People v. Turner

• Decision Date: 30 September 1970
• Docket Number: No. 1,Docket Nos. 7316,7751,1
• Citation: 26 Mich.App. 632,182 N.W.2d 781
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William V. TURNER, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Andrew KENDRICK, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 781

182 N.W.2d 781

26 Mich.App. 632

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William V. TURNER, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Andrew KENDRICK, Defendant-Appellant.

Docket Nos. 7316, 7751.

Court of Appeals of Michigan, Division No. 1.

Sept. 30, 1970.

Leave to Appeal Denied Dec. 2, 1970 in No. 7316.

Released for Publication Jan. 22, 1971.

Leave to Appeal Denied March 15, 1971 in No. 7751.

Armand D. Bove, Detroit, for Turner.

Andrew Kendrick, in pro. per.

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

Before LESINSKI, P.J., and QUINN and O'HARA, ^* JJ.

O'HARA, Judge.

On the morning of May 21, 1958, an elderly tailor was robbed in his store in the City of Detroit. During the course of the robbery the tailor was struck on the head with a lead pipe. He died from this injury later that day. The robbers fled the building when a customer arrived a short time later. A number of witnesses linked three men as having been together in the immediate vicinity both prior to the robbery and shortly thereafter. These men were identified as Robert Brown, William Turner and Andrew Kendrick. The Detroit police arrested these men within an hour or two of the robbery. Subsequent to these arrests, several questioning sessions were conducted both of the defendants and of the witnesses. At least one line-up was also conducted.

At approximately 1:00 P.M. on May 21, 1958, defendant Turner confessed. At approximately 9:30 P.M. that same day Kendrick confessed. These initial confessions were made informally to members of the police department.

A formal confession by Turner was given to a member of the prosecuting attorney's staff at approximately 1:30 P.M. on May 21. A member of the prosecutor's staff took a formal statement from defendant Kendrick on May 22.

On May 27, 1958, the three defendants were arraigned.

The defendants were tried in December 1958 in a joint trial. During the course of this first trial both the formal confessions and the initial informal statements of Kendrick and Turner were admitted into evidence. Testimony was given by witnesses who had seen the defendants in the area at the time of the robbery. The jury found all defendants guilty of murder in the first degree. ¹ The late Judge Gillis of the Recorder's Court for the City of Detroit sentenced the defendants to life imprisonment.

After sentencing, a series of appellate maneuvers were conducted resulting in this court ordering a Walker hearing for Turner and Kendrick. ² A lengthy (three volumes) hearing was conducted before Judge Gillis's successor and son, Judge Joseph A. Gillis, Jr., in April 1967. Judge J. A. Gillis, Jr., determined that the confessions were voluntarily made and thus admissible.

Subsequent to that determination, Judge Gillis, nevertheless, ordered new trials for Kendrick and Turner. ³ They received separate jury trials before Judge Gillis in December 1968 and January 1969. Both defendants were represented by counsel. As in the initial trial, both men were charged with felony-murder.

During the trial of defendant Kendrick, testimony given by four witnesses at the first trial was read into the record because these witnesses were unavailable. Testimony of two of these witnesses, plus two others, was also read into evidence at defendant Turner's trial. The testimony read into evidence against both defendants was that of two ladies who had seen the defendants in the vicinity of the robbery just prior to and immediately after its occurrence.

Again jury convictions were returned. The jury returned a verdict of guilty of murder in the second degree against defendant Kendrick. Turner's jury found him guilty of murder in the first degree.

Appellate counsel was appointed for both men. However, defendant Kendrick quickly became dissatisfied with counsel, discharged him and has proceeded In propria persona.

On appeal, the defendants have raised several issues. Because they are not always similar, they will be discussed separately.

I. DEFENDANT TURNER:

On the day of the second trial, January 13, 1969, defense counsel and defendant were informed that the information had been amended to include the phrase 'while in the perpetration or attempted perpetration of a robbery.' Defendant charges that this amendment was contrary to the law and in violation of his rights because it charged him with a crime more severe, felony-murder, which is first-degree murder, than that with which he was originally charged, second-degree murder.

The original information, issued in 1958, charged that defendants Turner and Kendrick 'feloniously, wilfully and of their malice aforethought, did kill and murder one Jacob Kogan.' The amended information, issued in 1969, differed from the original only in that it included the phrase, 'while in the perpetration or attempted perpetration of a robbery.'

