People v. Marsh

• Decision Date: 02 December 1968
• Docket Number: Docket No. 2844,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred MARSH, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 853

165 N.W.2d 853

14 Mich.App. 518

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred MARSH, Defendant-Appellant.

Docket No. 2844.

Court of Appeals of Michigan, Division No. 2.

Dec. 2, 1968.

Released for Publication March 27, 1969.

J. C. Beardsley, Beardsley, Conklin & Forsthoefel, Tecumseh, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Harvey A. Koselka, Pros. Atty., Lenawee County, Adrian, for appellee.

Before T. G. KAVANAGH, P.J., and LEVIN and SULLIVAN, ^* JJ.

LEVIN, Judge.

In 1941, Fred Marsh was convicted of first degree murder following his plea of guilty. In 1966, the circuit judge granted Marsh a new trial because of deficiencies in his 1941 conviction. Prior to the new trial, on the authority of Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the judge suppressed a written statement given by Marsh in 1941 to the prosecuting attorney.

At the new trial Marsh testified. He did not deny killing Herman Berger. The question for jury decision was whether the defendant was guilty of first or second degree murder, manslaughter or not guilty. The jury's verdict was first degree murder.

Marsh claims that the circuit judge erred in allowing, for the purpose of impeachment, questions to be put to him and testimony concerning the suppressed 1941 written statement given the prosecutor and oral statements allegedly made by Marsh to police officers shortly after he was apprehended.

At the time of the crime Marsh was 22 years old, a 5th grade drop-out, a wellknown waif with no settled residence, living in a relatively small town. He slept wherever a bed might be offered him. For a living he did 'odd jobs' about town and was employed by, among others, Chaloner's store, of which Berger was manager.

Marsh testified at trial that on the night of the crime he went to Berger's apartment to request a place to sleep for the night, that after a few moments conversation and refusal of the request Berger 'started calling me (Marsh) thieves. Jumped up from the chair and pushed me, got in a struggle.' Defendant remembered struggling with Berger and tying Berger's tie around his neck. Evidence showed Berger's death was caused by severance of a nerve, which in turn resulted from a ruler being pushed down his throat. A bottle of ink was poured into Berger's mouth, but that was not the cause of death.

Marsh claims that after the struggle Berger became quiet, ceased calling him 'names,' he became frightened, saw Berger's wallet and key chain on a nearby desk (from which the ruler and ink were taken) and ran with these.

On the Key chain was the Chaloner's store key, which defendant used to enter the store. There he took from the unlocked store safe some $200 and American Express receipts. The receipts were thrown away. Three cash registers containing money were untouched. Later that night Marsh left town by taxi for Toledo, Ohio. He was apprehended by police on a bus in Pennsylvania and brought back to Lenawee county for trial.

On the trip from Pennsylvania to Michigan statements concerning the killing were allegedly made by Marsh to the accompanying officers. When Marsh reached Michigan he gave the written statement, suppressed in 1966, to the assistant prosecuting attorney, was arraigned, pleaded guilty, was examined by a sanity commission and convicted of first degree murder and sentenced to life imprisonment.

At the 1966 trial Marsh testified on direct examination:

'Q Now, have you ever stated, admitted anything of the sort that you intended to rob Chaloner's store or to rob Mr. Berger?

'A No, sir, I never made such a statement.

'Q Did you intend to do so?

'A No, sir.

'Q Did you intend to kill Herman?

'A No, sir.

'Q Did you intend to kill Herman, even during the struggle?

'A No, sir.'

Over objection the circuit judge allowed the prosecutor to question Marsh on cross-examination concerning the 1941 written and oral statements for the purpose of impeaching Marsh's testimony that he did not intend to kill or rob Berger and had never admitted to anyone he did. Also over objection, the prosecutor was allowed to question one of the officers who escorted Marsh from Pennsylvania concerning oral statements allegedly made during that journey. The circuit judge gave three reasons for his rulings: (1) the statements were 'proper, legal rebuttal' to defendant's direct testimony that he did not go to Berger's apartment to rob and that he told no one he did, (2) the statements, though inadmissible in chief, were 'voluntary' because not 'coerced' in the traditional sense, and (3) by questioning defendant on direct examination about the statements, defense counsel 'lifted the lid * * * and opened the door' to their use as means of impeachment.

