People v. Tubbs

• Decision Date: 25 March 1970
• Docket Number: Docket No. 6816,No. 3,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene TUBBS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 622

177 N.W.2d 622

22 Mich.App. 549

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene TUBBS, Defendant-Appellant.

Docket No. 6816.

Court of Appeals of Michigan, Division No. 3.

March 25, 1970.

Released for Publication June 26, 1970.

Gordon A. Doherty, Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Wesley J. Nykamp, Chief Appellate Atty., Donald A. Johnston, III, Asst. Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and DANHOF and ROOD, JJ. ^*

HOLBROOK, Judge.

Defendant was tried in the circuit court of Kent county on September 9, 1968 before the Honorable Claude Vander Ploeg, was found guilty of murder in the second degree by the jury; and was sentenced to life imprisonment. M.C.L.A. § 750.317 (Stat.Ann.1954 Rev. § 28.549).

The facts surrounding the murder are:

On July 14, 1967 defendant registered at a hotel in Grand Rapids. Defendant planned to return to the room later after celebrating his birthday. At about 9:30 p.m., accompanied by his fiancee, Rosie Hardges, defendant returned to the hotel room. An argument ensued which grew more violent finally terminating in defendant strangling the victim to death with a lamp cord. Defendant then filled the bathtub with water and placed the body face down in the tub.

Defendant left the hotel and later returned to Miss Hardges' house where he told her parents that she had left him at the theatre, and he had not seen her since. He filed a missing persons report with the Hardges' family and then helped them look around Grand Rapids for the victim.

On the morning of July 15, 1967, defendant's parents drove him back toward Great Lakes Naval Training Center, where he was stationed at the time. While driving on the Illinois Interstate, defendant told his parents that he thought something had happened to Miss Hardges and that he wanted to tell the police. They stopped outside Waukegan, Illinois, and defendant surrendered to the Illinois State Police.

The defendant raises eight issues on appeal which are restated and dealt with in order.

(1) Whether defendant's confession to the Illinois authorities was in conformity with the requirements of Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

Defendant contends that he was not fully advised of his constitutional rights prior to making a confession to the Illinois State Police officer as required by Miranda. The waiver of his rights was embodied in the trial court record:

'I, Eugene Tubbs, hereby state that I have been advised by Corporal Donald D. Trent, who has identified himself as an Illinois State Police Officer that I have a right to remain silent and that I need not say anything to him or to any other law enforcement officer if I do not desire, and that I need not answer any questions, that in the event that I answer any questions the answers that I give can be and may be used as evidence against me. I have further been advised by the officer that I have a right to have a lawyer present at this time and before or during any questioning hereafter by any law enforcement officer. I have further been advised that if I cannot afford a lawyer to be present to be before or during any questioning, a lawyer will be provided for me. Having been advised as above and understanding that I have these rights I hereby freely and voluntarily waive them. Dated at Illinois Interstate 294 this 15th day of July, A.D. 1967. Signature Eugene Tubbs, witness' statement. Mine, Corporal Donald D. Trent and Trooper Williams, 916.' Trial Transcript, Vol. 1, pp. 12--13.

Defendant contends that he was not fully advised of his constitutional rights because he was not advised that interrogation would cease at his request. In support of this position defendant cites People v. Jourdan (1968), 14 Mich.App. 743, 165 N.W.2d 890. The brief opinion of this court was as follows:

'Per Curiam. Defendant was tried by a jury on April 12 and 13, 1967 and convicted of breaking and entering, M.C.L.A. § 750.110 (Stat.Ann.1968 Cum.Supp. § 28.305). Thereafter, he was sentenced. His appeal attacks the admission of his oral confession at trial.

This attack is based on the following facts: Defendant was questioned by the police October 5, 1965, at which time he was advised of his right to remain silent, that anything he said could and would be used against him in court, that he was entitled to an attorney and an attorney would be furnished to him if he could not afford to employ one. Defendant was not advised that interrogation would cease at his request and that he was entitled to counsel during interrogation, as required by Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Johnson v. New Jersey (1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, made Miranda applicable to trials commenced after June 13, 1966.

