People v. Smith, Docket Nos. 28702

• Decision Date: 05 December 1977
• Docket Number: 28735,Docket Nos. 28702
• Citation: 263 N.W.2d 306,80 Mich.App. 106
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronnie Lee SMITH and Rufus Jackson, Defendants-Appellants. 80 Mich.App. 106, 263 N.W.2d 306
• Court: Court of Appeal of Michigan — District of US

Page 306

263 N.W.2d 306

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronnie Lee SMITH and Rufus Jackson, Defendants-Appellants.

Docket Nos. 28702, 28735.

80 Mich.App. 106, 263 N.W.2d 306

Court of Appeals of Michigan.

Dec. 5, 1977.

Released for Publication March 14, 1978.

[80 MICHAPP 108] James R. Neuhard, State App. Defender, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief, Asst. Pros. Atty., for plaintiff-appellee.

Before BEASLEY, P. J., and B. J. BRENNAN and McDONALD, ^* JJ.

McDONALD, Judge.

Defendants, Rufus Jackson and Ronnie Lee Smith, were convicted of the charge of armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797. The trial was unique in that each defendant had a separate jury to decide their respective cases, but were present in the same courtroom and heard the same evidence. Both defendants were represented by the same attorney. At the trial, defendant Jackson elected to testify in his own behalf, while defendant Smith chose not to testify. Defendant Jackson was the only witness presented by the defense. The jury verdicts were handed down on February 25, 1976. On March 10, 1976, defendant Smith was sentenced to a period of not less than 10 years with a maximum imprisonment of 15 years. Defendant Jackson was sentenced to a period of from 5 to 15 years. Both defendants appeal their convictions as of right, asserting five claims of error. On March 4, 1977, both cases were consolidated on appeal.

It is claimed by defendants: (1) that the trial court erred in considering the content of alleged confessions of defendants during a Walker hearing on the voluntariness of the confessions, (2) that the trial court erred in finding that the confessions [80 MICHAPP 109] were voluntarily given, (3) that the trial court erred in not instructing the jury that it was their responsibility to determine whether defendants made the confessions, and whether the confessions were true, (4) that the trial court erred in allowing the prosecutor, on cross-examination, to question Jackson regarding his poverty and unemployment, and (5) that the representation of both defendants by the same attorney denied them their right to effective assistance of counsel.

For purposes of discussion, we will consolidate the first two issues raised by defendants.

I and II. The Walker Hearing.

Prior to trial, the court conducted a Walker hearing to determine the voluntariness of the alleged confessions of both defendants. Detective William Ackerman, who interrogated defendants and obtained the confessions, said that neither defendant had appeared to be in any physical distress during the questioning. Defendants claimed they were suffering heroin withdrawal symptoms at the time of their arrest and interrogation and were "climbing the walls" by the time they gave the incriminating statements. They said they were denied medical treatment until after they signed the statements.

Defendant said they had been told by a jail turnkey that they would get medical treatment if they cooperated with the police. Jackson claimed that Ackerman said the same. The jail turnkey was not called to testify. Ackerman denied making the statement and said he could not recall discussing the matter with the turnkey. Both defendants said they signed statements only to get medical aid.

Lincoln Park Officer Gordon Loveday was the arresting officer. He arrested defendants on the [80 MICHAPP 110] evening before the statements were made. He said, that at the time of their arrest, neither defendant appeared to be in any distress, and Jackson did not seem to be concerned about the sores on his arms and legs.

The content of defendants' statements was read into the Walker hearing record by Ackerman, after he was asked the question in regard to each defendant, "What, if anything, did he say?"

Hospital medical records on both defendants were admitted into evidence. Defendants were treated at Outer Drive Hospital in Lincoln Park several hours after signing confessions. The medical reports indicated that Jackson was given penicillin shots for the open sores on his arms and legs. The reports also indicated that both defendants were heroin addicts and were suffering withdrawal. It was noted that Jackson was "awake and alert", and Smith had "cramps". Both were given prescriptions for Valium.

The trial court noted that there had been conflicting testimony as to the circumstances attending the giving of the confessions and accepted as credible the testimony of Ackerman. He said that, in his opinion, testimony established that defendants were in full control of themselves and were not irrational when the statements were made. Nor were they in any apparent distress. The trial court recognized that defendants were treated at the hospital for "apparently unquestioned drug withdrawal symptoms", but found that the hospital reports corroborated Ackerman's version of what happened rather than defendants'. The trial court was especially impressed by the assessment by the hospital of Jackson's condition as "awake and alert". The trial court found that the confessions were voluntarily given.

