PEOPLE
v.
HERMAN JACKSON
Docket No. 10658.
Michigan Court of Appeals.
Decided January 19, 1972.*666 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Patricia J. Boyle, Assistant Prosecuting Attorney, for the people.
Carl Ziemba, for defendant on appeal.
Before: V.J. BRENNAN, P.J., and J.H. GILLIS and O'HARA,[*] JJ.
Leave to appeal denied, 388 Mich. 767.
J.H. GILLIS, J.
Defendant, charged with second-degree murder, was found guilty by a jury of manslaughter (MCLA § 750.321 [Stat Ann 1954 Rev § 28.553]) and from his conviction and sentence he appeals.
The death occurred in defendant's ex-wife's apartment and resulted from a single bullet which entered the center of deceased's forehead. On the day in question, defendant went over to his ex-wife's apartment in which also resided deceased and her baby. His former wife left the apartment and upon her return, defendant met her at the rear door and asked her not to go in.
Two police officers were sent to the dwelling in question on a radio call which indicated a shooting may have occurred. At the trial one officer testified that he entered the apartment, observed deceased in a pool of blood on the floor, and then saw defendant standing in the doorway to the kitchen. On direct examination the officer testified he then had a "conversation" *667 with the defendant[1] after which he placed him under arrest. On cross-examination defense counsel asked the officer whether defendant had told him that he was not in the same room as the deceased when the shot was fired. The witness answered affirmatively. Counsel then asked if defendant had indicated that he was in the bathroom at the time he heard the shot. Again, the officer's response was in the affirmative. On redirect examination the prosecutor asked the witness to recount the complete conversation. The officer then testified that defendant stated he was sitting on the toilet and that the deceased had asked him how to load the gun. He said he had replied that the gun was already loaded. On recross-examination it was admitted by the officer that defendant made the above statements in response to his question of "what happened?" Defense counsel thereupon asked that the officer's testimony regarding defendant's statement be stricken from the record and asked for a Walker hearing as to the voluntariness of defendant's statement. People v Walker (on rehearing, 1965), 374 Mich. 331. At said hearing the officer indicated that upon entering the apartment and seeing deceased he asked the defendant what the deceased's name was. After obtaining this information he immediately asked, "What happened?" The officer further testified that he considered defendant a suspect as soon as he saw the body on the floor. The trial court denied the motion to strike the testimony.
The controlling issue on this appeal is whether the trial court committed reversible error by allowing the prosecutor on direct examination of the officer to make reference to defendant's conversation with said officer and subsequently on redirect examination *668 to elicit defendant's entire statement where there was no showing that the defendant had been informed of the Miranda warnings.
In Miranda v. Arizona (1966), 384 U.S. 436, 444 (86 S. Ct. 1602, 1612; 16 L. Ed. 2d 694, 706; 10 ALR3d 974), the United States Supreme Court stated:
"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 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]"
The Miranda opinion further pointed out (384 US at 477, 478 [86 S Ct at 1629, 1630; 16 L Ed 2d at 725, 726]):
"Our decision is not intended to hamper the traditional function of police officers in investigating crime * * * When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information *669 they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present." (Emphasis supplied.)
It is quite obvious that any questioning anywhere by a police officer generates some pressures and anxieties. However, before defendant's contention can be afforded substance under Miranda, the question that must be answered is whether he was in custody or deprived of his freedom of action in any significant way when the officer asked "What happened?" Therefore, it is necessary for this Court to determine under what circumstances the statements of defendant were made.
The question asked by the officer was not the product of a process of interrogation aimed at eliciting incriminatory statements from one whom an investigation had focused upon. Instead, it was a situation of an officer reacting naturally and spontaneously to the scene before him. It was a routine means of commencing an investigation and not an inquiry made pursuant to an already-launched investigation. The defendant had not as yet been placed under arrest; neither was he in foreign surroundings nor in a "police-dominated atmosphere" as stressed in Miranda.
