People v. Strunk

• Decision Date: 16 July 1990
• Docket Number: Docket No. 107656
• Citation: 184 Mich.App. 310,457 N.W.2d 149
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Karl Bryan STRUNK, Defendant-Appellant. 184 Mich.App. 310, 457 N.W.2d 149
• Court: Court of Appeal of Michigan — District of US

Page 149

457 N.W.2d 149

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Karl Bryan STRUNK, Defendant-Appellant.

Docket No. 107656.

184 Mich.App. 310, 457 N.W.2d 149

Court of Appeals of Michigan.

Submitted Jan. 10, 1990.

Decided June 19, 1990.

Released for Publication July 16, 1990.

[184 MICHAPP 312] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., James L. Talaske, Pros. Atty., and J. Ronald Kaplansky, Asst. Atty. Gen., for people.

Catchick & Dodge by David A. Dodge, Grand Rapids, for defendant-appellant.

Before MURPHY, P.J., and HOOD and NEFF, JJ.

PER CURIAM.

Defendant was convicted by a jury of first-degree, premeditated murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). The mandatory sentences for both crimes were imposed; life in prison without parole for the murder conviction and two years in prison for the firearm conviction.

Defendant appeals as of right and we affirm.

I

The record on appeal shows that defendant is [184 MICHAPP 313] the only child of parents who were indulgent of his physical wants. His father, in particular, was prone to providing his son with things he would demand, including cars. In fact, it was apparently an attempt to scale back on this sort of indulgence that led to the crimes at issue in this case.

In February, 1987, when defendant was sixteen years old, he and his pregnant girl friend were living with his father. The parents were separated because of marital difficulties. The father informed defendant that the living arrangements would have to change and that defendant and his girl friend would have to move. He also refused defendant's request for assistance in purchasing another vehicle.

On Sunday, February 8, 1987, defendant left the house with a twelve-gauge shotgun. He walked to his father's machine shop where his father was working. The two of them were alone and, according to defendant, they worked on a machine together. Defendant again asked his father for help in buying a vehicle and was rebuffed. The father also told him that he and his girl friend would have to move out of the house.

Defendant testified that he felt "total rejection" as a result of his father's refusal to help him. His response was to pick up the shotgun and use it to shoot his father, once in the back, once in the abdomen. The shot to the abdomen was fatal.

Defendant loaded his father's body in the back of his father's pickup truck. He then decided to put the body into a fifty-five gallon drum, which he welded shut. He spread oil around the floor of the shop to disguise the blood and then disposed of the drum, with the body in it, in a ditch in the woods. The body was discovered the next day by a snowmobiler.

Defendant had the presence of mind to take his [184 MICHAPP 314] father's wallet and checkbook from the desk in the machine shop. The next day, he used a forged check to buy a truck. He returned the truck the same day because of mechanical difficulties. He then tried to buy another vehicle with another of his father's checks, but the salesman would not take the check without first talking with defendant's father. Defendant then enlisted the help of a friend, who called the automobile dealer pretending to be defendant's father. The dealer refused to close the deal until he could talk to the father in person.

Two days after the murder, defendant's mother gave permission for a police search of the residence and business properties. That same day, defendant was arrested and taken to a state police post where he gave an incriminating statement.

On appeal defendant raises five issues, none of which amounts to error requiring reversal.

II

Defendant contends that his statements, which were made prior to the time the police took him to the probate court, were erroneously admitted into evidence. Defendant was sixteen years old when he was arrested. Prior to the arrest, the officers talked to the local probate judge by telephone. The judge advised the officers that defendant should be questioned only in the presence of his mother. The arrest took place before 1:00 p.m. on a Tuesday. When defendant's mother arrived at the state police post, questioning began. At some point, defendant asked that his mother leave the room, and he then confessed to killing his father and trying to dispose of the body. The confession was tape-recorded.

At all stages of the proceedings against him, [184 MICHAPP 315] defendant objected to introduction of the statement given after his arrest. In each instance the objection was overruled. This was error, because the statement was obtained in violation of defendant's statutory rights under M.C.L. Sec. 764.27; M.S.A. Sec. 28.886 and M.C.L. Sec. 712A.14; M.S.A. Sec. 27.3178(598.14). However, the error was harmless beyond a reasonable doubt.

A

At issue here is the effect of the circumstances under which defendant's statement was obtained by the state police after his arrest.

