People v. Mallory

Mallory 1984]

PEOPLE MALLORY PEOPLE HOWARD PEOPLE v LEWIS 64270, 65203, 8, (Calendar Argued Docket Nos. 65206. June Nos. 8-10). 28, 1, February December 1984. Released Decided Rehearings 1985. denied 422 Mich 1201. Bobby Howard, Mallory, Hughie Charles E. and V. Lewis were jointly by jury tried and convicted in the Recorder’s Court of Detroit, Gillis, J., Joseph first-degree felony A. murder. The Appeals, Kaufman, P.J., Riley Court of J.N. and D. C. Theiler, JJ., unpublished opinion per in an curiam in (Docket 78-2377), Kaufman, P.J., No. and N. J. and D. E. Hol- brook, Jr., Maher, JJ., published opinion per and R. M. in a (Docket 78-2959, 43838), curiam in Lewis and Howard Nos. appeal, alleging they affirmed. The defendants that were un- lawfully police detained under "reverse writs” and that Mallory during evidence of shoes seized from that detention performed and the results of blood tests on the shoes and an incriminating statement Howard should not have been admitted, they were denied their to be at a crime, view of the scene of the and that evidence that the victim had terminal brain cancer should not have been admit-

ted. opinion by Cavanagh, joined by In an Justice Chief Justice Levin, Kavanagh Supreme Williams and Justices Court held: during detention, statutorily Evidence obtained unlawful writ,” may such as a detention under a "reverse not be admit- employed trial where the detention was as a tool to [1, [1, 2, 4, 6, [3] [5, [6, ^[8] 29 Am Jur 2, 4, 9-11] 39 Am Jur 8 Am Jur 29 Am Jur 6] 21A Am Jur 7] 5 Am Jur 21 Am Jur 2d, 2d, 2d, References 2d, Bail and Evidence Habeas Evidence 292. 2d, 2d, 2d, Arrest 22. Criminal Law 692 et Recognizance Corpus §§ Criminal Law for Points in Headnotes 412, § § 1.§ 414. §§ § 50 et §§ seq. seq., 412. 915. 421 defendant; nor any type from a directly procure of evidence not have been that would be admitted evidence other are procurement. the defendants If direct but for the discovered writ retried, of the reverse as a result obtained evidence brain had terminal the victim evidence detentions and addition, are entitled the defendants is inadmissible. cancer by jury trial court. any present view ordered be at to writ,” whereby a underwent a defendant 1. "reverse The Detroit Court of corpus proceeding in the Recorder’s habeas judi- proceeding adjournment to by of the subjected and was proper being arraigned on cially approved before detention nullity, legal and a complaints without effect warrants was and bring statutory Failure to a having basis. or no constitutional promptly felony before person a warrant without arrested for a person’s arraignment and magistrate state violates a for rights rights of process afforded the Code federal due imposed exclusion of evi- law has Procedure. Case Criminal statutorily have remedy unlawful detentions where dence as a by defendants. employed tools to extract statements as been where, case, appropriate remedy in this such a as directly any employed procure evidence has been detention any person other evidence detained and extends from the procurement. for that been discovered but that would not have on reverse writs of the defendants In this case the detention generally employed evidence a device to marshal was as Thus, Mallory against shoes from them. evidence of seized during blood tests was inadmissi- the detention and associated Likewise, incriminating himself made ble. Howard’s statement during would was inadmissible. Such evidence the detention upon also be inadmissible retrial. indirectly acquired directly 2. from a Not all evidence or necessarily during statutorily detention is defendant a unlawful procured by exploiting Voluntary statements the detention. arrest, discovery, shortly made a ab- after lawful inadvertent general plan pattern against the sent a or to marshal evidence defendant, possession physical or of in the defendant’s evidence effects, among personal means his or evidence obtained sufficiently distinguishable purged be of the taint of unlawful detention are admissible. person- statutory right 3. A criminal defendant has a to be trial, dire, ally present during including voir of and selection evidence, challenges jury, presentation of of summation counsel, verdict, imposi- jury, of of the instruction rendition sentence, stage tion of other of trial where his substan- rights might adversely tial affected. A view is such a right present or of the to be stage Absent a waiver of a trial. disruptive disorderly right conduct because loss of trial, a during to be defendant has view. Testimony had terminal brain cancer was that the victim 4. first-degree prosecution murder and should

not relevant to a only purpose appeal to the was to admitted. Its not have been jury. sympathy and remanded. Reversed Boyle dissented.

Justice Although authority for the "reverse there was no lawful 1. defendants, whether, issue is of the the real writ” detention writ, arraignment regardless delay 72-hour in the following probable cause an arrest based on the defendants suppression requires and evidence of of Howard’s statement performed Mallory’s the blood tests on them which shoes and period Because of unlawful detention. were obtained defendants, probable cause to arrest because there was detention was not used as a tool to extract Howard’s their statement, Mallory’s and because shoes could have been law- arrest, suppression fully at the time of his of the evi- seized required. constitutionally dence was not There is no federal right prompt arraignment. guaranteed to Where the state violated, requirement prompt arraignment statutory of is exclu- appropriate remedy only sion evidence is as a where the of delay employed been as a tool to extract a statement. has Expansion physical of this rule to exclude evidence is not proper, nor is the conclusion that the detention was used to Mallory’s obtain Howard’s statement and shoes correct. hearing 2. Failure to have an immediate to set bail does not

