People v. Rowen, Docket No. 51457

• Citation: 314 N.W.2d 526,111 Mich.App. 76
• Decision Date: 26 January 1982
• Docket Number: Docket No. 51457
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry ROWEN, Defendant-Appellant. 111 Mich.App. 76, 314 N.W.2d 526
• Court: Court of Appeal of Michigan — District of US

Page 526

314 N.W.2d 526

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry ROWEN, Defendant-Appellant.

Docket No. 51457.

111 Mich.App. 76, 314 N.W.2d 526

Court of Appeals of Michigan.

Submitted Oct. 6, 1981.

Decided Nov. 3, 1981.

Released for Publication Jan. 26, 1982.

[111 MICHAPP 78] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Pros. Atty. Counsel, and Geoffrey H. Nickol, Asst. Pros. Atty., for the people.

Lawrence G. Kaluzny, Birmingham, for defendant-appellant on appeal.

Before ALLEN, P. J., and KELLY and J. J. KELLEY, JJ.

PER CURIAM.

Following a four day trial ending December 4, 1979, defendant was convicted by a jury of unlawfully driving away an automobile, M.C.L. § 750.413; M.S.A. § 28.645. Sentenced to a term of from two to five years in prison with credit for 16 days previously served, defendant appeals as of right.

Defendant first argues that the prosecutor improperly elicited testimony from the arresting officer, James Lyttle, that defendant had been advised of his Miranda rights. However, since defense counsel did not object to officer Lyttle's remark at trial, this issue is not properly preserved for appeal.

While it has been held that failure to object at trial to an error involving a constitutional right does not necessarily preclude review, People v. Miller, 49 Mich.App. 53, 211 N.W.2d 242 (1973), recent decisions of this Court have held that appellate review is foreclosed unless such error would have been decisive to the outcome of the case. People v. Harris, 95 Mich.App. 507, 291 N.W.2d 97 (1980); People v. Flores, 92 Mich.App. 130, 284 N.W.2d 510 (1979). See also People v. Hurd, 102 Mich.App. 424, 301 N.W.2d 881 (1980). We conclude [111 MICHAPP 79] that, under either approach, review in the case before us would be foreclosed.

The record discloses that after defendant was placed under arrest, he was placed in Lyttle's automobile while another officer searched defendant's car. The search revealed a dent puller, a device frequently used in stealing cars. After the device was put in Lyttle's car, defendant volunteered that he had loaned his accomplice $10 to purchase the dent puller. A hearing was held outside the presence of the jury to determine whether defendant's statement was voluntary. Noting that defendant had made that statement after he had been advised of his Miranda rights and that officer Lyttle had not attempted to elicit any statement by defendant, the trial court held the statement admissible.

Although People v. Jablonski, 38 Mich.App. 33, 195 N.W.2d 777 (1972), is authority for the rule that it is error for the prosecution to inform the jury that defendant was given his Miranda warnings and remained silent, Jablonski also holds that an exception to the rule applies where, as in the instant case, the prosecution intends to offer a confession or statement made by the defendant. Id., 38, 195 N.W.2d 777. Accordingly, in the instant case, the fact that the jury learned that defendant had been advised of his Miranda rights did not impinge on defendant's right to remain silent. As in People v. Wells, 102 Mich.App. 558, 564, 302 N.W.2d 232 (1980), defendant, after being given his Miranda warnings, expressly waived his right to remain silent and gave an incriminatory statement. The Wells Court held that under such circumstances no error occurred when the jury was informed that defendant had been given Miranda warnings.

[111 MICHAPP 80] Defendant next challenges the admission into evidence of his statement that he gave $10 to his accomplice to purchase the dent puller. Defendant claims the statement was not voluntary but was the product of subtle coercion exercised by the police when the dent puller was placed in the officer's car where it could be seen by defendant. On appeal from a trial court's determination of voluntariness, this Court is required to examine the entire record and make an independent 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).

Under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), a suspect is free at any time to exercise his right to remain silent and if such right is asserted, all interrogation must cease. However, spontaneous, volunteered statements by an in-custody suspect do not fall within the purview of Miranda and are admissible at trial. People v. Terry, 86 Mich.App. 64, 67-68, 272 N.W.2d 198 (1978); People v. Nard, 78 Mich.App. 365, 260 N.W.2d 98 (1977). Therefore, it must be determined whether the officer's action of placing incriminating evidence within defendant's view was improper and amounted to the functional equivalent of interrogation.

In Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the Supreme Court addressed the issue of what constitutes "interrogation" under Miranda. The Court held:

"We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those [111 MICHAPP 81] normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held...