People v. Shelson

• Decision Date: 08 July 1986
• Docket Number: Docket No. 82406
• Citation: 389 N.W.2d 159,150 Mich.App. 718
• Court: Court of Appeal of Michigan — District of US
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eva Louise SHELSON, Sr., Defendant-Appellant. 150 Mich.App. 718, 389 N.W.2d 159

Page 159

389 N.W.2d 159

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eva Louise SHELSON, Sr., Defendant-Appellant.

Docket No. 82406.

150 Mich.App. 718, 389 N.W.2d 159

Court of Appeals of Michigan.

Submitted Jan. 14, 1986.

Decided April 9, 1986.

Released for Publication July 8, 1986.

[150 MICHAPP 720] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Jack W. Scully, Pros. Atty., Michael A. Nickerson, Asst. Atty. Gen., for the people.

State Appellate Defender Office by Chari Grove, for defendant-appellant on appeal.

Before GRIBBS, P.J., and HOLBROOK, and ROUMELL ^*, JJ.

PER CURIAM

On September 11, 1984, defendant was convicted by a jury of inciting another to commit arson, M.C.L. Sec. 750.157b; M.S.A. Sec. 28.354(2), and of burning insured property, M.C.L. Sec. 750.75; M.S.A. Sec. 28.270. She was sentenced to five years probation, with the first six months to be served in the county jail, and ordered to pay a $200 fine and $1,000 in court costs. She appeals from both convictions. [150 MICHAPP 721] We reverse her conviction of inciting another to commit arson, and affirm her conviction of burning insured property.

On April 25, 1983, defendant's home, located on Melita Road in Arenac County, was burned. An investigation by authorities revealed that the fire originated from four separate points, leading to a conclusion that the fire was intentionally set. Defendant asserted an alibi defense and presented expert testimony that a defective electrical system caused the fire. Defendant raises twelve claims of error, only four of which merit discussion.

First, we reverse defendant's conviction for inciting her son, Patrick Shelson, to commit arson because there is insufficient evidence that her statements resulted in the commission of an offense by Patrick.

M.C.L. Sec. 750.157b; M.S.A. Sec. 28.354(2) provides:

"Any person who incites, induces or exhorts any other person to unlawfully burn any property, to murder, to kill, to wound or to commit an aggravated or felonious assault on any person or to do any act which would constitute a felony or circuit court misdemeanor, that may endanger or be likely to endanger the life of any person, or who aids and abets in any such inciting, inducing or exhorting shall be punished in the same manner as if he had committed the offense, incited, induced or exhorted."

An accused is not subject to criminal responsibility for exhortations or utterances which do not result in the commission of the offense sought to be committed. People v. Rehkopf, 422 Mich. 198, 205, 370 N.W.2d 296 (1985). A person who merely makes statements seeking the commission of an offense may be subject to liability only for the common-law offense of solicitation. Rehkopf, supra. This recent clarification of the statute by our [150 MICHAPP 722] Supreme Court adopts a view which is contrary to that held by panels of this Court in People v. Salazar, 140 Mich.App. 137, 143, 362 N.W.2d 913 (1985), and in People v. Dennis, 128 Mich.App. 235, 340 N.W.2d 81 (1983), rev'd 422 Mich. 967, 374 N.W.2d 419 (1985).

In this case, defendant was bound over to circuit court on a charge of inciting her son to commit arson based upon her son's testimony and upon evidence that the fire had been intentionally set. Patrick testified that defendant had asked him to burn the house down for her "a couple hundred thousand times at least in the past five years", making the request "at least three times a week". According to Patrick, she was unhappy about the high electric bills which ran approximately $250-$300 per month, the breakdown of the furnace, and other system failures. Patrick heard defendant make the same request to his three other brothers and two sisters. No one took defendant's statements seriously. They simply discounted her remarks, even though she had offered Patrick money to burn the house. According to Patrick, two weeks before the fire, defendant had stated that she would buy him and his sister a car if she received any money from the insurance company. Patrick testified that he absolutely refused to have anything to do with such a scheme because it was a stupid idea. At the time of the fire, Patrick was not living in the home. He had removed several household appliances at his mother's request one week before the fire.

There is no evidence that Patrick actually burned the home. It appears from the record that, after being questioned by authorities, he was not a suspect. At trial, Detective Draper testified that he believed Patrick had nothing to do with the burning. There is no evidence that defendant's constant [150 MICHAPP 723] wish that the house would burn, a wish she communicated to all of her children, resulted in the commission of arson. Thus, under Rehkopf, supra, we reverse her conviction.

Further, defendant's remarks to her children did not urge the type of immediate or imminent action which is required to support a conviction. See, People v. Chapman, 80 Mich.App. 583, 588, 264 N.W.2d 69 (1978).

Defendant next contends that the trial court erred when it concluded, after a Walker ¹ hearing, that her post-polygraph confession was voluntary. Approximately a month or more before submitting to the polygraph test, defendant discussed the advisability of taking the test with Jack W. Scully, an attorney who had represented her in a divorce action. Defendant had stopped by Scully's office to make a payment on her outstanding account, and brought the matter up. Scully was a prosecuting attorney, in addition to his private practice, a fact of which defendant was aware. At the Walker hearing, Scully testified that he had told defendant, "Mrs. Shelson, if you didn't do this you probably have nothing to lose by taking it [the polygraph test]". Scully testified that he did not represent her at the time this conversation occurred. In contrast, defendant testified that Scully "just indicated that if I didn't do it to take the test".

A trial court's ruling on the voluntariness of a confession or statement is reviewed by the standard described in People v. Robinson, 386 Mich. 551, 557, 194 N.W.2d 709 (1972):

"The determination of voluntariness is a matter of fact--the ruling of law on the authority of the cases [150 MICHAPP 724] cited is that voluntary statements etc. are admissible and involuntary statements etc. are not.

"In any event the sole purpose of the Walker hearing is to determine the fact of voluntariness and a reviewing court is concerned only with the correctness of that determination. The role of reviewing court is accurately stated in People v. Summers, 15 Mich.App. 346, 348 (1968):

" 'On this appeal we are required to 'examine the entire record and make an independent determination of the ultimate issue of voluntariness.' Davis v. North Carolina (1966), 384 US 737, 741, 742 (86 S.Ct. 1761, 1764, 16 L.Ed.2d 895, 898)."

We must affirm the trial court's findings unless we are left with a firm and definite conviction that a mistake has been made. People v. McGillen # 1, 392 Mich. 251, 257, 220 N.W.2d 677 (1974).

Defendant argues that her statements were involuntary, because they were induced by the misleading and ineffective advice of her attorney Scully. There was conflicting evidence at the Walker hearing as to whether Scully was acting as defendant's attorney and whether he actually advised her to take the test. Where the evidence is conflicting, and the determination of voluntariness largely depends upon credibility, we defer to the findings of the lower court since it is in a better position to evaluate credibility. People v. Smith, 124 Mich.App. 723, 725, 335 N.W.2d 137 (1983). The trial court gave greater weight to Scully's testimony and concluded that he did not advise defendant to take the polygraph test. We are not left with a firm and definite conviction that a mistake has been made.

Defendant next argues that her statements were involuntary because they were induced by a promise of leniency, i.e., probation, offered by Officer Draper. It is improper to induce a confession by a [150 MICHAPP 725] promise of leniency. People v. Conte, 421 Mich. 704, 365 N.W.2d 648 (1984). At trial, defendant testified that Officer Draper had promised her probation if she would confess, but that point was not pursued by her attorney or rebutted by ...