People v. Weatherspoon

• Decision Date: 10 November 1988
• Docket Number: Docket No. 92188
• Citation: 431 N.W.2d 75,171 Mich.App. 549
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bruce WEATHERSPOON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 75

431 N.W.2d 75

171 Mich.App. 549

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bruce WEATHERSPOON, Defendant-Appellant.

Docket No. 92188.

Court of Appeals of Michigan.

Submitted Dec. 3, 1987.

Decided Sept. 19, 1988.

Released for Publication Nov. 10, 1988.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal Div., Research, Training and Appeals, and Jan J. Raven, Asst. Pros. Atty., for People.

John D. Lazar, Royal Oak, for defendant-appellant.

Before SULLIVAN, P.J., and CYNAR and TAYLOR, ^* JJ.

TAYLOR, Judge.

Defendant was charged with armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and convicted of unarmed robbery, M.C.L. Sec. 750.530; M.S.A. Sec. 28.798, after a November, 1985, jury trial in Detroit Recorder's Court. He received a sentence of three to fifteen years imprisonment with credit for thirty-three days served. Defendant takes this appeal as of right from his conviction and sentence.

The incident giving rise to defendant's conviction occurred near a Detroit intersection at approximately 1:15 a.m. on July 2, 1985. Two men carrying guns approached the victim, grabbed her purse, and ran back to a car which then drove away. The victim flagged down a police car and described her assailants' vehicle. A few minutes later the police car pulled behind the vehicle described by the victim.

One of the officers at the scene testified that when he first saw the car described by the victim it contained two male occupants and was letting off two other men. Defendant jumped from the driver's seat to the back seat when the patrol car's flashers were activated. The officer confiscated a .32 caliber revolver from the glove box of the vehicle and the victim's purse from the front seat. A second gun was found on a nearby lawn.

Defendant testified at trial that he neither drove the car nor robbed the victim. He stated that he was in the back seat with his cousin when the driver pulled over and got out of the car with another man who had been in the front seat. He stated that these two men robbed the victim. When the men returned to the car, defendant saw that one of them had a gun and the other a purse. Defendant denied jumping from the front to the back seat when he saw the police car.

Defendant's appeal is based on the following arguments:

1. The trial court erroneously admitted defendant's signed confession at trial without determining whether it was voluntary.

2. The trial court should have instructed the jury on attempt.

3. The prosecutor improperly transformed the trial into a guilty plea situation by questioning defendant as to whether a robbery actually occurred.

4. The prosecutor's closing remarks were so prejudicial that a new trial is warranted.

5. The trial court improperly excused a juror.

6. Defendant was denied due process by the cumulative effect of the foregoing errors.

7. The trial court failed to sentence defendant for the offense of which he was convicted.

We remand for a hearing on the voluntariness of defendant's signed confession. Defendant's other objections are without merit.

I

A hearing on the voluntariness of defendant's confession is required.

Defendant testified at trial that one of the arresting officers choked him and beat him on the back of the legs with what he thought was a flashlight. He was put into a jail cell for four or five hours after his arrest, but was too sore to sleep. Defendant further testified that on the morning of July 2 Police Sergeant Leo Stebbins brought him from his cell to sign a paper. When defendant asked what he was signing, the sergeant replied: "Don't ask any questions, mother fucker. Just sign that." Defendant stated that he signed the paper because he had been beaten and was afraid. He stated that Stebbins "was threatening my life." Stebbins then took defendant back to his cell, but brought him out again a short time later to sign another confession. Defendant denied telling Stebbins anything that was in either of the signed statements.

Sergeant Stebbins testified that, after reading and signing a constitutional rights certification form, defendant confessed to driving the car and pulling off after one of the other passengers committed the robbery. Stebbins then informed defendant that he would be placed in a showup. Upon learning of the showup, defendant wanted to change his statement. In a second confession, defendant stated: "I got out of the car with Andre and took the lady's purse while he held a gun on her."

At a hearing pursuant to People v. Walker (On Rehearing), 374 Mich. 331, 132 N.W.2d 87 (1965), the trial court refused to rule on the voluntariness of defendant's statements and admitted them as evidence at trial. The court stated, "If there is a denial that the statement is his, then there is nothing ... that the Court may properly rule on.... The question then becomes a matter of fact for the jury."

