People v. Swan

Decision Date08 October 1974
Docket NumberNo. 2,Docket No. 17542,2
Citation223 N.W.2d 346,56 Mich.App. 22
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sam SWAN, Jr., Defendant-Appellant
CourtCourt of Appeal of Michigan — District of US

M. Patricia Costello, Monroe, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James J. Rostash, Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and BRONSON and VanVALKENBURG,* JJ.

LESINSKI, Chief Judge.

The defendant, Sam Swan, Jr., was convicted by a jury of armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797, and sentenced to 15 to 40 years in prison. He appeals as of right.

On appeal, the defendant raises three issues as error at his trial. He argues, first, that certain statements he made to an interrogating police officer were taken in violation of his constitutional rights and improperly admitted at trial. Second, he asserts that reversible error occurred in the conduct of the trial when the prosecutor elicited testimony from a police officer that the defendant had refused to make any statement at the time of his arrest. Finally, the defendant argues that the prosecutor indicated his personal opinion of the defendant's guilt during final argument and thus injected prejudicial error into the proceedings.

This conviction arose from the robbery of Arbie's Party Store in Monroe, Michigan on December 8, 1972. Between 8 and 9 o'clock on that evening, Mrs. Mollie Holland was clerking at the store, accompanied by her grandson, Lewis Kelley. As Mrs. Holland was working at the side of the store, a man grabbed her by the neck, shoved a hard object into her back, and pushed her to the rear of the store. As she was being pushed, Mrs. Holland noticed a second man near the front of the store wearing something white over his head. Mrs. Holland opened the cash register and was forced to the floor and held down. After the robbers took the money from the register, she got up quickly enough to see a man fleeing wearing tan pants.

In the meantime, Lewis Kelley watched the events from a basement stairway at the rear of the store. Lewis saw only the man holding Mrs. Holland and placing what looked like a gun at her back. The man had a medium afro haircut and wore a levi jacket and tan pants. After the man left, Lewis immediately called the police.

Within a minute after the call to the police, a patrol car was dispatched to the scene. As the officers approached Arbie's Store they observed two men about to cross the street. As the police car stopped to let them cross, the men broke into a run. One of the men, later identified as the defendant Swan, dumped some money out of a white hat he was carrying as he ran. Both the defendant and his companion stopped on command from the police. On a search of the immediate area, the police discovered money in defendant's hat and on the ground in roughly the same amount and denominations taken from the store. The man with the defendant dropped a wig containing a .32-caliber revolver on the ground. Both suspects wore levi jackets and the defendant wore tan pants. Lewis Kelley testified that the wig dropped by the second man looked like the afro worn by the robber he had seen, and the white hat carried by the defendant resembled the head covering Mollie Holland had noticed on one of the robbers.

On the following afternoon a detective sergeant interrogated the defendant at police headquarters. In the course of the interrogation, the defendant admitted that he had helped plan and had participated in the robbery. The detective testified to the defendant's admissions at trial.

I

The first issue raised on appeal is whether the statements which defendant made to the police were properly admitted at trial. The defendant contends that he did not knowingly, intelligently, and voluntarily waive his right to remain silent and right to counsel at the time of his interrogation. At trial the defendant moved to suppress his statements to police and the trial court held a Walker 1 hearing on the motion. At the conclusion of the hearing, the court determined that the defendant had been fully advised of his rights and had not requested a lawyer at any time. The court found that the defendant's statements were voluntarily made. 2 Upon review of these findings, we are required to examine the entire record and make an independent determination of the ultimate issues of voluntariness and waiver giving due regard to the unique opportunity of the trial court to judge the witnesses' credibility. See People v. Robinson, 386 Mich. 551, 194 N.W.2d 709 (1972); People v. McClendon, 48 Mich.App. 552, 210 N.W.2d 778 (1973); 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), pp. 595--596.

