People v. Price

• Decision Date: 31 March 1982
• Docket Number: Docket No. 48122
• Citation: 317 N.W.2d 249,112 Mich.App. 791
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Bryant PRICE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 249

317 N.W.2d 249

112 Mich.App. 791

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Bryant PRICE, Defendant-Appellant.

Docket No. 48122.

Court of Appeals of Michigan.

Submitted Oct. 13, 1981.

Decided Feb. 2, 1982.

Released for Publication March 31, 1982.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, Asst. Pros. Atty., and Larry L. Roberts, Asst. Pros. Atty., for the People.

Lander C. McLoyd, Asst. State Appellate Defender, Detroit, for defendant-appellant.

Before KAUFMAN, P. J., and J. H. GILLIS and CYNAR, JJ.

J. H. GILLIS, Judge.

Defendant was charged with Count I, assault with intent to murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, Count II, first-degree criminal sexual conduct, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2), and Count III, breaking and entering with intent to commit criminal sexual conduct, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. On August 3, 1979, he was convicted by a jury of Count I, felonious assault, M.C.L. Sec. 750.82; M.S.A. Sec. 28.277, and Count II, first-degree criminal sexual conduct. He was acquitted of the charge in Count III. Defendant was sentenced to concurrent terms of 2 years and 8 months to 4 years imprisonment on the felonious assault conviction and 50 to 75 years imprisonment on the criminal sexual conduct conviction. He appeals as of right.

The charges against defendant arose out of the sexual assault of a 52-year-old mentally disabled woman. The complainant testified that on August 6, 1978, she was alone in the Lincoln Park apartment which she shared with her daughter. At approximately 3 a. m., she was awakened by a man on top of her. The man severely beat her, forced her to have sexual intercourse with him and choked her with a cord. Complainant eventually escaped to the kitchen where the man pursued her and knocked her to the floor. She lost consciousness and, when she came to, the man was gone.

Complainant's daughter testified that her mother was mentally disabled. When the daughter arrived at the apartment on the morning of the crime, she found her mother in a bruised and bloody condition. The police were called and complainant was taken to the hospital, where she received stitches above the eyebrow. Later, when complainant's daughter cleaned up the apartment, she discovered a kitchen knife under the mattress of her mother's bed. A thumbprint found on the knife was subsequently identified as that of the defendant.

Complainant was able to describe her assailant only as a small, young black man. A few days after the assault, she viewed some photographs at the police station. According to her own trial testimony, she was unable to identify any photograph as that of her assailant. However, her daughter and a police officer both testified that complainant did identify a photograph of defendant as the man who assaulted her. At trial, complainant was also unable to identify defendant as the perpetrator.

A warrant was issued for defendant's arrest and, on November 24, 1978, defendant was arrested in Toledo in connection with another charge. Defendant was held by Ohio authorities until he was transported to Lincoln Park on January 11, 1979. The following day, defendant was questioned by Lincoln Park police and gave a written statement implicating himself in the assault on complainant. Defendant was not arraigned until after he gave the statement.

Defense counsel moved to suppress evidence of the photographic identification and the written statement given to the police. Following Wade ¹ and Walker ² hearings, the trial court denied the motions and the evidence was admitted at trial.

Defendant raises four issues for our consideration. Further facts will be cited where relevant to our discussion of those issues.

I. DID THE TRIAL COURT ERR IN FINDING DEFENDANT'S WRITTEN STATEMENT VOLUNTARY AND ADMISSIBLE?

Defendant argues that the police improperly delayed the arraignment in order to extract a confession from him.

M.C.L. Sec. 764.26; M.S.A. Sec. 28.885 prohibits unnecessary delay between arrest and arraignment. However, the statute does not require immediate arraignment of a defendant. People v. Ewing (On Remand), 102 Mich.App. 81, 85, 300 N.W.2d 742 (1980). An incriminating statement made during prearraignment detention should not be excluded unless the delay was used as a tool to extract a confession. Ewing (On Remand), supra, People v. Johnson, 85 Mich.App. 247, 271 N.W.2d 177 (1978).

The Walker hearing testimony established that on January 11, 1979, Sergeant Robert Paul, who was the officer in charge of the case, and Detective Ernest Kazensky transported defendant from Toledo to the Lincoln Park police station, where they arrived at approximately 6 p. m. Shortly after noon, on January 12, 1979, Sergeant Paul and Detective Kazensky took defendant from his cellblock to an interview room. Defendant was read his Miranda ³ rights and he stated that he understood them and signed the rights form. Defendant then made certain incriminating statements and, after approximately 1/2 hour to 1 hour of questioning, he wrote and signed a statement implicating himself in the crime. ⁴ Defendant was arraigned later that afternoon.