I.

In Johnson v. New Jersey (1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, the United States Supreme Court held Miranda applicable only to trials beginning after the Miranda decision date, June 13, 1966. Marsh was originally convicted 25 years prior to Miranda. The trial which resulted in the conviction from which he appeals followed Miranda.

Neither at trial nor on this appeal have the people contended that Miranda is inapplicable in a case such as this where the defendant was originally convicted prior to Miranda and newly tried ¹ after Miranda. Accordingly, that question is not before us and is not decided. ² We intimate no opinion thereon. We defer consideration of that question to a case where it has been properly raised and briefed. Resolution of that question would require thorough exploration of the policies involved in retrospectivity-prospectivity, ³ and the problem of possible decisional conflict between State and Federal courts within the State. ⁴

We note that this Court has held the prospective decision of People v. Hamilton (1960), 359 Mich. 410, 102 N.W.2d 738, applicable to a retrial where the original trial occurred before Hamilton but a new trial was granted on grounds other than Hamilton. People v. Besonen (1966), 4 Mich.App. 131, 139, 144 N.W.2d 653.

The failure of the people to challenge Miranda's applicability on this appeal precludes ⁵ the issue from being raised at the time of the new trial herein ordered and makes it unnecessary on this appeal to consider the significance of failure to give the Miranda required warnings where the question is one of voluntariness in the traditional sense in a case governed by Pre-Miranda law. ⁶

Nor do the people assert that the accused's oral statements are governed by a rule different from that applicable to the written statement. ⁷ For the purposes of this opinion we proceed on the assumption that the 1941 confession, as the trial judge found, is inadmissible.

II.

Prior to Miranda the majority rule was that an 'involuntary or not properly qualified confession may not be used to impeach an accused person who takes the witness stand in his own behalf.' For decisions supporting and opposing that view, see Annotation, Impeachment of accused as witness by use of involuntary or not properly qualified confession, 89 A.L.R.2d 478, 479. ⁸ The decisions discussed in that annotation were decided prior to Malloy v. Hogan (1964), 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, which held the Fifth Amendment applies to the States via the Fourteenth Amendment, and Federal standards govern its application. See In re Colacasides (1967), 379 Mich. 69, 84, 150 N.W.2d 1.

In 1925, the United States Supreme Court held that use of illegally seized, and therefore inadmissible, evidence (cocaine) to impeach the defendant was a violation of his Fifth Amendment right not to be compelled to incriminate himself. On cross-examination the defendant had denied he ever had seen the seized narcotics. The court ruled that the defendant 'did nothing to waive his constitutional protection or to justify cross-examination in respect of the evidence claimed to have been obtained by in search.' Agnello v. United States (1925), 269 U.S. 20, 35, 46 S.Ct. 4, 7, 70 L.Ed. 145.

An exception to the exclusionary rule was recognized in Walder v. United States (1954), 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503. Defendant was on trial for illicit transactions in narcotics under a 1952 indictment. He testified on direct examination, 'I have never sold any narcotics to anyone in my life,' and that he had never possessed narcotics. The court held the introduction of evidence illegally seized in 1950 for impeachment permissible because 'the defendant went beyond a mere denial of complicity in the crimes * * * and made the sweeping claim that he had never dealt in or possessed any narcotics.' (p. 65, 74 S.Ct. p. 356)

The court emphasized that the 1950 illegal evidence did not relate to proof of defendant's guilt under the 1952 indictment and that it was in answer to a 'sweeping claim' by defendant over and beyond the denial of the criminal elements:

'Of course, the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief.' (p. 65, 74 S.Ct. p. 356) (Emphasis supplied.)

The Walder exception has been consistently limited to impeachment concerning matters which do no bear on defendant's innocence or guilt, matters unrelated to the criminal elements under the indictment. ⁹ The United States Court of Appeals for the District of Columbia recently summarized the Post-Walder law:

'Since then (Walder), we have held that an inadmissible statement can be used only when the defendant makes 'sweeping claims' that go far beyond the crime charged, (White v. United States (1965), 121 U.S.App.D.C. 287, 290, 349 F.2d 965, 968) is impeached on a statement relating to 'lawful proper acts' (Tate v. United States (1960), 109 U.S.App.D.C. 13, 16, 283...