People v. Sands, Docket No. 28737

• Decision Date: 20 March 1978
• Docket Number: Docket No. 28737
• Citation: 82 Mich.App. 25,266 N.W.2d 652
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Leroy SANDS, Defendant-Appellant. 82 Mich.App. 25, 266 N.W.2d 652
• Court: Court of Appeal of Michigan — District of US

Page 652

266 N.W.2d 652

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Leroy SANDS, Defendant-Appellant.

Docket No. 28737.

82 Mich.App. 25, 266 N.W.2d 652

Court of Appeals of Michigan.

March 20, 1978.

Released for Publication June 14, 1978.

[82 MICHAPP 26] Leitman & Roeser by Bruce T. Leitman, Bloomfield Hills, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, App. Chief Asst. Pros. Atty., Thomas S. Richards, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P. J., and HOLBROOK and MARTIN, ^* JJ.

D. E. HOLBROOK, Judge.

On December 12, 1975, defendant was convicted by an Oakland County Circuit Court jury of first-degree murder, contrary to M.C.L.A. § 750.316; M.S.A. § 28.548. On January 15, 1976, defendant was sentenced to life in prison with credit for 411 jail days served. Defendant appeals as of right.

This case arose from the murder of two attendants[82 MICHAPP 27] at a Tulsa gas station during the course of an armed robbery at approximately 6 a. m., on November 30, 1974. A recitation of the facts is important for an understanding of the issues raised upon appeal.

At 3:05 p. m., on November 30, 1974, the defendant confessed to the double homicide. On May 21, 1975, the defendant filed a motion to suppress the confession and for an evidentiary hearing. On September 24, 25, 26 and 30, 1975, the circuit court judge held an evidentiary hearing on admission of the confession pursuant to People v. Walker (On Rehearing), 374 Mich. 331, 132 N.W.2d 87 (1965). On November 24, 1975, the trial court denied the motion to suppress and the confession was subsequently read into evidence at the trial.

Testimony at the Walker hearing disclosed that the bodies of the two attendants were found inside the bathroom of a Tulsa gas station. The bodies were found shortly after 6 a. m., on November 30, 1974. At 6:30 a. m., on that date, defendant was observed by a deputy sheriff entering a restaurant located about 10 to 15 minutes from the murder scene. Defendant was with three other persons: co-defendant Kowalski, Stella Kowalski and Debbie McLaughlin, the defendant's girlfriend. The deputy sheriff, who had just finished having breakfast in the restaurant, spoke briefly to defendant on his way out. The deputy, who was aware there had been a shooting at the Tulsa gas station, mentioned it to defendant because he knew defendant had previously worked at the gas station.

Upon leaving the restaurant, the deputy sheriff drove to the Tulsa gas station to see if he could be of any assistance. He spoke with the officer in charge, Detective Lister, and mentioned that he had just seen defendant at the restaurant. Detective[82 MICHAPP 28] Lister requested the deputy to return to the restaurant and ask defendant if he would come to the gas station so that Lister could talk with him. Lister thought that defendant was or could be a suspect.

The deputy sheriff returned to the restaurant and found defendant still sitting in a booth. The deputy approached defendant and stated that there had been a shooting at the Tulsa station. He asked defendant if he remembered Detective Lister and defendant answered "Yes". ¹ Defendant was told that Lister would like to talk to him at the Tulsa gas station, if that was alright, and the defendant said it was fine. Together with the two women, defendant and Kowalski entered Kowalski's car and drove to the gas station. The deputy stated that defendant was not placed under arrest and went "strictly voluntarily". The defendant and Kowalski arrived at the Tulsa gas station shortly after 7 a. m. The defendant walked over to Lister's police vehicle and after an initial perfunctory conversation, Lister advised the defendant of his rights, which the defendant stated he understood. Lister asked defendant if he wanted an attorney and defendant said no, because he hadn't done anything. Lister asked the defendant if he would waive his rights not to answer questions, and defendant said, "Yes". Lister then asked him what his movements were "from midnight on". This questioning, to which defendant responded, lasted until approximately 7:15 a. m. After defendant gave an exculpatory story, ² he was told that he [82 MICHAPP 29] was free to go. They all remained at the gas station until 8 a. m. At this time, officers noticed that one of the girls with the defendant had work gloves in her purse which were identical to those sold in the Tulsa station. Also, another similar glove was found on the floor of the car in which defendant rode. While the defendant was at the gas station, the sheriff's department towed the car in which defendant had ridden to the police station for having improper plates. Lister then offered the defendant and his friends a ride to the police station so they could make a telephone call in order to get a ride home.

