*1 442 21 Mich Am? 442 repeat tbe instruction on by failing burden of when tbe instruction proof neither requested nor of tbe instruction wbicb part repetition requested.
Plaintiffs raise a number of final questions regard- ing tbe giving, failure to certain give, instructions. A careful review of tbe record discloses no error.
Affirmed.
All concurred.
PEOPLE v. GILBERT Opinion of the Court Bight 1. Constitutional Law —Criminal Law — Counsel —Ac- Investigation. cused—Focus An permitted accused must be lawyer to consult his when police process i.e., from investigatory shifts accusatory, when the focus of investigation is on the accused and its purpose is to elicit a confession from him. — Extrajudicial — 2. Constitutional Law Criminal Law State- Interrogation — n — — ments Custodial Self-Incrimination Pro- Safeguards. cedural Neither the exculpatory nor inculpatory statements of a defend- ant, stemming from his custodial interrogation, may be used [5, [7] [8, [10] [2] [3] [4] [1] 29 Am Jur 29 Am Jur 29 Am Jur 9] 6] 21 Am Jur 29 Am Jur 21 Am Jur 21 Am Jur 29 Am Jur 21 Am 53 Am Am Jur 2d, References 2d, 2d, Jur, Jur 2d, 2d, 2d, 2d, 2d, 2d, Evidence Evidence Evidence § 2d, Witnesses Criminal Law 390. Law 313. Criminal Evidence Evidence Evidence Evidence Criminal for Points § §§ 555. 555. § § §§ § 555-557. § 555. 862. 313. Law 555-557. § § §§ et in Headnotes seq. 390. v. procedural proseeution demonstrates that effective unless employed to secure defendant his safeguards were constitu- privilege against self-incrimination. tional Interrogation —Definition. Law —Custodial Criminal *2 questioning by interrogаtion means law en- initiated Custodial person custody a after has been taken into forcement officers deprived any signifi- of his freedom of action otherwise way. cant Reporting of 4. Law — Crime —Accusation. Criminal Reporting police a ordinarily of crime to the is not sufficient any possiblе suspect of itself transform conversation with a to into an official accusation. Interrogation Statutory Rape — — — Consti- Criminal Law 5. Rights. tutional Investigation statutory very rape complaint of a and the nature charge finger had itself were that the accusatorial of such by already pointed specifically complainant at defendant been and, prime only suspect, de- being and to no and one else rights his fendant was to be informed of constitutional entitled legal he was inter- to remain silent and have counsel before rogated by regarding complaint. a detective that Sufficiency—Constitu- 6. Criminal Law —Custodial Duress — Rights. tional advised de- when a detective Sufficient custodial duress existed statutory get patrol discuss a police car to fendant into require be rape complaint against him that defendant made rights to have to remain silent and warned of his eonstitutional questioning. present attorney during the an Opinion Dissenting Quinn, P. J. Evidence—Extrajudicial Statements —Admis- Law — Criminal sibility. extrajudicial testimony regarding admis- Detective’s defendant’s night complainant when she on the that he was sion that properly raped conceded admitted where defendant he custody sthtement, that made that when hе was not in his eonstitutional entitled to he warned was not of therefore the ad- rights investigation neither had reached and the not versary accusatory stage he was him since nor for- mally charged his admission. he made three months until after Akp 21 Opinion of the Court Credibility—Appeal 8. Witnesses — Error. sitting ju/ry trier trial without a is the and must
A court of fact appel- credibility normally witnesses determine an of questions credibility. late court will not review of Credibility—Determination—Courts. 9. Witnesses — judge’s decision, entirety, Trial oral when in its did not read credibility using show that he tested witnesses’ collateral germane lawsuit, not that he used information infоrma- only personal tion based on known to him as the information fact, credibility trier or that his determination witness’ of of depended community, person on the status in the of contrary excerpts contentions to the were based on defendant’s taken out the decisional eontext. Evidence—Prеsumption 10. Criminal Law — of Innocence. presumption The innocence is overcome when there is no doubt charged ample the crime was committed and there is evidence beyond to establish a reasonable doubt com- defendant mitted it. *3 from Appeal Rex B. Lenawee, Martin, J. Sub- mitted Divisiоn October 7,1969, at Lansing. (Dock- et No. 5,883.) Decided February 4, 1970.
