People v. Wirth

• Decision Date: 07 November 1978
• Docket Number: Docket No. 77-1265
• Citation: 87 Mich.App. 41,273 N.W.2d 104
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel George WIRTH, Defendant-Appellant. 87 Mich.App. 41, 273 N.W.2d 104
• Court: Court of Appeal of Michigan — District of US

Page 104

273 N.W.2d 104

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel George WIRTH, Defendant-Appellant.

Docket No. 77-1265.

87 Mich.App. 41, 273 N.W.2d 104

Court of Appeals of Michigan.

Nov. 7, 1978.

Released for Publication Jan. 12, 1979.

[87 MICHAPP 43] Daniel Bambery, Ann Arbor, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., John M. Zukowski, Asst. Pros., for plaintiff-appellee.

Before V. J. BRONSON, P. J., and ALLEN and O'CONNELL, ^* JJ.

PER CURIAM.

Defendant was convicted of being an aider or abettor, M.C.L. § 767.39; M.S.A. § 28.979, to the crime of extortion, M.C.L. § 750.213; M.S.A. § 28.410, following his plea of nolo contendere to that charge on December 13, 1976. Defendant was initially charged with kidnapping, M.C.L. § 750.349; M.S.A. § 28.581, and extortion but the kidnapping count was dropped as part of a plea bargain. Defendant was sentenced to 2 years and 6 months to 20 years in prison, and now appeals of right.

The kidnapping and extortion charges stemmed from a plot to kidnap members of the William Schulenberg family and hold them for ransom. The abduction took place in the evening of September 29, 1975, the ransom was paid on the [87 MICHAPP 44] morning of September 30, and those abducted were released on the morning of September 30.

Defendant's role was to take the principals in the crime to the area of the Schulenberg home and later to pick them up when they called. Defendant also left a package at a designated spot during the course of the crime. For his part, defendant received 10% Of the ransom, $4,400. When defendant dropped off the principals he saw that they carried a rifle and a shotgun. Defendant said he knew the plan was to "score something big" but he had no idea as to what crime was intended. According to defendant, he learned of the kidnapping when he heard about it on the radio on the morning of September 30.

On appeal defendant contends that an incriminating statement he made should have been excluded because it was the inadmissible fruit of a warrantless arrest made without probable cause. In order for an officer to make a warrantless arrest there must be circumstances that would lead a reasonably prudent person to the belief that a felony had been committed and that defendant had participated therein. People v. Thatcher, 83 Mich.App. 527, 269 N.W.2d 210 (1978); People v. Tebedo, 81 Mich.App. 535, 265 N.W.2d 406 (1978), M.C.L. § 764.15(c); M.S.A. § 28.874(c). Since the lower court has determined that there was probable cause, we review its ruling for an abuse of discretion. People v. Thatcher, supra, 83 Mich.App. at 529, 269 N.W.2d 210.

Defendant was arrested on October 1, 1975, at a house which was located about 100 feet from a tree to which a member of the Schulenberg family was tied during the course of the crime. Police and FBI agents were investigating the crime and FBI agent Eiden was questioning defendant. Another agent phoned Eiden to inform him that defendant [87 MICHAPP 45] was seen in a car belonging to one of the primary suspects in the case, Todd Szynwelski, and was accompanied by the other primary suspect, Ken Royce, shortly after the ransom had been paid on the morning of September 30. Defendant and Royce had been seen arriving at the house then being investigated. Agent Eiden was also informed that one Mary Sequara ¹ had made a statement connecting defendant with Royce and Szynwelski. At this point Eiden told defendant the complexion of the interview had changed and that defendant was under arrest. We find that there was no abuse of discretion in the lower court concluding that these facts constituted probable cause to arrest defendant.

After being arrested, Eiden informed defendant of his rights by presenting him with a form enumerating the Miranda rights. Defendant read the form and refused to sign it, but he did initial a statement that he had read the form and declined to sign it. Shortly thereafter, defendant said he would tell what he knew. The agents then took defendant to the local FBI office. En route they stopped at defendant's mother's house to retrieve defendant's share of the ransom. Defendant's mother asked him if he wanted an attorney and defendant responded that he did not. At the FBI office defendant read a rights and waiver form identical to the one he had read earlier. This time defendant signed the form. Defendant then made an incriminating statement which he refused to sign on the advice of attorneys sent by his mother.

As previously noted, defendant's statement was not inadmissible due to an invalid arrest. Defendant also contends the statement was inadmissible because it was involuntary and was obtained in [87 MICHAPP 46] violation of his right to remain silent. We find, as did the lower court, that the statement was voluntarily made and was admissible. The question of voluntariness is to be determined from the totality of the circumstances. People v. Smith, 80 Mich.App. 106, 263 N.W.2d 306 (1977); People v. Cutler, 73 Mich.App. 313, 251 N.W.2d 303 (1977). In this case we are convinced that defendant voluntarily waived his right to remain silent. Defendant indicated he wished to talk, twice he read and understood his rights, he signed a waiver form the second time, and he declined his mother's initial suggestion to obtain counsel. Defendant's initial refusal to sign the waiver form is only one factor in the totality of the circumstances considered, and it did not render defendant's later statements inadmissible. People v. Oliver, 63 Mich.App. 509, 234 N.W.2d 679 (1975); People v. McClendon, 48 Mich.App. 552, 210 N.W.2d 778 (1973).

Defendant also questions whether he could be convicted of extortion as an aider and abettor where he allegedly did not have the requisite specific intent to commit the crime. Defendant attacks the propriety of both his bindover following his preliminary examination and his nolo contendere plea on the ground that the evidence did not show his specific intent to extort.

To be held criminally liable for a specific intent crime as an aider or abettor, a defendant must have had either the requisite specific intent or known that the actual perpetrator had the required intent. People v. Lester, 78 Mich.App. 21, 259 N.W.2d 370 (1977); People v. Poplar, 20 Mich.App. 132, 173 N.W.2d 732 (1969). Intent is a question of fact to be inferred from the circumstances by the trier of fact. People v. Spry, 74 Mich.App. 584, 254 N.W.2d 782 (1977); People v. Sharp, 57 [87 MICHAPP 47] Mich.App. 624, 226 N.W.2d 590 (1975). It is likewise a factual issue whether a particular act or crime committed was fairly within the intended scope of the common criminal enterprise. People v. Haack, 396 Mich. 367, 240 N.W.2d 704 (1976); People v. McGuire, 39 Mich.App. 308, 197 N.W.2d 469 (1972); People v. Pearce, 20 Mich.App. 289, 174 N.W.2d 19 (1969); People v. Poplar, supra.

An examining magistrate may bind a defendant over for trial only if he determines that an offense has been committed and that there is probable cause to believe the defendant committed it. People v. Morris, 66 Mich.App. 514, 239 N.W.2d 649 (1976). In order to find probable cause there must be evidence on each element of the offense or evidence from which those elements may be inferred, but the elements need not be proven beyond a reasonable doubt. People v. Oster, 67 Mich.App. 490, 241 N.W.2d 260 (1976); People v. Smith, 49 Mich.App. 630, 212 N.W.2d 768 (1973). That ultimate finding is for the trier of fact. The magistrate's determination is reviewed for an abuse of discretion. People v. Melvin, 70 Mich.App. 138, 245 N.W.2d 178 (1976). In this case the only question concerned the element of intent, and there was sufficient evidence to infer that defendant had...