People v. Tucker

• Citation: 172 N.W.2d 712,19 Mich.App. 320
• Decision Date: 01 October 1969
• Docket Number: No. 2,Docket No. 5019,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Wayne TUCKER, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 712

172 N.W.2d 712

19 Mich.App. 320

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Wayne TUCKER, Defendant-Appellant.

Docket No. 5019.

Court of Appeals of Michigan, Division No. 2.

Oct. 1, 1969.

Released for Publication Dec. 17, 1969.

William R. VanderKloot, Birmingham, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Thomas G. Plunkett, Jr., Pros. Atty., Oakland County, Pontiac, for plaintiff-appellee.

Before LESINSKI, C.J., and QUINN and DANHOF. JJ.

DANHOF, Judge.

The first trial of defendant ended in a mistrial for reasons not presently relevant. The second trial resulted in a jury conviction of rape ¹ and a sentence on November 9, 1966 of 20 to 40 years imprisonment. The defendant has brought this appeal alleging 8 errors of law which will be discussed seriatim following a recapitulation of the essential facts.

On April 19, 1966, the victim did not report for work and a male co-worker and friend, Luther E. White, telephoned her home to ascertain the reason for her absence. Receiving no answer, he went to her home in Pontiac township and discovered the victim tied, gagged, and brutally and bloodily beaten. She was partially disrobed and incoherent. The house was in a general and bloody disarray. The victim was 43, had never been married, and lived alone. Neither then nor later could she recall what had happened to her, nor could she identify the defendant.

A dog was in the home at the time Mr. White entered, although to his recollection the victim owned no dog. He testified that the dog later got out of the house. Shortly thereafter White was reporting the above facts to an Oakland county sheriff's deputy at the scene when he saw the same dog. The deputy followed the dog to a home, approximately 900 feet away on a zig zag course, where the dog sat down in the front yard. Finding no one at home, the deputy checked with a neighbor who told him that the defendant and his relatives lived at the house and that the dog belonged to them, and that defendant drove a red 1959 Ford. The deputy telephoned his information to the sheriff's department about noon.

At 4:00 p.m. that day officer Lindberg of the Pontiac police department telephoned the Oakland county sheriff's department and learned of the crime from an unnamed person, and that a certain named suspect was driving a red 1959 Ford. At approximately 9:00 p.m. the same day, officer Lindberg saw a red 1959 Ford automobile leaving the city and entering Pontiac township. The officer had no knowledge of defendant's physical description and had not observed any traffic violation, but he ordered the car to stop and demanded the driver's license of the operator, who was the defendant. The officer noted that the last name on the license was the same as that given him by the sheriff's department, but that the first and middle names were reversed. The defendant was taken to the sheriff's department where scratches were observed on his face and blood on his clothes, including his underclothing.

Defendant was advised of his right to remain silent and related matters, but he was not advised that he had a right to a court appointed attorney if he was too poor to afford one himself. He was interrogated and said that at the time that the crime was committed he was with Robert Henderson. When contacted, Henderson stated that the defendant was not with him at the time defendant claimed and that defendant's scratched face was not from a goose that Henderson and defendant had shot, as defendant claimed, since defendant already had these scratches on his arrival at Henderson's. Additionally, Henderson stated that he had asked the defendant if he had 'got hold of a wild one,' and defendant responded that it was a 'widow woman, or something like that' about in her thirties, who lived the next block over.

The existence of the scratches on defendant's face was corroborated by his work foreman to whom he had said, as he did to the police, that they were from the flailing of a goose.

A staff physician at Pontiac General Hospital determined that the victim needed extensive sutures in her vaginal area, that sperm was present inside her vagina, and that she had a recently ruptured hymen.

Defendant has been represented at the trial and on appeal by able court appointed counsel.

