PEOPLE
v.
GILBERT
Docket No. 5,883.
Michigan Court of Appeals.
Decided February 4, 1970.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Harvey A. Koselka, Prosecuting Attorney, for the people.
Edward J. Engle, Jr., for defendant on appeal.
Before: QUINN, P.J., and BRONSON and T.M. BURNS, JJ.
BRONSON, J.
At a nonjury trial in the Lenawee County Circuit Court, Wallace Gilbert, the defendant, *445 was convicted of statutory rape.[1] He was sentenced to a term of one year and six months to ten years in prison. Defendant then filed a motion for a new trial, which was denied. From this verdict, defendant appeals.
The alleged rape occurred on January 1, 1967. Some seven months later the complainant went to the police and charged defendant with having raped her. At this time the complainant was some seven months pregnant.
On July 28, 1967 David Snyder, a detective with the Lenawee County sheriff's department, saw defendant driving through Cement City. Detective Snyder followed defendant to his home and there questioned him in regard to the allegations made by the complainant. On July 28, 1967 detective Snyder was in Cement City investigating a crime not connected with defendant. He was in uniform and driving a semi-marked patrol car. Detective Snyder testified that there had been several previous attempts to contact defendant at his home; that he had talked with defendant's mother on one occasion and with his father several times. On July 28, 1967 detective Snyder followed defendant to his home and into the driveway, walked to the car in which defendant and his brother were sitting and "advised him that I wanted to talk to him and asked that he come back to the patrol car with me which he did." Detective Snyder then "told him that we were investigating a complaint that had been made * * * and proceeded to ask him if he knew anything about the incidents as stated."
Defendant's defense was alibi. At trial, he claimed that he had not been with complainant on the night in question. Over objection of defense counsel detective Snyder was allowed to testify, for purpose of *446 impeachment, that in the conversation on July 28, 1967 defendant had admitted being with complainant on January 1, 1967.
In Escobedo v. Illinois (1964), 378 US 478 (84 S Ct 1758, 12 L Ed 2d 977), the United States Supreme Court stated:
"Nothing we have said today affects the powers of the police to investigate `an unsolved crime,' * * * by gathering information from witnesses and by other `proper investigative efforts.' * * * We hold only that when the process shifts from investigatory to accusatory when its focus is on the accused and its purpose is to elicit a confession our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer."
In Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR 3d 974), the United States Supreme Court stated:
"This was the spirit in which we delineated, in meaningful language, the manner in which the constitutional rights of the individual could be enforced against overzealous police practices. It was necessary in Escobedo, as here, to insure that what was proclaimed in the Constitution had not become but a `form of words,' Silverthorne Lumber Company, Inc., v. United States (1920), 251 US 385, 392 (40 S Ct 182, 183; 64 L Ed 319, 321), in the hands of government officials. And it is in this spirit, consistent with our role as judges, that we adhere to the principles of Escobedo today.
"Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective *447 to secure the privilege against self-incrimination."
The Court in Miranda then went on to state that:
"By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.[4] * * *
"[4] This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused."
I am unable to say with conviction, after reading this record, that the requirements of Escobedo and Miranda are not applicable under the facts here presented.
It is urged that when sheriff's detective Snyder "advised" defendant to walk back to the patrol car the scope of the investigation had not narrowed so greatly as to have shifted the process "from investigative to accusatory".
I cannot accept that argument. Ordinarily the reporting of a crime to the police is not sufficient in and of itself to transform any conversation with a possible suspect into an official accusation. However, the nature of the charge involved here is such that the accusatorial finger had most assuredly been pointed, and pointed specifically, at Wallace Gilbert and no one else. Thus Gilbert was the prime and as far as this Court knows the only suspect. There was but one accused and that one was Wallace Gilbert. The unwed complainant, already seven months pregnant at the time, had presented herself at the Lenawee County sheriff's office and named Wallace Gilbert as the rapist.
Under the circumstances peculiar to this case, when the sheriff's detective "advised" Gilbert that he wanted to talk to him in his police car and informed *448 defendant of the accusation made against him, there was sufficient custodial duress at that time to require adherence to the principles laid down in Escobedo and Miranda.[2] That the formal complaint did not issue until November 3, 1967 does not alter the fact that the accusatorial finger had already begun by July 28, 1967 to point at the defendant. Defendant was not told by detective Snyder that he had certain constitutionally-protected rights, among which were the right to remain silent and the right to have counsel present. Due to the possible taint attached to the information received by detective Snyder on July 28, 1967 and the weight given by the trial judge to detective Snyder's testimony,[3] I would remand for a new trial, excluding *449 testimony by detective Snyder as to the conversation between the detective and defendant on July 28, 1967. See People v. Marsh (1968), 14 Mich App 518.