Wallace was convicted of statutory rape. Defendant appeals. Remanded for a new trial.
Frank J. Kelley, Attorney General, Robert A. Derengo ski, Solicitor General, and Harvey A. Kosel- ka, Prosecuting Attorney, for people. Jr.,
Edward J. Engle, for defendant on appeal. Before: P. J., and Bronson and T. M. Quinn, Burns, JJ. a J. At in
Bronson, nonjury trial the Lenawee Gilbert, defend- County Circuit Wallace Court, v. Gilbert Opinion op the Covet statutory rape.1 He was sen- convicted ant, was- year to ten six months and term of one tenced to a years prison. filed а motion then Defendant verdict, Prom this which was denied. trial, a new appeals. defendant rape January alleged occurred
The . complainant went months later the seven Some having raped charged-defendant with and the her. complainant was some seven At this time pregnant. months Snyder, July with а 28,-1967David detective
On County department, de- sheriff’s saw the Lenawee City. through driving Cement Detective fendant Snyder home defendant to his and there followed regard allegations questioned made to the him Snyder complainant. detective On the was nected City investigating a not con- crime in Cement in uniform and dеfendant. He was with Snyder driving patrol Detective semi-marked ear. previous at- had several that there been testified tempts had home; defendant his that he to contact at occasion and defendant’s mother one talked with July 28, 1967 times. his father several On with Snyder to his home and followed defendant dеtective driveway, walked the' ear which de- into fendant him that sitting were and “advised brother his
I wanted to talk to him asked that he patrol car me which did.” come back Detective in- him we then “told were- * * * complaint vestigating made been anything proceeded if he about to ask him knew stated.” the incidеnts as *4 trial, At he claimed defense was alibi.
Defendant’s
night
complainant on the
he had not been with
objection
question.
of defense counsel detec-
Over
in
testify,
purpose
was allowed
tive
Rey
1
28.788).
(Stat Ann 1954
MOLA 750.520
§
§
21
442
446
Opinion on the Count
impeachment,
that in the
28,
conversation
complainant
being
1967defendant had admitted
January
1,1967.
(84
(1964),
In Escobedo v. Illinois
tigatory
accusatory
its focus is on the
—when
purposе
accused and its
is to elicit a confession—
system
adversary
begins
operate,
our
and, under
permit
the circumstances here, the accused must be
lawyer.”
ted to consult with his
(1966),
(86
In Miranda v. Arizona
The Court in Miranda then went on to state that: “By interrogation, questioning custodial we mean person initiated law enforcement officers аfter custody deprived has been taken into or otherwise any significant way.4 of his freedom of action in * * # “4 This is what we meant in Escobedo spoke when we of an in- vestigation which had focused on an accused.” say
I reading am unable to after conviction, requirements this record, that the of Escobedo and applicable Miranda are not under the facts here presented. urged
It is that when sheriff’s detective patrol “advised” defendant tó walk back to the car scope investigation of the had not narrowed greatly process so as to have shifted the “from in- vestigative accusatory”. accept argument.
I Ordinarily cannot reporting police of a crime to the is not sufficient in any and of itself to transform conversation with a possible suspect into an official accusation. How- charge ever, the nature of the involved here is such finger assuredly that the accusatorial had most been pointed, pointed specifically, at Wallace Gilbert prime and no one else. Thus Gilbert was the only suspect. as far as this Court knows the There was but one accused and that one was Wallace Gil- complainant, already bert. The unwed seven months pregnant presented at time, at herself County Lenawee sheriff’s officeand named Wallace rapist. Gilbert as the peculiar
Under the circumstances to this case, when the sheriff’s detective “advised” Gilbert that he wanted to talk to him in his car and in- 21 op Opinion the Court defendant of the accusation made formed custodial duress at him, there was sufficient laid down principles time to adherence require That the formal com and Miranda2 in Escobedo *6 does not 3, until November 1967 did not issue plaint already- had finger the accusatorial alter the fact that at defendant. 