People v. White

• Decision Date: 01 January 1977
• Docket Number: No. 1,1
• Citation: 401 Mich. 482,257 N.W.2d 912
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Adoise WHITE, Defendant-Appellant. ,
• Court: Michigan Supreme Court

Page 912

257 N.W.2d 912

401 Mich. 482

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Adoise WHITE, Defendant-Appellant.

No. 1, Jan. Term, 1977.

Supreme Court of Michigan.

Oct. 11, 1977.

L. Brooks Patterson, Pros. Atty., Oakland County by Robert C. Williams, Chief App. Counsel, Pontiac, for plaintiff-appellee.

Denison, Porter & Bartush by Charles J. Porter, Bloomfield Hills, for defendant-appellant.

RYAN, Justice.

An Oakland County Sheriff's deputy found Robert Greene's body in the early morning hours of Sunday, March 17, 1963 shortly after Greene had been murdered in a small room in the Kroger Supermarket at which he was the assistant manager. Appellant Adoise White was charged with the murder and convicted in 1963. That conviction was reversed by the Court of Appeals and a new trial, from which the instant appeal arises, was ordered. People v. White, 40 Mich.App. 433, 198 N.W.2d 904 (1972). This second conviction was affirmed by the lower appellate court. 65 Mich.App. 56, 236 N.W.2d 583 (1975). We granted leave to appeal. 397 Mich. 811 (1976).

Appellant raises eight assignments of trial error. We find three of his contentions to have merit. We reverse and remand for a new trial.

I

The first issue on appeal concerns the use of certain confessions obtained from White while he was in police custody shortly after the murder.

Appellant was employed as a stockman on the midnight shift at the same Kroger store at which Greene was assistant manager. He did not work on Saturday night (Sunday morning) March 17, but worked Sunday night (Monday morning) March 18. At approximately 9:00 a. m. Monday, about the time appellant was getting off work, he was questioned by police at the store about the murder and related robbery. Police suspicion focused on appellant because a witness reported that two weeks before the murder she had seen a car circle the Kroger store several times as it was closing and then follow Robert Greene's car for several blocks. A check of the license number indicated it belonged to Sam White, appellant's brother. After brief questioning at the store, appellant was taken into custody and conveyed to the police station where he was questioned further.

It is not entirely clear whether appellant was questioned continuously in the immediately succeeding hours or, if intermittently, how long the interrogation sessions lasted. However, it is clear that appellant was not at any time left alone in a jail cell or other area. At around 4:00 p. m. Monday afternoon, White broke down and started to cry and admitted he knew Robert Greene. The police then became convinced appellant was somehow involved in the robbery-murder and he was told he was formally under arrest. He was advised of some of his rights, but not of his right to consult an attorney.

An attorney who later represented appellant at the 1963 trial called the station sometime Monday and was told that appellant had not been arrested but that an investigation was being conducted. It does not appear the lawyer had been retained to represent appellant at that time.

Between 6:00 and 7:00 p. m. appellant was offered food but he refused it. Then, in the company of four or five police officers, he was taken to Flint. Sometime during the questioning, appellant had told police he was a "set-up man" for a robbery of the supermarket that was being planned by persons from Flint to be committed at a later date, and it was thought that appellant might be able to identify photographs of those persons. Appellant later said he invented the story about the people from Flint so that the police would leave him alone. The group arrived back in Pontiac around midnight and appellant was returned to an office in the police department. A police officer testified appellant slept on the way to Flint. White testified he did not. ¹

At 2:45 on Tuesday morning, after having been in the continuous presence and custody of police officers since 9:00 a. m. on Monday, the appellant gave the police a statement. In it he denied being involved in the execution of the robbery-murder and said, "I'm tired and sleepy. Been going through this since nine o'clock." After completing the statement around 4:00 a. m., appellant either fainted or fell asleep and was taken to the Pontiac jail.

Charles Hodges, appellant's nephew, whose name had been mentioned by appellant during the questioning, was then brought to the police station. Shortly thereafter Hodges confessed to participating in the robbery-murder and implicated appellant. He then led police to a jar of money hidden near some railroad tracks in Pontiac.

