PEOPLE
v.
CAMPBELL
Docket No. 7,732.
Michigan Court of Appeals.
Decided August 25, 1970. Leave to appeal denied October 29, 1970.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Angelo A. Pentolino, Assistant Prosecuting Attorney, for the people.
Norman L. Zemke, for defendant on appeal.
Before: HOLBROOK, P.J., and R.B. BURNS and O'HARA,[*] JJ.
Leave to appeal denied October 29, 1970. 384 Mich. 774.
O'HARA, J.
This is an appeal of right from the denial of a motion for a new trial. Defendant was charged with, and jury convicted of, the crime of first-degree murder.[1]
We recite the relevant facts. In March of 1967, Margaret Churan, the mother of the defendant, was *198 strangled to death. Defendant at that time was enamored of and keeping company with a certain Mary Dotson. Mrs. Dotson originally came from Tennessee. She was the mother of several children who lived with her in Detroit. Defendant lived in Hamtramck. Mrs. Dotson wanted to return to her mother's home in Tennessee. Defendant offered to drive her there. To do so, he had to have the use of his mother's car. Defendant, Mrs. Dotson, and her children came to the deceased's home with the defendant to get permission to use the car. It was refused. An argument ensued. During the argument, according to Mrs. Dotson, the defendant instructed her to take her children upstairs and to remain there until he called her to come down. He did not do so for a considerable period of time. While she and the children were upstairs, Mrs. Dotson heard a door close and someone, presumably the defendant, leave the home. Sometime later he returned. He told her he was ready to take her to her mother's home. Before leaving he elicited her aid in carrying a heavy trunk from the house and putting it in his mother's car. They left and arrived at Mrs. Dotson's mother's home around nine the next morning. Mrs. Dotson's children were left at the grandmaternal home. Mrs. Dotson and defendant drove some 12 miles out into the back country. Defendant removed the trunk from the car. According to Mrs. Dotson, when he raised the lid on the trunk she saw a hand. She started to run away. Defendant allegedly restrained her and told her to get back in the car. Defendant then poured gasoline on the trunk and ignited it.
Some time later defendant was arrested in Bradley County, Tennessee, by Tennessee authorities on a fugitive warrant for escape from a South Carolina workhouse. During confinement and interrogation *199 in connection with that charge, he confessed to the murder of his mother. He was then taken to McMinn County, Tennessee, the county in which the body was found. While in McMinn County, defendant, in the presence of the McMinn Sheriff and two newspapermen, confessed again. During a subsequent trip to McMinn County, defendant stated in a televised interview that he would plead guilty to the murder of his mother.
He was returned to Michigan and tried in Recorder's Court for the City of Detroit, and convicted as previously noted. During the trial he repudiated his confessions. He claimed Mrs. Dotson, in fact, strangled his mother. He testified that on the night of the murder both his mother and Mrs. Dotson had been drinking; that there was ill feeling between them; and that he had confessed only to shield her, Mrs. Dotson, and her children from complicity in the crime.
The jury apparently accepted Mrs. Dotson's version of the grisly events and rejected defendant's.
On appeal, defendant raises three issues:
(1) That his confession was improperly admitted as being obtained in violation of his basic Fifth and Sixth Amendment constitutional rights, particularly as to his right to counsel and his alleged waiver thereof; (2) that his guilt was not established beyond a reasonable doubt; and (3) that there were insufficient facts adduced to vest jurisdiction of the prosecution in the Recorder's Court of the City of Detroit.
We treat the assignments of error in inverse order.
(3) Jurisdiction need not be proved with computerized accuracy. There was ample evidence from which the jury could reasonably infer that the offense was committed within the City of Detroit. To *200 hold otherwise would place upon the prosecution in every criminal proceeding the impossible burden of producing an eyewitness capable of testifying to the event or events constituting the offense and the precise location at which they took place. Those guilty of criminal conduct are not always sufficiently co-operative to provide witnesses for this purpose. It may in fact be said that in most cases they seek to avoid furnishing such testimony. The assignment of error is totally without merit.
"During the trial the defendant strenuously contended the alleged offense occurred within the corporate limits of the city of Detroit. There was testimony on the part of the people in contradiction of this contention that the alleged offense occurred in Highland Park. The trial judge correctly covered the matter in his instructions, specifically telling the jury this was a question of fact for them to resolve. Obviously, from the verdict, they found the crime to have been committed in Highland Park." People v. Ragland (1968), 14 Mich. App. 425, 427.