[80 MICHAPP 111] Defendants claim that the trial court exceeded its authority in considering the credibility of defendants and insist that their confessions were not voluntary.

The voluntariness of a confession of a person accused of a crime is to be tested in a separate evidentiary hearing outside of the presence of the jury. People v. Walker (On Rehearing), 374 Mich. 331, 132 N.W.2d 87 (1965). Such a hearing was held in the instant case, but defendants allege error in procedure and outcome.

The sole purpose of a Walker hearing is to determine the fact of voluntariness, and a reviewing court is concerned only with the correctness of that determination. On appeal, we are required to examine the whole record and make an independent determination of the ultimate issue of voluntariness. People v. Robinson, 386 Mich. 551, 194 N.W.2d 709 (1972). If after such a review we do not possess a definite and firm conviction that a mistake was committed by the trial court in its ruling, we will affirm that ruling. People v. Hummel, 19 Mich.App. 266, 172 N.W.2d 550 (1969).

Voluntariness is to be determined from the totality of the circumstances, People v. Cutler, 73 Mich.App. 313, 251 N.W.2d 303 (1977), and, where credibility is at issue, this Court will give deference to the findings of the trial court, since the trial judge is in a superior position to judge the credibility of the witnesses. People v. Combs, 69 Mich.App. 711, 245 N.W.2d 338 (1976); People v. Hummel, 19 Mich.App. 266, 268-270, 172 N.W.2d 550 (1969).

In Combs, supra, this Court stated:

"In reviewing the cold, typewritten transcript of the Walker hearing it is clear that there was a conflict [80 MICHAPP 112] between the two versions of the incident presented to the trial court. Since the central issue becomes one of credibility we will not disturb the trial court's findings of fact. People v. Olson, 66 Mich.App. 197, 201, 238 N.W.2d 579 (1975). The trial court was not required to accept defendant's version of the incident and we cannot say after reviewing the entire record of the Walker hearing that the trial court's finding that the defendant's statements were voluntarily made is clearly erroneous."

69 Mich.App. at 716, 245 N.W.2d at 341.

Credibility was a central issue in the instant case. Defendants' claim that the trial court erred in considering their credibility is without merit. The trial court was not required to believe defendants' version of what happened, and apparently he did not. He believed instead the testimony of the police officers, and found that their testimony was corroborated by hospital records detailing medical treatment given defendants.

Defendants also claim that the trial court erred in considering the content of statements they allegedly made to police. However, they made no objection during the Walker hearing when Ackerman was asked what defendants had said. Nor was there any objection when Ackerman read the statements into the record in reply to the question. Furthermore, a review of the trial court's findings in the Walker hearing does not indicate that it was influenced by or considered the substance of the statements.

Defendants' reliance upon People v. Britt, 37 Mich.App. 175, 177, 194 N.W.2d 528, 530 (1971), lv. den., 387 Mich. 752 (1972), is misplaced. In Britt, this Court stated that "it would be desirable if a judge conducting a Walker hearing concerning the admissibility of a statement did not learn the nature of the statement until after he had made his decision on the issues of voluntariness and admissibility,[80 MICHAPP 113] so that his decision on those issues is not subconsciously influenced by knowledge of admissions made in the statement. However, we can visualize situations where, because of the defendant's testimony or other evidence at the Walker hearing, it may become necessary for the people to introduce inculpatory aspects of the statement in rebuttal." It is clear from the language used by the Court that a per se exclusionary rule was not intended.

A review of the entire record in this case does not bring us to a definite and firm conviction that a mistake was committed by the trial court in its ruling. People v. Hummel, supra, People v. Thomas Jones, 73 Mich.App. 107, 251 N.W.2d 264 (1976). Defendants' claim of error is without merit.

III. Instructions on Confessions.

Defendants contend that the trial court committed reversible error in not instructing the jury that it was their responsibility to determine whether defendants made the confessions introduced at trial, and whether the confessions were true. The trial record does not reveal that defendants requested any instructions on confessions. The record does reveal that defense counsel said he was satisfied with the...