People v. McGillen

• Decision Date: 02 August 1974
• Docket Number: No. 1,M,1
• Citation: 220 N.W.2d 677,392 Mich. 251
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William P. McGILLEN, #1, Defendant-Appellant. arch Term 1974. 392 Mich. 251, 220 N.W.2d 677
• Court: Michigan Supreme Court

Page 677

220 N.W.2d 677

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William P. McGILLEN, #1, Defendant-Appellant.

No. 1, March Term 1974.

392 Mich. 251, 220 N.W.2d 677

Supreme Court of Michigan.

Aug. 2, 1974.

Eugene Penzien, Bay County Pros. Atty., Pros. Attys., Appellate Service, Donald P. Ubell, Director, by Howard C. Marderosian, Sp. Asst. Atty. Gen., Lansing, for plaintiff-appellee.

Jerome F. O'Rourke, Elint, for defendant-appellant; Carl H. Leiter, Flint, of counsel.

Before the Entire Bench.

T. M. KAVANAGH, Chief Justice.

Defendant is over 60 years of age. It is alleged that on two separate occasions, May 23, 1970 and May 31, 1970, he raped ¹ his 15 year old daughter, Barbara Jean McGillen.

He was first tried and convicted of the May 31, 1970 offense by a jury. Subsequently, a different jury also found him guilty of the May 23, 1970 offense. Defendant separately appealed both convictions.

On its own motion, the Court of Appeals consolidated both cases for hearing on the merits. They subsequently affirmed both convictions in an unpublished opinion, Docket No's. 11802, 13077, July 27, 1972. This Court granted leave to appeal in both cases, 388 Mich. 801 (1972), and they were jointly briefed and argued. To properly identify and discuss the different issues raised in each case, this Court will rule on each case by separate opinion. The following will deal with the defendant's first conviction, based on the May 31, 1970 offense.

ISSUE I

During the trial of this case, the prosecution put on the stand the arresting officer. The officer sought to testify as to statements made by the defendant at the time of his arrest. A Walker ² hearing was held by the trial judge and the statements given by the defendant were ruled to have been voluntary. The defendant challenges this finding.

As this Court stated in People v. Robinson, 386 Mich. 551, 557, 194 N.W.2d 709, 710 (1972), 'the sole purpose of the Walker hearing is to determine the fact of voluntariness and a reviewing court is concerned only with the correctness of that determination. . . . 'On this appeal we are required to "examine the entire record and make an independent determination of the ultimate issue of voluntariness."

If after such a review we do not possess a definite and firm conviction that a mistake was committed by the trial judge in his ruling, we will affirm that ruling. People v. Hummel, 19 Mich.App. 266, 172 N.W.2d 550 (1969).

The Walker hearing in this case was held on February 19, 1971. At that time the arresting officer testified that he first learned of this alleged incident on the morning of June 6, 1970. At approximately 8:00 that morning, he received two telephone calls, the first from Mr. Porsche, the family with whom the prosecutrix was staying at the time, and the second from the wife of the defendant. Both requested that he come out to the Porsche residence. He also testified this was his first dealing with this case. ³

The officer then stated that when he arrived at the Porsche residence he spoke briefly with Mr. Porsche. ⁴ He then had the defendant enter his car at which time he read to the defendant his Miranda ⁵ rights from a printed card. He then testified that the defendant agreed to waive these rights, and upon questioning the following dialogue took place.

'Q. What questions did you ask about this incident?

'A. I asked direct questions--whether or not he had sexual intercourse with his daughter Barbara and his answer to that was--no.

'Q. Did you ask him anything else?

'A. I asked if he attempted to have sexual intercourse with Barbara and his answer to that was no also.

'Q. Did you ask him anything else?

'A. Then I asked if he had done anything at all with his daughter Barbara that might be considered indecent and he made the statement he was trying to help her so she would be ready when she started dating boys.'

The officer then testified that he spoke briefly with Barbara McGillen and later her mother. He then placed the defendant under arrest and proceeded to drive the 17--18 miles to the State Police Post. Shortly after leaving the Porsche residence, the officer stated that the defendant told him he wanted an attorney. The officer also testified as follows:

'Q. You never discussed anything about this case after he told you he wanted to call me or an attorney?

