People v. Russell

• Decision Date: 30 October 1970
• Docket Number: No. 1,Docket No. 8645,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harold LeGrand RUSSELL, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 845

183 N.W.2d 845

27 Mich.App. 654

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harold LeGrand RUSSELL, Jr., Defendant-Appellant.

Docket No. 8645.

Court of Appeals of Michigan, Division No. 1.

Oct. 30, 1970.

Rehearing Denied Dec. 21, 1970.

Released for Publication Feb. 26, 1971.

Sheldon Otis, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Angelo A. Pentolino, Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and LEVIN and BORRADAILE, ^* JJ.

J. H. GILLIS, Presiding Judge.

This is a delayed appeal upon leave granted from an order denying defendant's motion for new trial.

Defendant, Harold LeGrand Russell, Jr., was convicted in a jury trial of second-degree murder, ¹ and was sentenced to a prison term of not less than 15 years nor more than 25 years.

The conviction was for the shooting death of Dr. Wayne Glas on the night of October 2, 1965. At that time, defendant was principally employed as a plant protection officer, and as a part-time employee of a private security agency. He was dressed in a police-type uniform and had a pistol in his possession.

Prior to the shooting, there was a confrontation on Interstate 94, between the defendant and Dr. Glas. From the conflicting testimony, it appears that during the course of this confrontation, which involved flashing headlights, tailgating and several alleged instances of 'cutting off', the defendant followed Dr. Glas off the freeway, and found him stopped behind a stalled car. The defendant got out of his car, gun in hand, approached the doctor's car, rapped on the window, and announced that he was a police officer and that the driver was under arrest. Apparently, the doctor backed up his car, then drove forward. As he went by the defendant, the fatal shot was fired. The defendant got back in his car and drove away. He was subsequently arrested when he returned to the scene.

The defendant claims on appeal that the several references made by the prosecutor during the cross-examination of the defendant, of the defendant's silence before trial constitute a violation of his right against self-incrimination, requiring reversal. We disagree.

I

The defendant, on direct examination, testified that when he approached Dr. Glas's car, he intended to make an arrest because the doctor's driving was 'a menace to other people who were using the expressway.' On cross-examination, the defendant said he was going to make an arrest for 'felonious assault with a dangerous weapon in the form of an automobile.' The prosecution then tried to show that the assault basis for the arrest was a recent fabrication, based on the defendant's apparent sudden apprehension that he could not, as a private citizen, make an arrest for a misdemeanor.

The prosecution started a line of questioning which made reference to the defendant's previous silence on that issue. Without objection by defense counsel, the following colloquy occurred:

'Q. Right. And to the best of your memory, all you told them was that you were going to report a shooting?

'A. Something of this nature, yes, sir.

'Q. Let me see if we can't help you remember a little more. Did you Tell those officers that you were trying to make a citizen's arrest?

'A. I believe I did, Yes, sir.

'Q. Does that refresh your recollection?

'A. Yes, sir.

'Q. What did you tell them you were arresting him for, going to try to arrest him for?

'A. I don't recall, specifically.

'Q. Your memory isn't very good on that?

'A. I said I didn't recall specifically, sir.

'Q. All right. Now, let me see if I can help you a little bit. Didn't you, as a matter of fact, Tell them that an auto had cut you off, and you were trying to make a citizen's arrest?

'A. I believe I may have, Yes, sir.

'Q. All right. Now, without relating the conversation, did you talk to any other officers that night after your arrest?

'A. Yes, sir.'

'Q. All right. And did you, at any time prior to yesterday afternoon on the witness stand, ever tell any officer or me that you were arresting, or attempting to arrest, Dr. Glas for felonious assault upon you with a dangerous weapon, to wit: an automobile?

'A. No, sir, I did not.

'Q. That (yesterday's testimony) is the first time you mentioned to any police officer, or prosecutor, or anyone other than perhaps a member of your family or you counsel?

'A. That is correct sir.

'Q. Now, you were given the opportunity were you not, to talk to an attorney the night of the shooting?

'A. Yes sir.

'Q. You were given an opportunity the night of the shooting and the next day to talk to both Detectives Torikian and Cummings?

'A. Yes, sir. ²

'Q. And on Monday morning, you were given an opportunity to talk to me?

'A. Yes, sir.

