People v. Toler, Docket No. 13216--7

• Decision Date: 22 February 1973
• Docket Number: No. 1,Docket No. 13216--7,1
• Citation: 45 Mich.App. 156,206 N.W.2d 253
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerome TOLER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 253

206 N.W.2d 253

45 Mich.App. 156

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerome TOLER, Defendant-Appellant.

Docket No. 13216--7.

Court of Appeals of Michigan, Division No. 1.

Feb. 22, 1973.

Released for Publication April 19, 1973.

Paul R. Jackman, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., David H. Wolock, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and J. H. GILLIS and PETERSON, ^* JJ.

LESINSKI, Chief Judge.

In two separate trials defendant was found guilty of assault with intent to commit rape, M.C.L.A. § 750.85; M.S.A. § 28.280, and armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797. He was sentenced to prison terms of from 9 to 10 years and from 10 to 20 years respectively. He appeals as of right.

While these appeals involve two separate convictions for different crimes, both appeals involve a single issue--the admissibility of a statement made at the time of defendant's arrest and before any Miranda ¹ warnings were given. Since the substantive evidence of the crimes is not at issue, it will suffice to say that both crimes and the arrest took place within a 15- to 20-minute period on the evening of May 18, 1970. It should also be noted that the second crime (the armed robbery) took place about three blocks from the location of the first crime.

Facts pertinent to the issue on appeal are simply stated. Two Detroit police officers, Officer Ludlow and Officer Cochrane, while on patrol-car duty in the vicinity of Collingwood and Second Avenue in Detroit, observed a woman yelling. They also observed a man running--carrying a purse in his left hand and a pistol in his right hand. They drove the scout car onto the sidewalk and into the path of the fleeing man. The man ran into the car, fell down and dropped the purse, jumped up and continued running. Officer Ludlow pursued the man on foot; ordered him to stop; and when he failed to do so, the officer fired two shots. The second of the two shots struck the man as he jumped over a fence enclosing a back yard of a house. The officer arrested defendant as he lay in the back yard, wounded in the arm, patted him down in a search for weapons, and handcuffed him. When the officer could not find the weapon, he asked defendant where the gun was. The officer testified that defendant answered that he had dropped the gun when he was shot. The gun was subsequently found by the fence. In both cases the gun was admitted into evidence, along with the testimony regarding defendant's statement. In both cases there was an objection as to the admissibility of defendant's statement. In both cases defendant took the stand and denied making any such statement.

There is a discrepancy in the testimony of the officer. At the first trial, on the armed-robbery charge, the officer testified that he patted down defendant, handcuffed him, took him back to the scout car, and then questioned him as to the whereabouts of the gun. The officer testified that defendant answered that he had dropped the gun when he jumped over the first fence. At the second trial, on the assault charge, the officer indicated he asked the question while defendant was still on the ground, after the pat-down and handcuffing. Defendant allegedly answered that he dropped the gun when he was shot.

Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966), held:

'(T)he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.'

There is no dispute here concerning the issue of custody or lack of Miranda warnings. The defendant had been shot, handcuffed, and patted down for weapons; he was in custody. No warnings were given. However, there is a serious question as to whether this was the type of interrogation that Miranda was intended to cover.

Generally, the police cannot ask an arrested suspect any questions without first warning him of his constitutional rights. The case at bar is, however, a limited exception to this general rule. People v. Ramos, 17 Mich.App. 515, 518, 170 N.W.2d 189, 191 (1969), spoke to this issue in light of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968):

'The police were not obligated to advise the defendant of his constitutional rights before making an effort to disarm him to prevent him from injuring the police officers or someone else present. Police officers are not required to take unnecessary risks in the performance of their duties.'

In Ramos defendant's wife had told the police that defendant had a gun, with which he had threatened her. The police approached defendant in a bar and asked, 'Where is the gun, John?' Defendant responded that it was in his belt. Both the conversation and the weapon were properly admitted at this trial for carrying a concealed weapon.

The facts in the case at bar are somewhat different. Here the police knew defendant had had a gun because they saw it in his hand when he ran into the scout car. Defendant had not stopped when ordered to by the police but instead had tried to escape. Defendant was under arrest when questioned. Defendant was not as dangerous to the police when questioned as Ramos potentially was because defendant had already been wounded, handcuffed, and patted down for weapons before the question was asked. This difference of facts does not, however, necessarily dictate a different result.

State v. Lane, 77 Wash.2d 860, 861--862, 467 P.2d 304--306 (1970), is on point:

'Lane and a woman were standing in the apartment living room when the officers entered, identified themselves, and told Lane he was...