People v. Jobson

Jansen, P.J.

This is a prosecutor’s appeal by leave granted. The people appeal from an order of the Detroit Recorder’s Court reversing defendant’s conviction and remanding to the 36th District Court for a new trial on the basis that certain statements and paperwork made by defendant were involuntary and, therefore, improperly admitted at trial. We reverse.

Defendant Phillip Jobson was a Detroit police officer. He was convicted, following a jury trial in the 36th District Court, of entering a building without the owner’s permission (a misdemeanor). The conviction arose out of police raids at two homes in the City of Detroit. Defendant and nine other officers on the night of February 21, 1988, participated in "follow-up visits” to the two homes. Apparently, the homes were listed on a special attention sheet, which is a list of homes that had been raided previously and were to be rechecked for any continuing narcotics activity. The raids were not authorized, and the police did not have search warrants.

One of the occupants of the homes called the Tenth Precinct Station after the raids. Sergeant Alan Szczak then personally interviewed the residents of the homes. This prompted Sergeant Szczak to question the various officers concerning *710whether they had been to the two residences. Szczak asked defendant shortly after the raids, and about one week later at the police station, if he had been at the residences involved. Both times, defendant responded that he had not been there. Szczak described the questioning as casual and could not recall if defendant was with anyone else when the questions were asked.

Further, all activity performed by police officers during their patrols is to be recorded in an activity log. Defendant’s activity log made no reference to the raids.

Defendant appealed his conviction to the Recorder’s Court of Detroit. The Recorder’s Court granted defendant a new trial on the basis that the statements made to Szczak and the activity log sheets were involuntary within the meaning of the rule of Garrity v New Jersey, 385 US 493; 87 S Ct 616; 17 L Ed 2d 562 (1967), and People v Allen, 15 Mich App 387; 166 NW2d 664 (1968). We find that the rule enunciated in Garrity does not apply to this case and, therefore, reverse the order of the Recorder’s Court granting defendant a new trial.

The issue of the voluntariness of a statement is a question of law for a court’s determination. People v Walker (On Rehearing), 374 Mich 331, 338; 132 NW2d 87 (1965). In reviewing a trial court’s findings, this Court examines the entire record and makes an independent determination of voluntariness. However, this Court gives deference to a trial court’s findings, unless they are clearly erroneous. People v Etheridge, 196 Mich App 43, 57; 492 NW2d 490 (1992). A finding is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made. People v Mack, 190 Mich App 7, 17; 475 NW2d 830 (1991).

*711In Garrity, certain New Jersey police officers were investigated by the state attorney general under direction of the New Jersey Supreme Court. The matter being investigated concerned the alleged fixing of traffic tickets. The police officers were questioned, but before being questioned they were warned that anything they said might be used against them in any state criminal proceeding, that they had the privilege to refuse to answer if the disclosure might incriminate them, and that if they refused to answer they would be subject to removal from office.

The United States Supreme Court stated that the choice given to the officers was to either lose their jobs or incriminate themselves. This option was " 'likely to exert such pressure upon an individual as to disable him from making a free and rational choice.’ ” Garrity, 385 US 497, quoting Miranda v Arizona, 384 US 436, 464-465; 86 S Ct 1602; 16 L Ed 2d 694 (1966). Thus the statements were held to be coerced and involuntary and admitted in the subsequent criminal prosecutions in violation of the right against self-incrimination under the Fifth Amendment.

In Allen, certain Detroit police officers were subpoenaed to testify before a judge (a so-called "one person grand jury”). The investigation concerned alleged bribery and corruption of public officials. The officers were advised of their right to remain silent when they were called to testify. The officers were arrested following their testimony and, subsequently, were bound over on charges of perjury. Before trial, the officers challenged the admissibility of their statements before the grand jury on Fifth Amendment grounds. Upon denial of their motions to quash the information and dismiss the perjury charges, the officers appealed to this Court.

*712In Allen, the prosecutor in the grand jury proceedings threatened one of the officers (but none of the defendants in Allen) with discharge if the Fifth Amendment privilege was asserted. However, there was no evidentiary record made in the trial court concerning whether the defendants in Allen at the time of giving their testimony felt coerced by the threat, knew of the threat, and were also aware of an attorney general’s opinion indicating that their removal from office under such circumstances would be justified. This Court ultimately remanded for an evidentiary hearing to determine whether the officers’ statements were voluntary under these facts.

The factual situation in the instant case is not analogous to the factual situation in either Garrity or Allen. There is no evidence from the record that defendant was threatened with discharge from his job if he refused to answer Szczak’s questions concerning whether he was at the two raided residences on the night of the incidents. Buckner v Highland Park, 901 F2d 491, 496 (CA 6, 1990). Rather, Szczak testified that the questions were asked in a casual manner. Defendant’s argument that the statements were involuntary because had he failed to answer the questions during a departmental investigation he would have been disciplined, is simply not compelled by either Garrity or Allen. There is no evidence that defendant actually was threatened that he would be discharged if he did not answer Szczak’s questions.

Further, defendant’s statements cannot be characterized as "made under the lash of a disciplinary proceeding,” In re Leon Jenkins, 437 Mich 15, 26; 465 NW2d 317 (1991), or made during a departmental investigation as stated by defendant. Here, Szczak questioned defendant concerning whether he had been at the residences. The questions were *713not made in the context of a formal investigation, and, in fact, internal affairs began its investigation after Szczak’s questions.

In the absence of the coercive factors and the formal investigations that were present in Garrity and Allen, we find that the totality of the circumstances surrounding the making of defendant’s statements to Szczak indicates that the statements were made freely and voluntarily. People v Cipriano, 431 Mich 315, 334; 429 NW2d 781 (1988). This is not a situation where defendant was denied the free choice to admit, deny, or refuse to answer. Garner v United States, 424 US 648, 657; 96 S Ct 1178; 47 L Ed 2d 370 (1976). There was thus no coerced confession in this case, because defendant was not presented with the option of either testifying or losing his job if he refused to testify. Garrity, supra.

The Recorder’s Court judge’s finding that defendant was legitimately fearful of losing his job if he refused to answer Szczak’s questions, therefore, is clearly erroneous, because there is no evidence from the record that defendant was told that if he refused to answer, he would be discharged. Nor is there any evidence from the record that defendant was even legitimately fearful of losing his job if he refused to answer the questions.

Finally, we note that the activity log sheet, which police officers are required to complete, was properly admitted pursuant to MRE 803(6), (7).

We reverse the order granting defendant a new trial and remand for reinstatement of his conviction.

K. N. Hansen, J., concurred.