The issues raised and our resolution of them follow:

1. May testimony of a prosecution witness be taken where the identity of that witness was discovered solely through an interrogation of the defendant which did not meet the standards of the United States Supreme Court case of MIRANDA v. ARIZONA?

At the time of defendant's interrogation on April 19, 1966, he was advised of his rights as delineated by Escobedo v. Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. Defendant did not request the presence of an attorney during his interrogation and no claim is made that his rights under Escobedo were violated.

Almost two months After defendant was questioned, the United States Supreme Court decided on June 13, 1966 in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, that any statements of a defendant obtained during custodial interrogation would be excluded from evidence at trials unless certain warnings or information had been given prior to the interrogation, including the information that the defendant was entitled to a court appointed attorney if he could not afford to hire a lawyer.

One week after Miranda was decided, the case of Johnson v. New Jersey (1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, held that Miranda would apply only to trials commenced after the decisional date of Miranda, June 13, 1966. Since defendant Tucker's trial began on October 18, 1966, the Miranda decision applied to his trial and accordingly The statements that the defendant made during the interrogation were excluded from evidence at his trial.

We are now presented with the question of whether the exclusionary rule enunciated in Miranda, supra, should be extended to include the application of the 'fruit of the poisonous tree' doctrine to evidentiary leads obtained from interrogations which were apparently legal at the time of their occurrence, but nevertheless fall into that limbo created by Johnson, supra, due to the fact that such interrogations, occurred before the decisional date of Miranda, but involved cases that went to trial after the decisional date of Miranda.

The earliest application of the 'fruit of the poisonous tree' doctrine listed in 8 Wigmore, Evidence McNaughton Revision 1961 § 2184a, p. 40 was in Silverthorne Lumber Company, Inc. v. United States (1920), 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319. The case concerned an illegal seizure of books, papers, and documents, portions of which federal agents photographed before returning. Justice Holmes writing for the court said:

'The proposition could not be presented more nakedly. It is that although of course its seizure was an outrage which the Government now regrets, it may study the papers before it returns them, copy them, and then may use the knowledge that it has gained to call upon the owners in a more regular form to produce them; that the protection of the Constitution covers the physical possession but not any advantages that the Government can gain over the object of its pursuit by doing the forbidden act. Weeks v. United States (1914), 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177 to be sure, had established that laying the papers directly before the grand jury was unwarranted, but it is taken to mean only that two steps are required instead of one In our opinion such is not the law. It reduces the Fourth Amendment to a form of words. 232 U.S. 393, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177. The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.'

In another leading case Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, the exclusionary rule expressed in Silverthorne, supra, was extended to verbal statements as well as to tangible materials, the court finding no logical distinction between the two for the purpose of deterring illegal search and seizure by law enforcement personnel.

The Federal Court of Appeals for the District of Columbia has set forth guidelines applicable to our case in McLindon v. United States (1964), 117 U.S.App.D.C. 283, 329 F.2d 238, as follows:

'In each case the court must determine how great a part the particular manifestation of 'individual human personality' played in the ultimate receipt of the testimony in question. Indications in the record that mere knowledge of the witness' identity would not inevitably guarantee that his testimony would be favorable to the prosecution; that the witness might eventually have voluntarily gone to the police even without their knowing his identity; that his testimony has remained unchanged from the start--all are relevant factors to be considered in determining the final outcome.'

The defendant urges us that the rule to be applied in our case is the rule applied in People v. Peacock (1968), 29 A.D.2d 762, 287 N.Y.S.2d 166, 167--168:

'Defendant was tried on July 13, 1966, subsequent to the decision in Miranda * * * and hence his inculpatory statements, made without the warnings which Miranda requires, were inadmissible in evidence * * *. In point of fact, defendant's statements were not used against him at the trial. He urges, however, that absent his statements the owner of the property (who testified at the trial) would not have been known and the identification of the articles seized could not have been made. In short, he argues that the proof against him at the trial was the tainted fruits (sic) of the illegally obtained statements.

'If,...