Sergeant Paul testified at the Walker hearing that his shift did not begin until 1 p. m. on January 12, 1979, and that he had instructed the morning shift not to have defendant arraigned because, as was his customary practice, he wanted to personally take defendant to the arraignment proceeding. ⁵ Sergeant Paul also testified that he delayed the arraignment in order to inform defendant of the evidence against him and to question defendant and allow him the opportunity to make a statement.

The delay between arrest and arraignment was less than 24 hours, most of which occurred during the night hours when arraignment would have been impossible. Upon a careful review of the record, we conclude that the delay was neither unreasonable nor occasioned solely for the purpose of coercing a confession. See People v. Joyner, 93 Mich.App. 554, 559, 287 N.W.2d 286 (1979), Johnson, supra.

Defendant also contends that, even if the delay was not improper, the statement was involuntary. The purpose of a Walker hearing is to determine the voluntariness of a defendant's statement. Some of the relevant factors to be considered in this determination are: (1) the duration and conditions of detention, (2) the attitude of the police toward the accused, (3) the physical and mental state of the accused, and (4) the diverse pressures which sap or sustain the accused's power of resistance or self-control. People v. Anglin, 111 Mich.App. ---, 314 N.W.2d 581 (1981), People v. Allen, 8 Mich.App. 408, 412, 154 N.W.2d 570 (1967).

This Court is required to examine the record and make an independent decision when reviewing a trial court's determination of voluntariness. People v. Robinson, 386 Mich. 551, 194 N.W.2d 709 (1972); People v. Johnson, 99 Mich.App. 547, 297 N.W.2d 713 (1980). However, where the evidence is conflicting and the determination of voluntariness is largely dependent on the credibility of witnesses, the appellate court should defer to the trial court's findings. Anglin, supra, Joyner, supra, 93 Mich.App. 558, 287 N.W.2d 286. Reversal is required only where the trial court's finding is clearly erroneous. Anglin, supra, Johnson, supra, 99 Mich.App. 556, 297 N.W.2d 713.

In the present case, defendant was advised of, and waived, his Miranda rights. Sergeant Paul and Detective Kazensky informed defendant of the charges and evidence against him and also informed him of unrelated charges pending in other cities. The record of the officer's Walker hearing testimony reveals that no threats or promises were made and no improper coercive tactics were used.

Defendant testified at the Walker hearing that he had been taking valium at the Toledo jail and had received no valium on January 12, 1979. At the time he was questioned he was nervous and scared and had a headache which he attributed to his inability to get valium. According to his testimony, the officers told him that if he would "help" them, they would help him in solving the cases. Defendant understood this to mean that they would assist him in resolving the other pending charges. Defendant also testified that the officers stated that if he did not cooperate they would see that he received a sentence of life imprisonment.

Although the testimony was contradictory, the trial judge had the opportunity to listen to and view the witnesses and was in the best position to judge their credibility. After carefully reviewing the Walker hearing testimony, we hold that the trial court did not err in finding the statement voluntary and admissible.

II. WAS THE DEFENDANT DENIED DUE PROCESS AND THE RIGHT TO PRESENT A DEFENSE BECAUSE THE TRIAL COURT PRECLUDED HIM FROM CROSS-EXAMINING A WITNESS REGARDING THE POLICE FAILURE TO CONDUCT BLOOD-TYPING TESTS AND FROM ARGUING THAT THE POLICE DELIBERATELY REFUSED TO CONDUCT SUCH TESTS?

During defense counsel's cross-examination of Sergeant Paul, it was established that blood-typing tests had not been performed on the bloodstains found at the scene of the crime. Defense counsel then sought to explore the matter further by asking the witness if he knew that such tests were possible and why they had not been performed in this case. The people objected and the trial court ruled that any further evidence regarding the police failure to perform a blood analysis would be speculative and irrelevant. ⁶

Defendant maintains that the police and prosecution were under an affirmative duty to preserve the evidence and to test it to determine whether defendant was excluded from the group of possible donors, thereby conclusively proving his innocence. We disagree.

Where the police do conduct blood-typing tests, they must make the results available to defendant upon request...