People v. Williams, Docket No. 13334

• Decision Date: 30 March 1973
• Docket Number: Docket No. 13334,No. 1,1
• Citation: 46 Mich.App. 165,207 N.W.2d 480
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie Lee WILLIAMS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 480

207 N.W.2d 480

46 Mich.App. 165

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie Lee WILLIAMS, Defendant-Appellant.

Docket No. 13334.

Court of Appeals of Michigan, Division No. 1.

March 30, 1973.

Released for Publication May 30, 1973.

Leave to Appeal Denied June 28, 1973.

Carl Ziemba, Detroit, for defendant-appellant.

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

Before V. J. BRENNAN, P.J., and T. M. BURNS and ADAMS ^*, JJ.

PER CURIAM.

Statement of Facts

Early on the morning of June 16, 1971, Detroit police officers stopped a car driven by defendant, Willie Lee Williams, because the vehicle's tail lights were working improperly. As they approached the car, one noticed the passenger, Vincent Sayles, reach under his seat. The policeman ordered Sayles out of the automobile and removed a loaded .32-caliber pistol from beneath the seat. Defendant Williams then exited the car, revealing a .38-caliber pistol on the front seat where he had been sitting. A subsequent search of defendant disclosed $1350 and ten live rounds of .38-caliber ammunition.

On July 15, 1971, defendant was arraigned on an information charging that he and Sayles had violated M.C.L.A. § 750.227; M.S.A. § 28.424 by carrying an unlicensed handgun in a motor vehicle. Defendant's first trial commenced on November 16, 1971 and terminated on November 19, 1971 when the jury was discharged because it was unable to agree upon a verdict. A new jury was impaneled on November 19 and subsequently convicted defendant, while finding codefendant Sayles not guilty. From his conviction and sentence of 4 1/2 to 5 years' imprisonment, defendant now appeals as of right.

Issue I

After conducting a hearing in accordance with People v. Walker, 374 Mich. 331, 132 N.W.2d 87 (On Rehearing, 1965), and determining that a statement was voluntarily made, was it prejudicial error for the trial judge to instruct the jury that he had considered the statement and had determined that it was voluntary?

A Walker hearing was held outside the presence of the jury to determine the voluntariness of a signed statement which defendant allegedly gave to Detective Sergeant Ivor Williams of the Detroit Police Department after defendant's arrest. Sergeant Williams testified that after he had advised defendant of his rights and had had defendant sign a document indicating that he had been so advised, defendant stated that he borrowed the guns from a friend and that the money discovered on his person was saved from his pension income and race track winnings. Officer Williams recorded this information and had defendant sign it. Defendant testified at the Walker hearing that when he signed the statement there was no writing under the word 'remarks' on the paper, although the top portion of the paper had been filled out. He denied that he had claimed to have borrowed the guns from a friend.

After the trial judge had ruled the statement voluntary and Sergeant Williams had testified before the jury as to the contents of the statement, the court addressed the jury as follows:

'The court has held a separate hearing outside the presence of the jury to determine the voluntary nature Of the statements made by the defendant Willie Lee Williams to Sergeant Ivor Williams. That is a question of law which was decided by the court. The jury has two factual questions to determine. One, was a statement actually made as related by Sergeant Williams. Two, if the statement was made, is it true. Now, those are the two things the jury has to decide.' (Emphasis added.)

In his closing instructions, the trial judge again discussed the testimony of Sergeant Williams concerning the statement made by defendant. He informed the jury that 'the court has determined in a separate hearing that the statement was voluntary', and requested the jurors to determine only two questions relating to the statement--whether or not it was actually made and, if it was made, whether it was true. The court additionally cautioned the jury they were the 'sole judges of the credibility of the witnesses.'

People v. Walker, 374 Mich. 331, 337--338, 132 N.W.2d 87 (On Rehearing, 1965), holds that the question of the voluntariness of a confession is solely a matter for determination by the trial judge and not the jury. The opinion does not consider the question of what instructions may be given to the jury as to their responsibilities in reviewing a purported confession.

If a trial judge instructs a jury that the court has held a separate hearing to determine the voluntariness of a statement made by the defendant, and further indicates that the statement was found to be voluntary, it is not likely that the jury will thereafter decide that the statement was not made at all. The better practice would be to admit the statement and advise the jury that they should find 1) if it was made, and 2) if they so find, they should decide if the statement is true.

In this case, defense counsel made no objection to the court's instructions either when they were given after the testimony of Sergeant Williams or when they were incorporated into the court's formal instructions to the jury. In fact, defendant's counsel expressed his satisfaction with the instructions as given. Consequently, we find no error. GCR 1963, 516.2; M.C.L.A. § 769.26; M.S.A. § 28.1096; People v. Keiswetter, 7 Mich.App. 334, 151 N.W.2d 829 (1967).

Issue II

Was it reversible error for the trial court gratuitously to instruct the jury on the law of aiding and abetting in the absence of a prosecution claim that defendant was aiding or abetting someone in the commission of the crime for which he was charged?

Defense counsel made no objection to the judge's charge of aiding and abetting. The police officers testified that the passenger, defendant Sayles, placed his hand under the seat just before the police got to the car, that they found a gun under the seat, and that another gun was found on the seat. In view of this evidence from which a jury could infer joint action on the part of one defendant with the other defendant in the possession of the guns, and the failure by defense counsel to object to the charge, we find no error.

Issue III

Did prejudicial error result from the prosecutor's repeated reference to the fact that defendant was carrying $1350 when he was arrested, and from his reference to the fact that defendant was initially arrested for investigation of armed robbery although he was never tried for that offense?

Defense counsel neither objected to the testimony that defendant was found with the money in his possession nor portested the mention of the fact that he had been initially arrested for armed robbery, and in fact utilized this evidence himself during his closing argument. The testimony concerning the money had probative value because possession of the money supplied a motive for defendant to carry a gun. In the absence of manifest injustice, this Court will not review evidentiary questions not raised in the trial court. People v. Gill, 12 Mich.App. 383, 163 N.W.2d 14 (1968); People v. Maglaya, 17 Mich.App. 379, 169 N.W.2d 530 (1969); People v. Belcher, 29 Mich.App. 341, 185 N.W.2d 440 (1971); People v. Dupree, 36 Mich.App. 138, 193 N.W.2d 205 (1971); People v. Galinski, 38 Mich.App. 214, 196 N.W.2d 21 (1972).

If a new trial were granted and testimony concerning the fact that defendant was initially arrested for suspicion of armed robbery were...