verdict on the ground that the prosecution had failed to establish defendant's intent to defraud was denied.

The defense consisted solely of defendant's own testimony. He stated he overheard a man attempting to cash the check in question by using defendant's name. Defendant grabbed the check, verified the fact that he was the payee, and later presented the check to the Town & Country Market. The storekeeper excused himself in order to purportedly determine the check's validity and phoned the police. Upon the arrival of Officers Farr and Yeakel, defendant fled. A chase ensued resulting in defendant's eventual apprehension.

We first decide whether damaging admissions made by defendant in response to police interrogations are admissible where defendant remained completely silent when asked on two prior occasions to identify himself. We must further determine the effect of the police officers' offer of methadone treatment to counteract heroin withdrawal symptoms upon the voluntariness of defendant's admissions. Defendant maintains it was improper for the police to disregard his desire to remain silent by continuing to interrogate him. He argues that repeated requests that an in-custody defendant answer questions is inherently compulsive and violates his constitutional right against self-incrimination. The people contend that defendant was interrogated only once, and during that time defendant indicated that he understood all the rights that were given him and voluntarily agreed to answer questions posed by the interrogating officers.

Miranda v. Arizona, 384 U.S. 436, 444--445, 473--474, 86 S.Ct. 1602, 1612, 1627--1628, 16 L.Ed.2d 694, 707, 723, 10 A.L.R.3d 974, 993, 1011 (1966), sets forth the proper interrogation procedures to be followed:

'If (the accused) indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.

'Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.'

Defendant remained absolutely silent when asked his name, address, and age at the time of his arrest and later at the police station. We do not agree with the people's contention that asking defendant to reveal his name, address and age does not constitute an interrogation. The general nature of the inquiries does not reduce them to a perfunctory status to which a response is expected. It constitutes an interrogation nonetheless. Nor are we able to accept defendant's argument that by remaining silent when asked to disclose this basic information, he invoked his privilege against self-incrimination. While absolute silence may be argued as being an emphastic expression of defendant's right to remain silent, no assurance is given that defendant was aware of this right. The two attempts to identify the defendant by asking his name, address and age were not designed to intimidate or badger defendant, nor can his silence be presumed to communicate his right to remain silent. The first indication that defendant understood his rights was an affirmative response to the question, 'Do you know each of these rights I have explained to you?', after which he agreed to answer some questions. Thus, no significance can be attached to the two prior occasions upon which the identity of defendant was sought.

In People v. King, 34 Mich.App. 275, 191 N.W.2d 80 (1971), a conviction was sustained where defendant responded to questions regarding his involvement in a breaking and entering. Defendant initially indicated he did not wish to discuss the matter, but later he voluntarily relinquished his silence by providing the police with his name and other information, believing that this evidence would eventually be discovered by the police. This evidence, together with a signed confession, was admissible at trial, the majority holding that defendant was not a victim of trickery, coercion, maltreatment, or long detention. In the instant case, defendant's damaging statements were responses to questions rather than volunteered admissions. This distinction is of little significance in view of the Court's statement at 279, 191 N.W.2d at 81:

'As I read Miranda, it prohibits the admission of neither volunteered information nor that given pursuant to an understanding and ingelligent waiver.'

Defendant's affirmative response that he understood the rights given him on its face constitutes a waiver of his right against self-incrimination. Whether this waiver was understandingly...