People v. Whisenant, Docket No. 2847
Decision Date | 27 May 1968 |
Docket Number | Docket No. 2847,No. 3,3 |
Citation | 11 Mich.App. 432,161 N.W.2d 425 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert T. WHISENANT, Defendant-Appellant |
Court | Court of Appeal of Michigan — District of US |
Smith, Haughey & Rice, by James E. Gould, Grand Rapids, for appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, James K. Miller, Pros. Atty., Kent County, Grand Rapids, for appellee.
Before HOLBROOK, P.J., and QUINN, and McINTYRE, JJ.
Defendant, age 19, represented by court appointed counsel, was found guilty of robbery armed 1 by a jury on June 27, 1966, in the Kent county circuit court. He was sentenced on July 18, 1966, to a prison term of 7 1/2 to 15 years.
In appealing his conviction, defendant asserts that his written confession was involuntary and inadmissible at trial because he was not advised of his right to counsel as required by the rule of Miranda v. State of Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The transcript of a Walker hearing 2 held prior to trial to determine the voluntariness of defendant's written statement discloses the following pertinent facts: On February 2, 1966, defendant was contacted at his place of employment shortly after noon by 2 detectives of the Grand Rapids police department and defendant's probation officer. He was taken into custody and informed of his rights in the following manner:
(Detective Woronko on direct examination)
'Q. You had a conversation with him (defendant) at that time (the time of arrest)?
'A. Yes sir.
'Q. Would you please relate that conversation?
'A. He was seated in the back seat, I told him at that time, that he was under arrest for armed robbery, and that the crime happened on December 21, of 1965, that he was entitled to an attorney, that if he could not afford an attorney the court would appoint an attorney. That he did not have to talk to us, say even one word. Also that anything he said could be used for or against him. And also that we could not make him any promises or any threats.
'Q. Did he say anything at that time?
'A. No sir.
'Q. Where did you go from there?
'A. We proceeded to the city jail, basement of the police headquarters.
'Q. What occurred there?
'A. Together with the turnkey we booked him for armed robbery.
'Q. Did you have a conversation at that point?
'A. Yes sir.
'Q. What was that?
'A. I asked him if he cared to go upstairs and talk to me. He said what for, I said well why don't you come up and I will show you the evidence I have got against you. He said okay so we went upstairs to the second floor.
'Q. What did you do when you got up there?
'A. When we got upstairs I let him sit at the desk. I looked up the file on this Crystal Flash armed robbery case. I brought the package back to the desk, filed through it, found what I wanted and I came up with a composite picture, which is a drawing that was made by the victim, put together this composite picture of this man, I showed it to him. And he took a look at it, and he said well I might as well tell you I did it. Then I asked him if he would mind giving this to me in a written statement. Then he said okay. I asked him how far he went to school, and I don't remember exactly what he said but I told him it would be just like writing a story, a composition, and he agreed to do this which he did. * * *
(Detective Woronko on cross-examination)
Defendant then testified to the events which took place after his arrest:
* * *
At the conclusion of the Walker hearing, the lower court found defendant's statement to have been voluntarily given and therefore admissible in evidence at trial.
The substance of defendant's contentions are (1) the officers failed to inform defendant at any time that he was entitled to have counsel present with him during custodial questioning and (2) the officers failed to repeat the 'Miranda warnings' initially given defendant in the car immediately prior to obtaining defendant's written statement.
Miranda v. State of Arizona, supra, states in part on pp. 470, 471, 472, 86 S.Ct. p. 1625, 1626:
'The need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, But also to have counsel present during any questioning if the defendant so desires. * * *
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People v. Mathews, 339079
...warnings did not sufficiently convey a suspect's right to the presence of an attorney during questioning. People v. Whisenant , 11 Mich. App. 432, 434, 437, 161 N.W.2d 425 (1968). See also People v. Hopper , 21 Mich. App. 276, 279, 175 N.W.2d 889 (1970) ; People v. Jourdan , 14 Mich. App. 7......
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People v. Mathews
...state courts. Ultimately, the Court of Appeals majority decided to follow its own prior decisions, see, e.g., People v. Whisenant , 11 Mich. App. 432, 434, 161 N.W.2d 425 (1968),2 and those of the federal circuit courts, holding that a defendant must be specifically advised of the right to ......
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People v. Whisenant
...II. However, there is an alternative ground upon which we affirm the Court of Appeals. The Court of Appeals in People v. Whisenant (1968 (No. 1)), 11 Mich.App. 432, 161 N.W.2d 425, had reversed and remanded for a new trial without the admission of the confession. The trial court disregarded......
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People v. Tubbs
...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 per......