People v. Townsend

• Decision Date: 23 April 1969
• Docket Number: No. 2,Docket No. 5904,2
• Citation: 169 N.W.2d 357,17 Mich.App. 267
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Earl TOWNSEND, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 357

169 N.W.2d 357

17 Mich.App. 267

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Earl TOWNSEND, Defendant-Appellant.

Docket No. 5904.

Court of Appeals of Michigan, Division No. 2.

April 23, 1969.

Released for Publication July 29, 1969.

Howard W. Patch, Anderson, Patch, Potter & Patch, Jackson, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Bruce A. Barton, Pros. Atty., Jackson County, Jackson, for appellee.

Before McGREGOR, P.J., BURNS, R. B. and DANHOF, JJ.

DANHOF, Judge.

On June 6, 1968 defendant was found guilty by a jury of having committed murder in the second degree, C.L.1948, § 750.317 (Stat.Ann.1954 Rev. 28.549) and was sentenced to life imprisonment.

Defendant's formal education terminated while in the ninth grade; he was 18 years of age at the time of his arrest, and had previously been given an undesirable discharge from the military service.

He appeals, questioning whether he effectively waived his right to have counsel present during police custodial interrogations.

A Walker hearing ¹ was held on May 23, 1968 and after extensive testimony, the judge found:

(On Rehearing)

'Well, based upon the evidence presented to the Court, the Court makes a finding that the Defendant herein, Robert Earl Townsend, was advised of his constitutional rights as set forth in the Miranda case. And that after being so advised, he freely, voluntarily and understandingly waived his rights in any admissions that came thereafter would be admissible in evidence.'

Findings of fact are not set aside on appeal unless clearly erroneous. In the application of this principle, regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it. GCR 1963, 517.1; People v. Walker (1967), 6 Mich.App. 600, 149 N.W.2d 912.

According to testimony presented at the Walker hearing, detectives Utz and O'Shaughnessy of the Jackson city police department arrested defendant at approximately 11:30 P.M., December 13, 1967, at a tavern, and immediately transported him Via car to the police station. O'Shaughnessy testified that while inside the bar he advised defendant

'of his constitutional rights, that he did not have to say anything, anything he said could be used against him; if he could not afford an attorney, and attorney would be supplied by the county, and that did he want an attorney present.'

He testified further that defendant

'advised me that he did not know anything of the matter; that he would be willing to go to the police station with us, and answer any questions concerning this matter.'

Relative to what happened En route to the station, O'Shaughnessy testified that

'Mr. Townsend offered explanations as to where he was tonight. We advised him to be quiet, that we did not wish to question him at this time, and he remained silent.'

O'Shaughnessy testified further that on arrival at the station defendant

'was taken to the Detective Bureau, and seated at a desk. At this time he was offered Form A, otherwise known as Recognition of Rights Form, the rights form was read to him. He again read it. I asked him if he understood such form, he advised me that he did. I asked him if he wanted an attorney present during any questioning. He stated that he did not at this time, unless he was able to talk to his mother.' ²

Counsel then asked, 'What happened then, please?'

O'Shaughnessy replied,

'I asked him if he would sign such a form, and he said no, he would not sign it. He would answer any questions, but he would not sign it until he contacted his mother. We offered a telephone to call his mother, and he stated that it was too late in the morning (sic), that he would wait until morning to call her.'

Counsel then asked, 'What did he say about answering questions again, please?'

O'Shaughnessy replied,

'That he would gladly answer any questions as he did not know anything about this matter.'

Counsel continued, 'Was he then asked any questions?'

O'Shaughnessy replied,

'No sir.'

This was the critical moment in the proceedings. It is defendant's contention that he did not waive his right to counsel at this time. Subsequently, defendant was taken to a State police post where a breath analyzer test was administered. O'Shaughnessy testified that on the return trip defendant volunteered, 'that he did not know anything about killing a woman.' It is this statement that defendant claims was extremely prejudicial testimony to the accused's case since it was made before the accused was informed of the sex of the homicide victim. It is the further contention of the defendant that the trial court committed reversible error in allowing such testimony to be admitted.

Defendant relies heavily on the landmark case of Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Excerpts from that case which have particular relevance to the instant case follow:

'Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the 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. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned * * *.'

'An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given. The accused who does not know his rights and therefore does not make a request may be the person who most needs counsel * * *.

'Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right * * *.

'Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease * * *.

'If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. State of Illinois, ...