In an almost identical factual situation[2] the Court of Criminal Appeals of Tennessee found that the Miranda rights were unnecessary. Ballard v. State (Tenn Crim App, 1969), 454 S.W.2d 193 (and cases cited therein). In that case a young woman was shot in the neck and killed instantly. She was lying on the bed in an upstair's apartment bedroom of the *670 defendant. The first officer to arrive went to the bedroom and there saw defendant standing in the middle of the floor. The gun was at the foot of the bed. The officer asked him what happened and the defendant replied, "I shot her." The court held that the statement was properly admissible. See also People v. Robinson (1970), 22 Mich. App. 124; People v. Patton (1968), 15 Mich. App. 198.
Consequently, we conclude there was no violation of Miranda in the case before us.
Defendant also asserts that it was reversible error for the trial court to grant the jury's request to have a blackboard brought to the jury room during deliberations. The blackboard contained a diagram of the location of the shooting as drawn by one of the prosecution witnesses. The following statement is taken from the record:
"The Court: Let the record indicate that the jury is deliberating and the defendant is not in court but Mr. O'Connell is here and assistant prosecuting attorney and the jury has made a request for the blackboard that was used to outline the place of the alleged occurrence, the drawing of the apartment, made by the witness Bulgin and there are some figures on there which were added by defense counsel O'Connell. Now, does counsel feel it would help the jury in arriving at a verdict to give them this particular blackboard without the lines drawn?
"Mr. Galligan: I have no objection.
"Mr. O'Connell: We have no objection to them seeing it since they requested it, your Honor.
"The Court: All right. We will let them take it. It is not in evidence. They have seen it. It may aid them in arriving at a verdict."
The trial in this cause commenced on September 23, 1970, and concluded on September 29, 1970. During much of this time the blackboard sat in front of the *671 jury. In light of defense counsel's consent and the fact that the jury had seen it for several days, there is no reversible error here. We fail to see how the defendant could have been prejudiced in any manner.
Defendant's other assignments of error are without sufficient merit to warrant discussion.
Affirmed.
V.J. BRENNAN, P.J., concurred.
O'HARA, J. (dissenting).
While I agree with my colleagues on the first issue which may be characterized as the Miranda[1] question, I am not in accord with their holding that to allow the blackboard to be taken into the jury room even with the express consent of counsel did not constitute reversible error.
It is too well settled to admit of discussion that: "It is the rule that nothing in the nature of testimony may be taken in the absence of the defendant". People v. Raider (1931), 256 Mich. 131, 138.
It is my precise point that allowing the jury to take the blackboard, unidentified and unadmitted as an exhibit, into the jury room raised it to the level of substantive evidence. Admittedly this was done out of the presence of the accused. This rendered the conviction constitutionally infirm. In the factual context of this case, it was crucial evidence. Distances, measurements and locations all bearing on the question of whether the accused discharged the weapon or whether it was discharged by the deceased were placed on the board by prosecution witnesses. Interlineations, corrections and over-writings were made on it by counsel. The very fact *672 the jury called for it establishes the weight they must have accorded it. It might very well have been the conclusive factor in their deliberations. To allow the jury to take it into the jury room whether it stood in the courtroom for several days or not was the same as allowing the officer who designated the spot at which the weapon was found in relation to the body of the deceased to testify again in defendant's absence.
Only two things could have happened in this case. Either the accused discharged the firearm or the deceased did. The answer to that question should not have been affected by the presence of the unadmitted piece of demonstrative evidence in the jury room during deliberations.
I am not unmindful that this Court has held times without number that certain issues cannot be raised the first time on review. I have signed and indeed authored such opinions. I am aware that trial counsel in this case may well have decided that to consent to taking the blackboard into the jury room was a wise trial tactic, and of benefit to the accused. However, I concur in the holding of this Court in People v. Degraffenreid (1969), 19 Mich. App. 702, 713. There are certain rights which are so essential to the concept of due process that no lawyer can waive them for a defendant. In my view the right of the defendant to be present when any testimony is taken is in that category. For this reason I would reverse and remand for a new trial.
NOTES
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
[1] The nature of the conversation between the officer and defendant was not solicited by the prosecution on direct examination.
[4] "This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused." (Footnote of Supreme Court.)
[2] The similarity extends even to the point where a police officer testified on cross-examination that there were two "suspects" at the house.
[1] Miranda v. Arizona (1966), 384 U.S. 436 (86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR3d 974).