T.M. BURNS, J. concurred.
QUINN, P.J. (dissenting).
On the basis of Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974), and Escobedo v. Illinois (1964), 378 US 478 (84 S Ct 1758, 12 L Ed 2d 977), the majority opinion holds that it was reversible error to admit the testimony of detective Snyder for impeachment purposes. If Snyder's testimony was inadmissible under the Miranda and Escobedo standards, it was not admissible for impeachment purposes, People v. Hosack (1969), 16 Mich App 552, and I would concur in reversal.
However, defendant concedes that he was not in custody when he made the statement related by Snyder and that Miranda, supra, does not apply. On this record, which discloses an offense January 1, 1967 that was reported to the police in July, 1967, and the purported inadmissible statement made during a casual investigation July 28, 1967 with no formal charge against defendant until November 3, 1967, I am unable to say that proceedings against defendant had reached the adversary or accusatory stage on July 28, 1967. In my view, neither Miranda *450 nor Escobedo, supra, applies to this case and Snyder's testimony was properly admitted.
In addition, defendant contends that the trial judge employed an improper method in determining the credibility of witnesses and that he failed to give the proper weight to the presumption of innocence.
With respect to the first error alleged in the preceding paragraph, defendant concedes that a trial court sitting without a jury is the trier of fact and must determine the credibility of witnesses, and that normally an appellate court will not review questions of credibility. In this instance, however, defendant contends that the trial judge determined the credibility by using a method which employed as its test information collateral and not germane to the lawsuit in question, employed as its test information based on personal information known only to the trier of fact, and a method that indicated a predisposition of the trier of fact to a particular finding of credibility depending on the community status of the witness involved. In support of this contention, defendant cites excerpts from the oral decision of the trial judge given from the bench at the conclusion of the trial. These excerpts taken out of context lend some credence to defendant's position, but when the oral decision is read in its entirety, it does not support defendant's position. I find no error in this regard.
Further, defendant says the proof of the prosecution was not sufficient to overcome the presumption of innocence, and therefore the trial judge failed to give that presumption its proper weight. On this record, there is no doubt that the crime charged was committed, and the record contains ample evidence to establish beyond a reasonable doubt that defendant committed it. This overcomes the presumption.
I would affirm the trial court.
NOTES
[1] MCLA § 750.520 (Stat Ann 1954 Rev § 28.788).
[2] See Kamisar, "Custodial Interrogation" within the Meaning of Miranda, in Criminal Law and the Constitution Sources and Commentaries (1968), p 341, where Professor Kamisar states:
"I think the Supreme Court has made it fairly plain that if a man is not in custody, is not really restrained, no warning has to be given. The function of the Miranda warnings is to dispel the coercion inherent in police custodial surroundings and the interrogation process, to relieve the suspect of anxieties generated when he is torn from a familiar environment and thrust into a police-dominated atmosphere, or to relieve him of the typically lesser but still substantial anxieties created when he is restrained `on the street' by uniformed officers and questioned there or in the squad car." (Emphasis added.)
[3] The trial court, in its opinion, found:
"In our case, it was apparent to the court that the defendant knew about all the rebuttal witnesses except Mr. Snyder.
* * *
"The principal concern of the court here is whether or not they should have been called as part of the people's principal case. David Snyder could not have been. In fact if the defendant hadn't taken the stand, Mr. Snyder could not have testified. If the defendant had admitted making the statement Mr. Snyder attributed to him, Mr. Snyder could not have testified. Here the statement claimed to have been made would not have had a bearing on the merits of the case that the Supreme Court rejected testimony in the Kennedy ease did [sic]. Mr. Snyder's testimony was valuable in adding weight to the other testimony tending to impeach the defendant."
Upon completion of the taking of testimony the trial judge stated:
"I am convinced of this as I read these notes and as I listened to these witnesses there are two witnesses here and two witnesses alone who I am willing to believe, who were telling it to the best of their ability the whole truth of this evening. Those two witnesses were Letha Kelley and Dave Snyder.
* * *
"I'm convinced that David Snyder was telling the truth when he said he talked to the defendant and he said that sometime on or about January first he had been out with the complaining witness.
"I am convinced that the complaining witness and Evelyn and Tim and the defendant at times deliberately did not tell us the truth from the witness stand." (Emphasis added.)