'Q. And on no occasion prior to yesterday did you ever tell any of us who are in charge of this case for the People that you were trying to make an arrest for felonious assault?

'A. No, sir, I did not.' (Emphasis supplied.)

It is obvious that these questions were calculated to impeach the defendant's testimony. When arrested, defendant told the police that an auto cut him of and he intended to make a citizen's arrest because the doctor's driving was a menace to others. At trial he said he was trying to arrest for felonious assault. The prosecution had the right to show such inconsistency, and to show that defendant's present story had not been told before. This is not a case of challenging a defendant for a prior exercise of silence, but rather a challenge based on a prior inconsistent statement.

II

It is elementary that under constitutional mandate an accused person cannot be compelled to be a witness against himself. U.S.Const. Am. 5; Const.1963, art. 1, § 17; M.C.L.A. § 600.2159 (Stat.Ann.1962 Rev. § 27A.2159). It is also well settled that the doctrine of silence as an admission is contrary to the absolute right of silence. Griffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; People v. Wessel (1931), 256 Mich. 72, 239 N.W. 259.

The prosecution concedes all this, but argues that since the defendant voluntarily took the witness stand he waived his right against self-incrimination, hence the fact that defendant never told his present story before trial is not only relevant but admissible.

It is well settled under Michigan case law that a defendant who takes the witness stand in his own behalf is subject to cross-examination. People v. McCrea (1942), 303 Mich. 213, 6 N.W.2d 489; People v. Lloyd (1967), 5 Mich.App. 717, 147 N.W.2d 740. But it is argued by the defendant that the scope of this cross-examination must be limited by the principle that there should be no penalty for the previous exercise of the right to remain silent.

While we recognize that there have been cases in support of this proposition, ³ we think the better reasoned authority requires a holding in this case that where a voluntary offer of testimony upon any fact is given, there is a waiver of the privilege against self-incrimination as to all other relevant facts. State v. Burt (1969), 107 N.J.Super. 390, 258 A.2d 711; Sharp v. United States (C.A. 5, 1969), 410 F.2d 969; May v. State (Miss., 1968), 211 So.2d 845; State v. Zappia (1969), 8 Ariz.App. 549, 448 P.2d 119, cert. den., Zappia v. Arizona (1969), 396 U.S. 861, 90 S.Ct. 132, 24 L.Ed.2d 113. To hold otherwise would allow the defendant to fabricate his testimony on the stand without the fear of impeachment under cross-examination.

Since the decision in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, it is clear that silence in communicating to police officers can no longer be used as an admission against interest. But there is nothing in Miranda that forbids such cross-examination once the defendant has chosen to testify. As Judge Learned Hand stated in United States v. St. Pierre (C.A. 2, 1942), 132 F.2d 837, 840:

'It must be conceded that the privilege is to suppress the truth, but that does not mean that it is a privilege to garble it; * * * it should not furnish one side with what may be false evidence and deprive the other of any means of detecting the imposition.'

We conclude that when the defendant took the stand and asserted his version of the facts on direct examination, his testimony became subject to a full and complete cross-examination.

III

Defendant next condemns the conduct and arguments of the prosecuting attorney and contends that inflammatory and prejudicial statements were made which require reversal. After a review of the record we are unable to accept this contention.

The defendant points to the prosecutor's summation wherein he states:

'I don't think bad judgment did enter into it. It think when he got out of that car, the intelligent man that he is, he had murder in his heart and that if his orders were not followed, he was going to shoot, and shoot to kill.'

It is defendant's contention that by injecting the prosecutor's personal opinion, reversible error was committed. People v. Ignofo (1946), 315 Mich. 626, 24 N.W.2d 514.

We conclude that the comment in question as permissible because it concerned an inference that could properly be drawn from the lengthy and detailed testimony. The rule is clear that a prosecuting attorney has a right to draw such an inference from the facts on record. People v. Morlock (1925), 233 Mich. 284, 206 N.W. 538; People v. Badge (1968), 15 Mich.App. 29, 165 N.W.2d 901.

Defendant also claims that the prosecutor injected a racial overtone prejudicial to the defendant by saying:

'There may be those who might feel that this man should be convicted because he is a Negro, and killed a white man. And there may be those who feel he should be acquitted because he is a Negro, and that the white man was wrong. But I say to you, ladies and gentlemen, with all the sincerity at my command, that if I thought for one minute that...