1967 to the 28, point July begun by Snyder dеtective by was not told Defendant rights, constitutionally-protected certain had silent to remain right were the which among to the pos Due present. counsel have right the to by received information to the taint attached sible 1967 and the 28, weight Snyder detective testim Snyder’s to detective judge the trial by given trial, excluding for a new I remand would ony,3 Meaning n 2 Interrogation” within the Kamisar, “Custodial See of and Com- Miranda, the Constitution —Sources Law and Criminal Kamisar states:- (1968), p where Professor mentaries fairly plain if a man it Supreme Court has made “I the think warning given. has to be really restrained, no not custody, is is not in- warnings dispеl is to the coercion Miranda of the The function process, interrogation surroundings the custodial herent from generated when he is torn suspect of anxieties to relieve the familiar environment atmosphere, police-dominated and thrust into a typically anxieties lesser but still substantial him the tо relieve or created of by ‘on street’ restrained the when he is uniformed officers squad added.) (Emphasis questioned or in the car.” there 3 opinion, court, in found: its The trial that the defendant knew apparent to the court case, it was “In our except Snyder. Mr. witnesses the rebuttal about all they is whethеr or not of the court here principal concern “The people’s principal David part of the case. called as have been should if hadn’t taken been. In fact the defendant Snyder could not have If had Snyder not have testified. the defendant stand, Mr. could the admitted him, Mr. Snyder making Mr. attributеd the statement have the statement claimed to Snyder have testified. Here could not bearing the case ease did have on the merits of would not been made that Kennedy rejected testimony in Supreme Court the the adding weight Snyder’s testimony valuable in Mr. was [sic]. impeach testimony tending the defendаnt.” other taking testimony judge Upon completion of the the trial stated: “I I and as I listened to am convinced this as read these notes there are two witnesses here and two witnesses alone these witnesses who'I am willing believe, telling who of their were it best 449 People v. Dissenting Opinion by Quinn, P. J. testimony Snyder as to dеtective the conversation July 28, and defendant between detective (1968), App 14 Mich v. Marsh 1967. See T. M. J. concurred. Burns, (dissenting). P. J. On the of Miranda basis Quinn, (1966), (86
v. Arizona 384 436 Ct 1602, US S 974), L Ed 2d 694, 10 ALR3d and Escobedo v. Illi (84 (1964), L 2d nois US 478 S Ed Ct 977), opinion majority was holds that it revers testimony ible error to admit the of detective impeachment Snyder’s testimony purposes. If under inаdmissible and Escobedo Miranda impeachment it standards, not admissible for purposes, People (1969), v. Hosack 16 Mich I 552, and would concur in reversal.
However, defendant concedes he was that not custody Sny- when he made the statement related supra, apply. der Miranda, and that does not On January record, this 1, which an discloses offense reported July, 1967 that was to the purported and the inadmissible statement made dur- ing investigation July a casual 28, 1967 with no charge against formal defendant until November say proceedings am 1967,1 unable that accusatory adversary defendant had reached thе or stage my on 28,1967. In view, neither Miranda ability Lotha evening. the whole of truth this two witnesses Those were Kelley Snyder. and Dave “I’m convinced telling that David was truth he the when said he talked to the defendant he sometime and said that January about first complaining been out with the witness. “I am complaining convinced Evelyn that the Tim witness and and and the deliberately defendant at times did not tell us the truth from (Emphasis the added.) witness stand.” by Quinn, Dissenting Opinion P. J. Sny- applies to this ease
nor Escobedo, supra, properly testimony admitted. der’s that the trial In defendant contends addition, determining improper judge employed an method give credibility failed of and that he witnesses proper weight presumption of innocence. alleged pre- respect in the With to the first error ceding paragraph, that a trial defendant concedes jury sitting of fact and court without is the trier credibility of witnesses, must determine normally appellate an court will not review questions credibility. of In this instance, however, judge defendant contends that the trial the determined credibility by using employed which a method germane its as test information collateral and not question, employed to the lawsuit in as test in- its personal formation based information known only to the trier of and a fact, method that indicated predisposition particular of the trier of fact to a finding credibility depending community of on the support of In status contention, decision the witness involved. of this excerpts defendant cites from the oral judge given of the trial from the bench аt excerpts the conclusion the trial. These taken out of context lend some credence to defendant’s position, oral but when the decision is read in its entirety, support position. it does not defendant’s regard. I find no error in this says proof prose- Further, defendant of the presumption cution was not sufficientto overcomethe judge innocence, trial therefore the failed to presumption give proper weight. its On this charged record, there is no doubt that the crime *8 ample committed, and the record contains evidence beyond establish reasonable doubt that defend- presumption. committed it. This ant overcomes the I would affirm the trial court.