Prior to defendant's arrival at the gas station, a tracking dog had led officers from the gas station to a parking lot located near the station where fresh tire tracks and footprints were observed in the snow. Some oil spots or drippings were also observed in the snow. After defendant and his friends arrived in their car, the officers noticed similarities between the car's tire tracks and oil drippings and those previously observed in the snow at the parking lot.

While at the police station, Lister asked Stella Kowalski and Debbie McLaughlin some questions. At or about 9 or 9:30 a. m., Lister told the individuals they could go. They told Lister that they were going to a nearby restaurant. At no time did the officer tell defendant he was under arrest.

After defendant and his friends left, Detective Lister spoke with the chief assistant prosecutor for [82 MICHAPP 30] Oakland County. Following this conversation, Lister requested that Officer Mercer go to the restaurant where defendant and Kowalski had said they were going and bring them back for further questioning. Officer Mercer went to the restaurant and told Kowalski and Sands that Detective Lister would like to talk with them. Officer Mercer testified that as far as he was concerned, defendant had a choice in deciding whether or not to go to the police station and that defendant voluntarily went with him.

When defendant and Kowalski arrived at the police station, they were ushered into a report writing room and asked to have a seat until Detective Lister returned. The officer told them that there was coffee in the back, as well as a restroom. Officer Mercer then left the police station. Apparently there was no one, other than Kowalski, defendant and the dispatcher, at the police station at this time.

Detective Lister returned to the police station around 11:30 or 12 O'clock. Detective Lister testified that he advised defendant of his rights and questioned him. Lister also testified that defendant "wasn't officially arrested", but "was being held for questioning". "He wasn't free to leave. He was there for interrogation purposes."

At 1:45 p. m., defendant gave a statement in the presence of the chief assistant prosecutor, Detective Lister and a court reporter. Prior to giving this statement, defendant was advised of his Miranda ³ rights. The defendant denied involvement in the crime and he was then taken back to the room where he had been waiting. During the next 45 minutes to an hour, the codefendant Kowalski [82 MICHAPP 31] and Kowalski's sister were questioned. During this 45-minute period, the defendant agreed to submit to a nitrate test. However, the nitrate test was never sent in for analysis because the test was conducted too long after the crime for the results to be reliable.

After the questioning of Kowalski and Kowalski's sister, defendant indicated that he wanted to see the chief assistant prosecutor. At 3:05 p. m., the chief assistant prosecutor took the defendant's 25-minute stenographically recorded confession. Lister and the Pontiac Township police chief, Robert Rayner, were also present.

Defendant in his confession detailed the planning of the robbery and the intent to kill the attendants after getting the money. Defendant explained how he and Kowalski parked in the cement company's parking lot and approached the station carrying an 8mm lever action sniper rifle. After getting the money, he stated how he ordered the victims into the bathroom and repeatedly shot them as they tried to talk him out of it. Defendant said he shot the victims because he had worked with them before and they could identify him. The defendant presented no witnesses on his behalf at the trial.

At the trial of this cause, testimony was introduced that the bodies of the two attendants were found by a customer around 6 a. m. The victims were found lying on the floor of the men's bathroom with the top of their heads "blown off". A witness who lived directly across from the gas station testified that she had heard 3 distinct sounds, similar to small explosions, around 6 a. m. on November 30.

Debra McLaughlin, the girl with whom defendant was living at the time, testified that about 4 or [82 MICHAPP 32] 5 a. m., on the morning in question, defendant left their home in the company of Kowalski. She testified that defendant left the house carrying a rifle. Ms. McLaughlin further stated that defendant and Kowalski returned around 6 a. m. and told her to go into another room while they carried on a conversation. Shortly thereafter, before leaving for a nearby restaurant, defendant told her that he had $900 in the attic if she needed any money.

An audit of the Tulsa gas station disclosed that.$1,275.81 including checks were missing from the safe. Deputy Donald McLaughlin, employed by the Oakland County Sheriff's Department Crime Laboratory, testified that he found a metal jacket of a fired bullet on the floor of the gas station. Pursuant to a search warrant, he found four fired UMC 8mm Lebel cartridge cases in the living room...