Defendant alleges that the original information charged murder in the second degree. Defendant thus construes the amendment to effectuate a charge of a different offense with greater punishment.

Turner's contention is without merit. Both informations cited the first-degree murder statute. M.C.L.A. § 750.316 (Stat.Ann.1954 Rev. 28.548). Such a reference by section numbers is expressly authorized by M.C.L.A. § 767.57 (Stat.Ann.1954 Rev. § 28.977).

'In pleading a statute or a right derived therefrom it is sufficient to refer to the statute by its title, or in any other manner which identifies the statute and the court must thereupon take judicial notice thereof.'

Furthermore, the record establishes beyond a doubt that defendant Turner was aware of the crime with which he was charged. At the first trial, Turner was convicted of first degree murder. It was again noted at the Walker hearing that the charge was murder in the first degree.

In addition, defendant challenges certain confessions which he made on the ground that they were made during a period of illegal detention. People v. Hamilton (1960), 359 Mich. 410, 102 N.W.2d 738. A Walker hearing was held in April 1967 for the purpose of determining the voluntariness of the confessions. At that hearing, testimony was offered to the effect that defendant confessed to a police officer and later to an assistant prosecuting attorney, both confessions being made within a few hours after his arrest. It does not appear from the record that there was any detention 'used to coerce a confession.' People v. Farmer (1968), 380 Mich. 198, 205, 156 N.W.2d 504. The fact that defendant was not arraigned until six days after his arrest does not vitiate a confession made so shortly after arrest.

"The duty enjoined upon arresting officers to arraign 'without unnecessary delay' indicates that the command does not call for mechanical or automatic obedience. Circumstances may justify a brief delay between arrest and arraignment, as for instance, where the story volunteered by the accused is susceptible of quick verification to third parties. But the delay must not be of a nature to give opportunity for the extraction of a confession." Farmer, supra, p. 206, 156 N.W.2d p. 507.

Applying this principle to the present case, reversible error did not occur. The confession was not the product of an unduly lengthy delay in arraignment. The principle against delay in arraignment for the purpose of securing a confession was not violated. ⁴ The finding of the trial court at the Walker hearing that defendant's confession was voluntary, is not 'clearly erroneous' and must, therefore, be affirmed. People v. Walker (1967), 6 Mich.App. 600, 149 N.W.2d 912.

Defendant Turner's final objection is to the use of a transcript from the first trial. During the second trial the transcript of testimony of two witnesses, who appeared at the first trial, was read into evidence. The record establishes that the prosecutor's office, as well as the police department, went to some length to try to locate these two witnesses. However, their efforts were of no avail. Defendant suggests that the testimony of these witnesses was prejudicial because it related extensively to the activities of his accomplices. He argues that the jury could have inferred, from the criminal activities of his accomplices, criminal activity on his own part.

The use of the transcript of testimony taken at a prior trial is permitted by statute:

'Testimony taken at an examination, preliminary hearing, Or at a former trial of the case, or taken by deposition at the instance of the defendant, May be used by the prosecution whenever the witness giving such testimony can not, for any reason, be produced at the trial, or whenever the witness has, since giving such testimony become insane or otherwise mentally incapacitated to testify.' M.C.L.A. § 768.26 (Stat.Ann.1954 Rev. § 28.1049). (Emphasis supplied.)

Reversible error did not occur in defendant Turner's second trial.

II. DEFENDANT KENDRICK

Defendant Kendrick has filed a brief in his own behalf. He raises several issues which for the purpose of this opinion have been consolidated.

He argues initially that the court committed prejudicial error in admitting the confessions of his co-defendants. At the first trial, Lieutenant Ware testified that he had told the defendant that 'his two friends admitted this hold-up together.' At Kendrick's second trial, a transcript of Ware's testimony at the first trial was read into evidence pursuant to a stipulation by defense counsel. The prosecutor, in his closing argument in the second trial, referred to this statement by saying, 'Lieutenant Ware said, 'Mr. Brown and Mr. Turner have confessed and implicated you."

We quote the trial transcript:

'Mr. Burke, (defense counsel): Your Honor please, I have to object at this point. That's not indicative.

'There is nothing in here that Ware says...