Under the Code of Criminal Procedure, a juvenile who is arrested must be taken to the juvenile division of probate court "immediately." M.C.L. Sec. 764.27; M.S.A. Sec. 28.886. Under the Probate Code, a juvenile who is taken into custody and not released to a parent is to be taken "immediately" to probate court. ¹ M.C.L. Sec. 712A.14; M.S.A. Sec. 27.3178(598.14). MCR 5.933(C)(1) requires that, when a juvenile is detained, an officer must "immediately contact the court."

When defendant was arrested, the probate court was contacted, as required by the court rule. However, defendant was not taken immediately to probate court, as the statutes require. Instead, he was taken to the state police post to await the arrival of his mother. After his mother arrived, defendant was interrogated. During this detention and interrogation he gave incriminating statements. There is no doubt that, when defendant was arrested, he was a suspect in his father's murder and the reason for the delay in taking him [184 MICHAPP 316] to probate court was to obtain a statement from him regarding the crime.

B

There has been considerable appellate discussion of the effect of violation of the statutory mandate requiring a juvenile to be taken immediately to probate court after arrest, and two lines of authority have emerged to remedy such a violation.

One line of cases provides authority for a per se rule requiring strict application of the language of M.C.L. Sec. 764.27; M.S.A. Sec. 28.886. People v. Wolff, 23 Mich.App. 550, 179 N.W.2d 206 (1970); People v. Allen, 109 Mich.App. 147, 311 N.W.2d 734 (1981), lv. den. 412 Mich. 913 (1982). In Wolff, two confessions were obtained in violation of the statute, but both were found to be voluntary by the trial court. This Court, in a very brief opinion, reversed, holding that a subsequent finding of voluntariness did not cure the defect occasioned by the failure to take the juvenile defendant immediately before the probate court. 23 Mich.App. at 552, 179 N.W.2d 206.

The facts of Allen distinguish it from Wolff to some extent. However, in discussing the statute and the Wolff case, the Court held that whether a juvenile is an accused when questioned is irrelevant and that the requirement is to take any juvenile in custody immediately to probate court. 109 Mich.App. at 157, 311 N.W.2d 734.

The greater weight of authority holds that the admissibility of a juvenile's confession taken in [184 MICHAPP 317] violation of the strict letter of the statutes and court rule is to be judged by the totality of the circumstances under which the statement was taken. This is not only the prevailing view in Michigan, but elsewhere in the United States. See Anno: Voluntariness and admissibility of minor's confession, 87 A.L.R.2d 624.

In People v. Morris, 57 Mich.App. 573, 226 N.W.2d 565 (1975), lv. den. 394 Mich. 751 (1975), cert. den. 423 U.S. 849, 96 S.Ct. 90, 46 L.Ed.2d 72 (1975), a two-hour stop at the precinct station during which a statement was taken was held not to violate the "immediacy" provision of M.C.L. Sec. 764.27; M.S.A. Sec. 28.886. In that case, like this one, the defendant's mother was present and he was advised of his Miranda ² rights.

People v. Irby, 129 Mich.App. 306, 342 N.W.2d 303 (1983), lv. den. 418 Mich. 951 (1984), represents the most comprehensive discussion of the totality-of-the-circumstances test. The Court in Irby set out four criteria by which to judge the circumstances surrounding the interrogation of a juvenile defendant. The criteria mentioned by the court are: (1) whether the defendant is adequately advised of the Miranda rights, demonstrates an understanding of them and knowingly waives them; (2) whether, and to what degree, the police comply with extra-procedural safeguards mandated by the juvenile court rules; (3) whether a parent or adult custodian is present; and (4) the personal background of the juvenile. 129 Mich.App. at 320, 342 N.W.2d 303. We do not read Irby to suggest that these criteria are mutually exclusive factors to be considered when reviewing interrogation of a juvenile.

In Irby the Court noted that there had not been strict compliance with the rules surrounding detention[184 MICHAPP 318] of a juvenile, but excused it on the ground that the totality of the circumstances had rendered the defendant's confession voluntary and that the defendant's substantial rights had been protected. 129 Mich.App. at 321, 342 N.W.2d 303.

Two cases since Irby have further refined the application of the totality-of-the-circumstances rule. In People v. Jordan, 149 Mich.App. 568, 386 N.W.2d 594 (1986), the Court noted that unreasonable prearraignment delay does not automatically require suppression of statements taken during the delay. 149 Mich.App. at 577, 386 N.W.2d 594. The Court went on to say that where the delay has been used "as a tool to extract the statement" the statement will be suppressed, even if it was voluntarily given. 149...