Appellant and Hodges were arraigned for the murder before a Justice of the Peace at 12:00 p. m. on Tuesday, March 19. Members of the news media, television film cameras, lights and microphones were present in the courtroom and, following the arraignment, appellant and Hodges, while in the custody of police officers, were interviewed and a film was made in which both men confessed their involvement in the murder to television reporter Ven Marshall.

Upon leaving the justice court and before returning to the prosecutor's office where a formal transcribed confession was prepared (Exhibit 17), appellant led police to a sewer in Pontiac where a check identification stamp used by the assistant manager at the Kroger store was found, and then to a jar of money in the basement of his brother's home.

Prior to the trial, the appellant moved to suppress all confessions made by him and invited the court's attention to the fact that there were several confessions in addition to the formal statement (Exhibit 17).

A "Walker hearing" ² was held which resulted in an oral suppression order followed by a written order. At the hearing, after announcing his findings of fact "that Exhibit 17 was not voluntary" (Joint Appendix, p. 113), and conclusion of law that the exhibit would not be admissible at trial, the judge was asked by the defense counsel to clarify the scope of his order:

"Mr. Eubank: May it please the Court, we have as has been argued in these various matters, the so-called Exhibit 17 and then we have the TV thing and then we have discussions by psychiatrists and it was my thought that anything following say, the fruit of the poisonous tree of the nature of a confession, a repetition of a confession before TV or psychiatrists would all be included.

"The Court: You can prepare and notice any order. Specifically I had in mind anything that led up to the Exhibit 17 culminating the Exhibit 17. And merely said for the reasons that I have so carefully enunciated, is not voluntary . . . "

Nevertheless, during the trial the prosecution, without first making an offer of proof and over objection, elicited testimony from a police officer relating the circumstances of the discovery of evidence at the sewer and appellant's brother's basement. The officer, although not permitted by the court to repeat appellant's words, testified that following conversations with White the sites were visited and the check identification stamp and the jar of money found. Because of that testimony a motion for mistrial was made and denied.

The trial judge also ruled that although the film which was made at the time of the arraignment, recording appellant's confession, would not be admissible against him for substantive purposes it could be shown to the jury to impeach his credibility if he chose to testify. Appellant's trial counsel then stated that appellant would decline to testify. Appellant contends prejudicial error resulted from the police officer's testimony describing appellant leading police to the stamp and jar of money, and the trial court's ruling concerning the film. We agree.

The appellant's plainly assertive act of leading the police to evidence of the crime following his "conversations with" them and his admission of guilt of the murder, albeit to a television newsman, were seriously incriminating "statements" which amounted to confessions and were so regarded by White's counsel who sought their suppression.

Since the instant case is a retrial of a case originally tried prior to June 13, 1966, the prerequisites for admissibility of a defendant's in-custody statements announced that day in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) are not applicable. Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969). However, exclusion of appellant's confessions may still be required under the law as it was prior to Miranda, governing involuntary confessions. Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966).

Determination of the issue of voluntariness and resolution of the facts with respect to which there is conflicting testimony are decisions to be made initially by the trial court. The people bear the burden of proving voluntariness. People v. Zeigler, 358 Mich. 355, 364, 100 N.W.2d 456 (1960). Our role was described in People v. McGillen # 1, 392 Mich. 251, 220 N.W.2d 677 (1974) where we said:

" '(T)he sole purpose of the Walker hearing is to determine the fact of voluntariness and a reviewing court is concerned only with the correctness of that determination. * * * " On this appeal we are required to 'examine the whole record and make an independent determination of the ultimate issue of voluntariness.' " '

"If after such a review we do not possess a definite and firm conviction that a mistake was committed by the trial judge in his ruling, we will affirm that ruling. People v. Hummel, 19 Mich.App. 266, 172 N.W.2d 550 (1969)." 392 Mich. 251, 257, 220 N.W.2d 677, 679.

The trial court in the instant case issued an oral opinion from the bench following the Walker hearing and found:

"(T)hat no brutality or physical force was visited by law enforcement officers, or the police upon Adoise White but I do find he was kept under circumstances of being held so that his free will and exercise of mind was not unfettered. He...