People v. Robinson

• Decision Date: 11 October 1977
• Docket Number: Docket No. 29608
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eddie ROBINSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 544

261 N.W.2d 544

79 Mich.App. 145

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eddie ROBINSON, Defendant-Appellant.

Docket No. 29608.

Court of Appeals of Michigan.

Oct. 11, 1977.

Released for Publication Jan. 13, 1978.

Isackson & Neering, P. C., by Frank M. Quinn, Bay City, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Eugene G. Penzien, Pros. Atty., for plaintiff-appellee.

Before WALSH, P. J., and QUINN and STAIR, ^* JJ.

PER CURIAM.

On October 31, 1975, defendant was convicted of assault with intent to do great bodily harm less than murder ¹ following a jury trial in Bay County Circuit Court. He was sentenced on November 24, 1975, to a prison term of 3 to 10 years and now appeals.

At 9 p. m. on September 2, 1975, defendant, James Baker, Florence Turner and others began drinking alcoholic beverages at defendant's house on Grant Street in Bay City, Michigan. Defendant and Baker had been friends for 14 years. Defendant was the "common-law" husband of Florence Turner, who was Baker's mother. All three individuals lived at the residence.

Around 11:30 p. m., Baker left the house and purchased a pint which, upon his return, he and the defendant consumed in the kitchen while the rest of those present slept. Two additional pints were purchased during the night.

After defendant and Baker returned from purchasing the third pint at approximately 7 a. m., John McLemore, a mutual friend, arrived for a visit. Shortly afterward, defendant and Baker began arguing over Baker's relationship with his mother. As the disagreement escalated, Baker arose twice from his chair at the kitchen table and gestured or moved toward defendant in a threatening fashion. The second time Baker stated, "I'll slaughter you". Defendant drew a .22-caliber pistol and fired a single shot which hit Baker in the left thigh.

Immediately after the shooting defendant had an overnight guest, Quincy Flinnon, drive him downtown. Defendant was arrested for the assault at approximately 1:30 p. m.

On appeal, defendant argues that the lower court erred in permitting the prosecution to (1) admit a statement obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), and (2) introduce a confession which defendant contends was involuntarily given, and challenges (3) the lower court's instruction on self-defense, (4) the refusal of the court to give a requested instruction on the defense theory of the case, and (5) the court's decision to allow the use of an allegedly invalid prior conviction for impeachment purposes.

While this court agrees that error was committed by the trial court in admitting a statement obtained from defendant in the absence of the required warnings and in refusing the proposed instruction on the defense theory, we do not decide whether such errors, standing alone, require reversal. Upon an examination of the entire record, however, this court is convinced that defendant was not accorded a fair trial and his conviction must be reversed. People v. Strodder, 394 Mich. 193, 229 N.W.2d 318 (1975) (opinion of T. G. Kavanagh, C. J.), People v. Skowronski, 61 Mich.App. 71, 232 N.W.2d 306 (1975). Because the questions presented on appeal are likely to arise again on retrial, they will be addressed by this court.

ISSUES I and II

Defendant was arraigned on the charges arising from the shooting incident on October 14, 1975, and his trial commenced October 23. Immediately before trial began, defendant filed a motion in limine requesting that the prosecution be ordered to refrain from questioning witnesses as to statements or admissions made by the defendant. On the first day of trial, the motion was argued orally before the court. Defense counsel argued that the prosecutor should be required to lay a foundation as to the admissibility of such statements, including evidence that they were constitutionally obtained, prior to their introduction. The court ruled that defendant's motion was "a backhand motion for suppression of evidence" not properly before the court. The court further held that a mere request for suppression of the statements was insufficient to require a preliminary hearing on the matter.

During trial, Bay City Police Officer Eugene Van Allen, who had investigated the shooting immediately after its occurrence, testified that he observed the defendant at approximately 1:30 p. m. on Madison Street. The officer approached the defendant with his gun drawn, ordered the defendant to keep his hands in sight and checked the defendant for a weapon. Upon finding defendant unarmed, Van Allen put away his gun and questioned the defendant about the shooting. Defense counsel objected to any further testimony and was permitted to voir dire the witness.

In the officer's opinion defendant was not intoxicated when the officer questioned him. While Van Allen testified that he had not arrested the defendant when their conversation occurred, he admitted having taken "control" of the defendant.

