People v. Olson

• Decision Date: 08 December 1975
• Docket Number: Docket No. 23032
• Citation: 66 Mich.App. 197,238 N.W.2d 579
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ano Harold OLSON, Jr., Defendant-Appellant. 66 Mich.App. 197, 238 N.W.2d 579
• Court: Court of Appeal of Michigan — District of US

Page 579

238 N.W.2d 579

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ano Harold OLSON, Jr., Defendant-Appellant.

Docket No. 23032.

66 Mich.App. 197, 238 N.W.2d 579

Court of Appeals of Michigan.

Dec. 8, 1975.

Released for Publication Feb. 26, 1976.

[66 MICHAPP 198] Hartman, Beier, Howlett, McConnell & Googasian by George A. Googasian, Bloomfield Hills, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.

Before QUINN, P.J., and R. B. BURNS and D. E. HOLBROOK, Jr., JJ.

PER CURIAM.

Defendant was charged with first-degree murder in the death of his wife. M.C.L.A. § 750.316; M.S.A. § 28.548. On October 23, 1974, a jury convicted him of second-degree murder. M.C.L.A. § 750.317; M.S.A. § 28.549. He was sentenced to 10 to 20 years in prison. Following a denial of a motion for a new trial, defendant appeals as of right.

During the jury's deliberations the trial judge entered the jury room to talk to the jury. In denying defendant's motion for a new trial the trial judge set forth an explanation of what happened in the jury room. 'The fact is, nothing was discussed in the jury room except the time when the jury would recess and resume, which, of course, are subjects within the Court's sole discretion.' However, this is error.

In Zaitzeff v. Raschke, 387 Mich. 577, 579, 198 N.W.2d 309, 310 (1972), Justice Black, speaking for the Court, said:

'With what was written so plainly in 1961 for Wilson v. Hartley, 365 Mich. 188, 112 N.W.2d 567, concerning [66 MICHAPP 199] the indefensible practice of entering the jury room while the jurors are there, no matter by whom done, one would think that this Court had said enough to prevent what took place here. Yet the practice seems to go on, and on, and on, encouraged occasionally by 'no prejudice shown' conclusions of a group of Justices who cannot hope to know what was said, or done, or gestured, or hinted, in the sanctity of the jury room.'

Two months later in People v. Heard, 388 Mich. 182, 184, 200 N.W.2d 73, 74 (1972), the Court said 'The facts in this case provide an even more compelling reason for preventing this type of action. In Zaitzeff, counsel for both parties agreed that they did not need to be present when the jury returned its verdict (p. 580 (198 N.W.2d 309)). In a sense, they acquiesced to the action of the trial court, which we found to be reversible error. In the instant case, defense counsel strenuously objected, and neither counsel, nor the jury, had requested that the judge bring in these exhibits. On this issue the judgments of the Court of Appeals and of the trial court should be reversed.'

Both Zaitzeff v. Raschke, supra, and People v. Heard, supra, make it clear that the defendant does not have to show prejudice when the trial judge enters the jury room. As Justice Black noted, there is no opportunity for the defendant to prove prejudice since he does not have an 'invisible witness' present in the jury room. Intra-Court memorandum of Black, J., Quoted in Zaitzeff v. Raschke, supra, 387 Mich. at 581--582, 198 N.W.2d 309 (T. E. Brennan, J., dissenting). Errors of this type can easily be avoided by simply requiring the jury to return to the courtroom for any discussion with the trial court. In this way all the parties will know whatever discourse took place.

Since this case must be remanded for new proceedings, we will address ourselves to the one [66 MICHAPP 200] point raised in the defendant's brief that merits discussion and is likely to occur if there is a new trial. Following a Walker ¹ hearing the trial court ruled that certain statements taken in violation of defendant's Miranda ² rights were admissible for impeachment purposes. ³ Statements taken in violation of Miranda are only admissible for impeachment purposes if they are trustworthy. Harris v. New York, 401 U.S. 222, 224, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). The Michigan Supreme Court has stated that an involuntary confession is inherently untrustworthy. People v. Reed, 393 Mich. 342, 355--356, 224 N.W.2d 867 (1975).

Unlike the trial court in People v. Reed, supra, the trial court in this case specifically stated that the defendant's statements were excluded from the prosecution's case in chief because of a violation of Miranda and not because the statements were involuntary. In reviewing the results of a Walker hearing this Court reviews the entire record of the hearing and makes an independent decision, but we give great deference to the findings of the trial court since it is in a much better position to evaluate the credibility of various witnesses. People v. Hummel, 19 Mich.App. 266, 268--270, 172 N.W.2d 550 (1969), Lv. den., 383 Mich. 793 (1970); Accord, People v. Bradley, 54 Mich.App. 89, 97--98, 220 N.W.2d 305 (1974).

After reviewing the record of the Walker hearing that lasted four days, we are unable to find any evidence that the defendant was physically coerced into making the inculpatory statements. [66 MICHAPP 201] There is no indication that the defendant was subjected to physical force, threats or restraints. Nor is there any indication that the...