'A. I may have asked him questions knowing I would not he able to use the answers.

'Q. But from the answers you could lead to other things?

'A. It might.

'Q. Even if you could not use the answers, is this correct?

'A. It is theoretically possible.

'Q. Not theoretically possible, it is very possible if you ask the questions and know you could not repeat the answers to that question, it could lead to something else.

'A. It could--yes.

'Q. In spite of the fact he said he wanted to speak to an attorney, you continued questioning him, is that correct?

'A. I am sure I must have asked him questions, some questions about the matter. * * *

'Q. Were any questions asked him at the State Police Post in Bay City?

'A. I probably asked him more questions there, yes.

'Q. You asked him more questions there?

'A. Yes.

'Q. What questions did you ask him there?

'A. I don't recall exactly. He had indicated he had an attorney, he had in fact, called you upon our arrival at the post.

'Q. What questions did you ask him while at the post?

'A. I don't recall.

'Q. Did you ask him any questions about this incident at the post?

'A. I probably did--yes.

'Q. But you don't know what they were?

'A. They would have been of a general nature.

'Q. You don't know what they were?

'A. No.'

The defendant did not testify during the first Walker hearing. At the second Walker hearing he gave the following version of the arrest and questioning.

Defendant states that when the officer arrived he spoke briefly to himself and Mr. Porsche. Neither conversation was about the alleged incidents. The officer spoke with Barbara and Mrs. McGillen, then called him over to the car and placed him under arrest. Defendant then testified:

'Q. Where were you when he asked you whether or not you ever had intercourse with your daughter Barbara?

'A. We was on the road, started down the road.

'Q. Where were you when he asked any of the questions?

'A. About Barbara Jean--we was on the road.

'Q. Where were you when he first told you of your right to have an attorney?

'A. On the road--he looked for the card in the yard and did not have one, he looked around the car, got in the car and started talking about the rights--you can have an attorney appointed.

'Q. You were aware of that at Porsche's or on the road?

'A. On the road.

'Q. Where were you when you told him about you were taking Barbara to dances and to various places so she would get acquainted and get ready for dating boys?

'A. On the road.'

The defendant further testified that he did not understand what the officer said and did not know if he had to answer these questions. He further testified:

'Q. Did you ever make a statement to him, in answer to any question, that you were only trying to help her?

'A. Not the way he told it in court. He told it in court that I admitted having intercourse with her and I never done no such thing, I told him. We was--he was talking all the way bribing me all the way down about laying blocks and asking what I was doing, how many blocks can you lay and I told him I have laid 700 after dinner. He said, I am a block layer, a much bigger man than you are. He said, I can't do it. I did not tell him, he ain't got the move to lay blocks, but I didn't. I said, we had taken her out twice a week, Marie and I had taken her out to a fish supper and dance once a week over a year, to have her meet people, the young generation, so she would be ready to meet the people and the boys.

'Q. Is--this is what you told him?

'A. That's right.'

When questioned about the exact nature of the response given by the defendant to the third incriminating question, the officer testified at the first Walker hearing as follows:

'Q. That was his only reply to that question?

'A. Yes.

'Q. You never asked him any other questions regarding this after that?

'A. I am sure I asked those three key questions several times and I always got the same answer.

'Q. You always got the same answer?

'A. Yes.'

However, on this crucial point, the officer's testimony at the second Walker hearing again changes to the following:

'Q. You merely asked and got an answer to that question of what?

'A. It wasn't a direct answer--he said, he was trying to help her.

'Q. Not a direct answer--he was trying to help, in what way?

'A. So she would be ready when she started dating boys.

'Q. Did you ask what he meant by that question--that answer?

'A. I believe I did.

'Q. What did he say he meant by it?

'Q. I don't recall if he explained exactly what he meant by it.

'Q. Did you ask any further questions?

'A. I asked a lot of questions--I asked him quite a number of questions.'

The law in this state was expressed by the United States Supreme Court in Miranda, supra, 384 U.S. pp. 473--475, 86 S.Ct. p. 1627:

'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. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If...