The questions presented are whether the defendant in fact waived his right to counsel and his right to remain silent and if so whether the waiver was knowing, intelligent, and voluntary. The plaintiff must carry the heavy burden of showing that the defendant knowingly and intelligently waived his rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). In order to carry its burden at the Walker hearing, the plaintiff introduced the testimony of the interrogating officer to show the requisite elements of waiver. The officer testified, in substance, that he read the Miranda rights individually to the defendant before questioning and that the defendant indicated his understanding of each one. Then, still according to the officer, the defendant said he would talk about the matter. At no time during the ensuing interrogation did the defendant communicate reluctance to talk further, nor did he ask for a lawyer. At the end of 30 minutes of questioning, however, the defendant refused to make a taped statement and 'there could have been some mention of him wanting an attorney before he said any more'. The questioning ceased then.

The defendant took the stand to rebut the officer's testimony. He testified that the officer did not read the Miranda rights to him, but that the officer handed him a card from which he read about half the rights to himself. He testified further that he said he didn't want to talk and wanted to see a lawyer right away. The officer said a lawyer wouldn't matter and kept 'pressing' him to answer questions, which he finally did.

We review the trial court's findings with great difficulty in the face of conflicting testimony. Because the trial court was able to judge the relative credibility of the witnesses before it, however, we give appropriate deference to its findings. 3 Thus the trial court found, and we agree, that the defendant was advised of his Miranda rights and understood them prior to questioning by the police. We find support for this result in defendant's testimony that the police had fully read his rights to him at the time of his arrest, that he knew what the rights card said at the time of his interrogation, and that he attempted to assert his right to remain silent and his right to counsel.

Defendant's more difficult assertion is that he did not waive his rights. The police officer testified that the defendant said 'he would talk to me about the matter' and that he did not request the aid of an attorney. The defendant claims that he repeatedly asked for a lawyer and said that he didn't want to talk, but that the police denied his request and kept pressing him to answer questions. Again the testimony is contradictory. The defendant argues, however, that his refusal to make a taped statement shows that he did not intend to waive his right to remain silent. The failure to make a statement or waiver of rights can be indicative of a refusal to waive one's rights, but is not conclusive proof of that refusal. See United States v. McDaniel, 463 F.2d 129 (C.A.5, 1972); United States v. Nielsen, 392 F.2d 849 (C.A.7, 1968); People v. McClendon, Supra. We must consider all the circumstances of the detention and confession to determine whether the defendant did, in fact, waive his rights.

The evidence presented at the Walker hearing convinces us that the defendant validly waived his rights. 4 A single police officer was alone with the defendant during the questioning. The defendant made no allegations of threats, trickery or physical coercion. The brevity of the interrogation, only about 30 minutes, tends to belie the defendant's testimony that he asserted his rights but that the police officer 'pressed' him sufficiently to cause him to abandon his right to remain silent. Finally, the trial court found the account given by the police to be more credible than that given by the defendant. We find, therefore, that defendant did waive his constitutional rights and that his confession was properly admitted into evidence at trial.

II

In the course of the trial, the prosecutor questioned the police officer who had arrested defendant:

'Q. Now, did you, yourself, take any statement from Mr. Swan after this incident?

'A. No sir.'

After a momentary digression the prosecutor again asked:

'Q. (Mr. Sundquist, resuming): Now after you apprehended these two persons, did you take a statement from either one?

'A. No, sir, we advised them of their rights in the car and at police headquarters; both refused to speak to us.'

Defense counsel objected to this testimony and the trial court sustained the objection. Defense counsel then moved for a mistrial due to the improper admission of the officer's testimony concerning the defendant's exercise of his Fifth Amendment right to remain silent. 5

It was clearly improper for the prosecutor to elicit, and the witness to offer, testimony which indicated that the defendant had exercised his right to remain silent at the time of his arrest. Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694, 720, 10 A.L.R.3d 974, 1007 (1966); People v. Bobo, 390 Mich. 355, 212 N.W.2d 190 (1973); People v....

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