The question whether a statement was made is separate from a determination of voluntariness. People v. Spivey, 109 Mich.App. 36, 37, 310 N.W.2d 807 (1981). Both issues are questions of fact. Although questions of fact are normally left to the jury to decide, our Supreme Court created an exception to this general rule in People v. Walker, supra. Walker delegates the determination of voluntariness to the trial court in order to avoid submitting the issue to the same jury which tries the defendant's guilt or innocence. People v. Spivey, supra; People v. Walker, supra, 374 Mich. at 333, 132 N.W.2d 87. All other fact issues relevant to the weight and credibility of a defendant's statement are left to the jury. Id., 374 Mich. at 337, 132 N.W.2d 87.

Thus, in People v. Spivey, supra, and People v. Washington, 4 Mich.App. 453, 455, 145 N.W.2d 292 (1966), this Court held that it is not error for the trial court to deny a Walker hearing where a defendant contests the fact of a statement rather than its voluntariness. In light of these opinions, the trial court in the instant case was justified in its failure to rule on the issue of voluntariness. A ruling on voluntariness would have presupposed the fact that defendant made the statements in question. Such presupposition would have been improper because defendant here has denied making any statements to the police. The question whether defendant made the statements was correctly left to the jury to decide in this case.

The jury was instructed that it had to determine whether defendant in fact confessed, and its verdict implies its finding that defendant made inculpatory statements to the police. However, the question of voluntariness remains unanswered and we remand for a hearing to decide the issue. If the trial court determines that defendant's statements were coerced, they should be suppressed and a new trial granted. Otherwise, the jury's verdict should be upheld, as no further grounds for reversal are presented here.

II

The evidence does not support a jury instruction on attempt.

At the close of proofs, the jury was instructed on armed robbery, assault with intent to rob being armed, assault with intent to rob being unarmed and unarmed robbery. The court also instructed on the theory of aiding and abetting. Counsel's request for an instruction on attempted armed robbery was refused.

An instruction on attempt need not be given unless there is evidence, or on jury view a lack of evidence, indicating that only an attempt was committed. People v. Adams, 416 Mich. 53, 59, 330 N.W.2d 634 (1982). This is because neither an attempt to commit an offense nor all its elements are elements of the completed offense. Id., 416 Mich. 58-59, 330 N.W.2d 634. Here, there was no evidence to suggest that a robbery was merely attempted; in fact, the evidence is overwhelming that a completed robbery took place. Accordingly, we find no error in the trial court's refusal to instruct on attempt.

III

The prosecutor did not improperly question defendant on the

ultimate issue of guilt.

Defendant asserts that the prosecutor transformed his trial into a guilty plea situation in the following exchange:

"Q. Sir, Mr.--your Defense Attorney, he used the phrase 'alleged rape'--'alleged robbery.' This was no alleged robbery. This was a robbery, wasn't it?

"A. Yes.

"Q. There is nothing alleged. The woman was robbed, right?

"A. Yes.

"Q. Robbed at gunpoint?

"A. Right.

"Q. Right?

"A. Right."

Because the jury is entrusted with the duty to decide criminal responsibility, the prosecutor may not question a defendant on the ultimate issue of guilt. People v. Bragdon, 142 Mich.App. 197, 199, 369 N.W.2d 208 (1985). Here, the prosecutor's questions focused on whether an armed robbery took place, not on whether defendant participated in the robbery. We find no impropriety, as the questioning did not concern the issue of defendant's guilt.

IV

The prosecutor's closing remarks do not warrant reversal.

Defendant asserts that the prosecutor's closing remarks injected facts not of record, denigrated his defense, appealed to the jury to sympathize with the victim and suggested that the jury had a civic duty to convict. Defendant raises his objections for the first time on appeal with respect to all but one of the contested remarks.

Defendant objected at trial to the prosecutor's statement that "[t]hey are driving around looking to stick somebody up," protesting that the statement contains facts not of record. We disagree. In People v. Viaene, 119 Mich.App. 690, 696-697, 326 N.W.2d 607 (1982), this Court held that the prosecutor may draw inferences from the evidence presented at trial. Here, the prosecutor's statement was a reasonable conclusion drawn from testimony at trial that defendant was picked up by his companions at 10:30 or 11:00 p.m. on July 1, and spent the next few hours driving continuously with a gun in the car. Moreover, Sergeant Stebbins testified that, in his confession, defendant described a statement...