(2) There was ample testimony if believed by the jury to support its finding of defendant's guilt beyond any reasonable doubt. Citations and record excerpts in support of this holding would add nothing to our obvious conclusion from the total record. A fact issue was clearly created. The jury resolved it. It is not susceptible of our review. People v. Heard (1969), 19 Mich. App. 516; People v. Arither Thomas (1967), 7 Mich. App. 103.
(1) We turn next to the first claimed error, namely, that defendant was inadequately advised of his constitutional rights and that if so advised he did not expressly waive the right to counsel before being questioned.
*201 The warnings were given to him in the following manner. He was presented with a printed card reading:
"Your rights: Bradley County, Tennessee. Date: 4/19/67. Time: 7:08 P.M.
"Before we ask you any questions, you must understand your rights. You have a right to remain silent and anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and have him with you during the questioning. You have this right to advice in the presence of a lawyer, even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you if you wish, if and when you go to court.
"If you wish to answer questions at anytime, you also have the right to stop answering at anytime until you talk to a lawyer. This is the waiver: I have read the statement of the rights shown above and I understand my rights and what they are, and I'm willing to answer any questions and make the statement. I do not want a lawyer, and I understand and know what I am doing.
"There have been no promises or threats made to me, and no pressure of any kind has been used against me."
While the wording of the printed Miranda[2] warning contains some statements that might be termed ambiguous, the basic rights guaranteed by Miranda were sufficiently explained. Defendant specifically complains of the phrasing: "We have no way of giving you a lawyer, but one will be appointed for you if you wish, if and when you go to court."
Standing alone, this statement might offend against Miranda, but we think it must be read in light of this additional language:
*202 "If you wish to answer questions at anytime, you also have the right to stop answering at anytime until you talk to a lawyer."
Then follows the waiver language on the form which defendant signed:
" * * * I'm willing to answer any questions and make the statement. I do not want a lawyer and I understand and know what I am doing.
"There have been no promises or threats made to me and no pressure of any kind has been used against me."
The quoted language may not be a triumph in precision of expression but we think it could not fail to advise the defendant of his right to counsel, the right to remain absolutely silent and answer no questions at all, and that it contained a fair explanation that he could waive counsel if he wished and answer questions voluntarily.
The foregoing interpretation is buttressed by the finding of the learned trial judge who conducted a most extensive and searching hearing on the issue of the voluntariness of the confession. The record consists of three volumes of testimony, the arguments of counsel, and the specific findings of the court. On the basis of that record, he excluded the inculpatory statements and the signed confession which were taken in the McMinn County jail. The trial court in effect held that while the warnings and waiver in that county comported with Miranda standards, they were tainted by the presence of reporters who took their own notes as the defendant confessed, and further tainted by the defendant's television appearance in which he publicly confessed his guilt. The court warned the prosecution not to make any reference to these confessional statements and to be sure no witnesses adverted to them.
*203 However, as to all the inculpatory material resulting from the questioning in the Bradley County jail, he found:
"It is my feeling that because of the general atmosphere of this interrogation there was at all times an opportunity on behalf of the defendant, and a continuous opportunity to [re] examine the rights as [they] were explained to him. * * * the defendant was not subjected to any physical or psychological, as Miranda sets forth, coercion or compulsion. This was not a compelled statement.
"* * * (T)here were no cuffs used on the defendant, he was not shackled in any way. He was in an interrogation room that was described as a room with a couch in it, a desk and some chairs; he was provided coffee; asked if he wanted Cokes and allowed to smoke cigarettes.
* * *
"Twice he waived these rights directly by signature. Sheriff Davis said he presented to the defendant a newspaper to determine whether or not the defendant could read. And Sheriff Davis was convinced that the defendant could read.
* * *
"The defendant at all times was aware, in my opinion, of his rights. He was aware of these rights from the moment he was arrested to the moment he signed that statement.
* * *
"The defendant gave a statement, after examining the entire atmosphere of this interrogation, that was completely voluntary, and freely made, with the knowledge at all times and an awareness an acute awareness of his rights." (Bracketed material and emphasis supplied.)
Unless it be the obligation of an appellate court on review to constitute itself an appellate advocate, *204 seeking out any possible technical defect in warning a defendant of his constitutional rights and explaining that he may also waive the presence of an attorney during questioning, the record in this case more than fairly establishes that defendant was explained his right to counsel and explicitly waived it.
Upon a careful review of the whole record we find no error.
The order denying the motion for a new trial is affirmed.
All concurred.
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] MCLA § 750.316 (Stat Ann 1954 Rev § 28.548).
[2] Miranda v. Arizona (1966), 384 U.S. 436 (86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR3d 974).