Although the trial court determined defendant's confession voluntary and admissible after a Walker hearing, this Court is bound by the Miranda doctrine. People v. Whisenant (1968), 11 Mich.App. 432, 161 N.W.2d 425. Reversed and new trial ordered.'

The people argue that Miranda does not require the authorities to specifically advise a person in custody before questioning that interrogation will cease at his request. Likewise the people assert that Jourdan misconstrued the ruling of Miranda because the Miranda holding does not require that the accused be specifically and separately advised before he is questioned that interrogation will cease at his request.

Miranda as interpreted in People v. Whisenant, Supra, required defendant to be warned of his constitutional rights including the right to have counsel, retained or appointed, present during the questioning and the giving of his statement, but did not rule so as to require a further warning that the interrogation would cease at his request. After a careful reading of Miranda we conclude that the constitutional warnings given to the defendant prior to the making of his confession satisfied the requirement of Miranda, supra.

Miranda, at 384 U.S. 473, 474, 86 S.Ct. 1627--1628, reads in part:

'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. At this point he has shown that He intends to exercise his Fifth Amendment privilege; any statement taken After the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.' (Emphasis supplied.)

We conclude that the foregoing reference to the fact that whenever an individual Indicates his desire to remain silent, the questioning must cease, is a rule to govern the conduct of the proceedings and is not the setting out of a special warning requirement. The subject's warning requirements at that point concerning his right to remain silent have already been given.

We consider the Jourdan per curiam decision as dictum insofar as it states: 'Defendant was not advised that interrogation would cease at his request * * * as required by Miranda,' because it was unnecessary in deciding the case to rule on this aspect of the matter.

People v. Woods (1969), 382 Mich. 128, 169 N.W.2d 473 appears to have set the rule in Michigan to confine Miranda to its precise command. By our decision herein, we apply Miranda as we understand its precise command.

Whether the jury was precluded from finding that defendant was sane at the time of the homicide because defendant produced two medical witnesses at trial whose testimony conflicted with that of the medical witness called by the people on the issue of sanity.

Defendant contends that the evidence submitted to the jury was overwhelming that he was mentally incompetent and that the jury disregarded such preponderance of the evidence in arriving at their verdict. Defendant cites neither evidence nor authority for his argument.

At trial, three medical witnesses testified concerning defendant's mental condition. The two experts testifying for defendant stated that in their opinions he was suffering from various mental disorders. The expert witness called on behalf of the People testified that in his opinion, defendant was sane. Thus evidence was presented on both sides of the sanity issue and the expert testimony was conflicting. It was a jury question and the jury determined that defendant was sane and found him guilty. It was not error for it to do so. ^* As stated in 2 Gillespie, Michigan Criminal Law and Procedure, § 630, p. 816:

'It is the sole province of the jury to pass upon conflicts in the testimony. The question of the sufficiency of the evidence is likewise for the jury, unless there is no evidence at all upon material points. * * * It is the province of the jury to determine the credibility of all witnesses, and it may believe one witness as against many. The weight of testimony does not necessarily depend upon the number of witnesses.'

More importantly and more specifically, the Supreme Court has held, in People v. Krugman (1966), 377 Mich. 559, 563 141 N.W.2d 33, 35, that the issue of the accused's sanity is to be determined solely by the jury when conflicting evidence is presented:

'The jury is the ultimate judge of defendant's sanity at the time of the crime, and in this case, since it had before it evidence of defendant's behavior and state of mind upon the basis of which it could have found defendant sane at that time, it was not bound by the expert opinion testimony of the doctor.'

Based upon the above cited authorities, there was no error in the finding by the jury that defendant was sane at the time of the homicide.

(3) Whether the trial judge committed error by permitting the trial to continue in Grand Rapids after the potential jurors were allegedly exposed to what defendant now asserts constituted prejudicial pretrial publicity in the...