Defense counsel objected to the admission of defendant's statement to Van Allen on the basis that defendant had not been advised of his constitutional rights. The prosecutor responded that the questioning was investigatory rather than custodial. The trial court ruled that since defendant was Officer Van Allen thereafter described his conversation with defendant:

not under arrest, but only in custody, his statement was admissible.

"I said, 'Did you shoot a guy?', and his response was he asked me, 'Is he dead?' I said, 'No, he's in the hospital.' At that time, Mr. Robinson stated to me, he says, 'Then what difference does it make?', and that was the last I talked to him."

After the discussion, Van Allen arrested the defendant and transported him to the police station where the officer advised defendant of his rights.

Following Van Allen's testimony Bay County Police Officer Ronald W. Remington took the stand and testified that he questioned Robinson while the defendant was being booked. Defense counsel moved that the officer be precluded from testifying to defendant's statement before showing that defendant had been advised of his rights and that defendant gave the statement voluntarily. The trial court ruled that the former should have been raised in a motion to suppress and that the latter was a question for the jury. ²

Officer Remington testified that defendant admitted shooting Baker and said that he had meant to shoot him in the leg. Defendant further stated, however, that he now wished that he had killed Baker.

Defense counsel renewed his objections to the admission of the statements in a motion for a new trial. During oral argument on the motion, the trial court granted defendant a Walker ³ hearing. At the conclusion of the hearing, the court ruled that the absence of Miranda warnings at the time of defendant's statement to Officer Van Allen rendered the statement inadmissible since defendant was then in custody. Because the fact that defendant shot Baker was never contested, however, the court ruled the error harmless. With regard to the second statement, the court was of the opinion that defendant had understood his rights and had voluntarily waived them.

Since defendant objected to the admission of his statements to Officers Van Allen and Remington at trial, and a Walker hearing has been held as to the voluntariness of the second statement, the issues raised by defendant have been properly preserved for appellate review. People v. Gould, 61 Mich.App. 614, 233 N.W.2d 109 (1975); People v. Qualls, 9 Mich.App. 689, 158 N.W.2d 60 (1968), cert. den. 393 U.S. 960, 89 S.Ct. 397, 21 L.Ed.2d 374 (1968). See, People v. Carroll, 396 Mich. 408, 240 N.W.2d 722 (1976). ⁴

In Michigan a person upon whom a criminal investigation has focused must be given Miranda warnings before any statements made in response to police interrogation will be admissible into evidence. People v. Reed, 393 Mich. 342, 224 N.W.2d 867 (1975), cert. den. 422 U.S. 1044, 1048, 95 S.Ct. 2660, 2665, 45 L.Ed.2d 696, 701 (1975); People v. Ridley, 396 Mich. 603, 242 N.W.2d 402 (1976). ⁵ In the present case, the prosecution In reviewing the lower court's finding that the statement given to Officer Remington was given voluntarily, this court must examine the entire record and make an independent determination of the issue. The ruling of the trial judge will not be reversed unless this court is convinced that a mistake was committed and the decision of the trial judge is clearly erroneous. People v. McGillen # 1, 392 Mich. 251, 220 N.W.2d 677 (1974); People v. Jones,73 Mich.App. 107, 251 N.W.2d 264 (1976); People v. Combs, 69 Mich.App. 711, 245 N.W.2d 338 (1976).

stipulated at the Walker hearing that the police investigation had focused on defendant at the time Officer Van Allen questioned Robinson. Defendant's original responses to Officer Van Allen, therefore, were inadmissible.

At the Walker hearing, Officer Remington testified that he assisted Officer Van Allen in bringing defendant into the station following his arrest. Van Allen advised defendant of his rights in Remington's presence. Defendant indicated that he understood his rights, that he did not wish to consult with an attorney and that he was willing to discuss the shooting. Between 10 and 20 minutes later, when defendant was being fingerprinted, Remington asked the defendant whether he had shot Baker and the conversation, earlier described at trial, occurred. Remington testified that at the time of the statement defendant was calm. No threats or coercion had been made or exerted to secure the statement. While the officer detected alcohol on defendant's breath, he was of the opinion that defendant was not intoxicated. The defendant did not stumble or stagger, his speech was normal rather than slurred, his answers were responsive and he was neither confused nor disoriented.

Roger Bard, a clinical...