require during exclusion of the the defen- evidence obtained dants’ detention. The defendants had no constitutional or statu- tory right They to an immediate bail determination. were opportunity afforded an to have bail set at the reverse writ proceeding. They judicially were also advised of their constitu- rights proceeding, purposes tional at the reverse writ one of the prompt arraignment requirement. Application of the of the exclusionary ground rule in this case on the the defen- right arraignment dants were denied their to formal must be paramount impor- based on the conclusion that the is of integrity system justice. tance to the of our of Because a pretrial modification, subject release determination remains to by arraignment stage itself it is insufficient to make a critical proceeding. of the Unlike a situation in which a confession is during period obtained of unlawful detention and would not 421 statutory defendant’s the violation of the but for have existed independent of rights, physical existed evidence this case the detention. inspection nothing jury a bare more than 3. Where a view crime, statute neither the constitution nor a of the of the scene permit presence. requires The refusal a defendant’s jury present of the at a view of the scene to be defendants require their convictions because reversal of crime does possibility any reasonable of the case under the circumstances prevented by careful instruc- prejudice the defendants was view, scope jury, and the limitation of the tion of the addition, presence the view. In the defen- defense counsel at particularized presented to the court of no statement dants by presence at view. The the defense their benefit to by presence jury at a view is not mandated of a defendant jury is a view of a scene rather than constitution. A view purpose to understand Its is to enable evidence. testimony in which a heard in court. It is not a situation is confronted with evidence. defendant Ryan, concurring, Brickley, joined by Justice stated Justice trial, subject part error of a to the harmless that a view is Where, cases, highly improbable that the as in these it is rule. defense, any presence could aid in his defendant’s view permitting to be should be error in not the defendant deemed harmless. (1980) App reversed. 296 NW2d

Opinion of the Court — — — Writs. 1. Criminal Law Evidence Due Process Reverse suspected felony by the murder The detention defendants informally police authority issued under of reverse writs Detroit, formal arrest or ar- Recorder’s Court of but without unlawful, raignment, was used was and because the detention procure directly it from the defendants rendered evidence incriminating from one defendant and state- evidence seized made another the detention inadmissible ments (Const 764.13, 1, 17; 764.26; 28.871[1], MSA art MCL § 28.885). — — — 2. Due Process Unlawful Deten- Criminal Law Evidence tion. detention, during statutorily such Evidence obtained a unlawful writ,” may under a "reverse not be admitted as a detention during employed as a tool to trial where the detention was defendant; procure any type directly nor of evidence from a may any be other evidence admitted that would not have been (Const 1963, 1, procurement discovered but for the direct art 28.885). 764.13, 764.26; 28.871[1], MCL MSA § Corpus — — 3. Habeas Due Process Criminal Law. bring person felony to Failure a arrested a for without a warrant promptly magistrate arraignment a before for violates the person’s process rights rights state and federal due afforded (Const by 1, 17; the Code of Criminal Procedure art § 764.13, 28.885). 764.26; 28.871[1], MCL MSA — — 4. Criminal Law Evidence Unlawful Detention. acquired directly indirectly Not all evidence or from a defendant during statutorily procured necessarily a unlawful detention is detention; by exploiting voluntary shortly statements made arrest, general discovery, after lawful inadvertent absent a plan pattern defendant, against or to marshal evidence physical possession among evidence in the' defendant’s his effects, personal sufficiently or evidence obtained means distinguishable purged to be of the taint of unlawful detention are admissible. — — 5. Criminal Law Constitutional Law Presence Defen- Jury—dant View. statutory right A present during criminal defendant has a be to stage rights might of a trial where his substantial affected, (MCL 768.3, adversely including 768.28; view 513). 28.1026,28.1051; MSA GCR Dissenting Boyle, J. — —

6. Criminal Law Evidence Reverse Writs. by‘a of a Evidence statement made defendant and of shoes of performed another defendant and blood tests them prosecution ñrst-degree felony murder not have should been suppressed ground following on the that their detention arrest authority on the of a "reverse writ" was unlawful where there probable defendants, was cause arrest the the detention was statement, not used as a tool extract the and the shoes could lawfully have been seized the time of the arrest. Arraignment. — — 7. Criminal Law Evidence Exclusion a statement obtained the detention of a ground statutory defendant on the that the defendant’s prompt arraignment appropriate only was violated is where the statement, delay employed was tool as a to extract the and the expanded physical rule should not be to exclude evidence which 421 Mich (MCL 764.13, 764.26; MSA independent of the detention exists 28.885). 28.871[1], — — Bail. 8. Criminal Law Evidence by of shoes of made a defendant and Evidence of a statement performed them in a tests another defendant and blood felony sup- ñrst-degree not prosecution murder should of ground pressed that the defendants were not immedi- on the ately opportunity to set there is an have bail because afforded right an determination. no to such immediate Jury— — of View. Law Presence Defendant 9. Criminal prosecution ñrst-degree permit the in a of Refusal to defendants felony present jury of to be at a view of the scene the murder require of their convictions where homicide does reversed any possibility the reasonable under the circumstances of case prevented by prejudice instruc- of to the defendants was careful view, scope jury, and of of of the the tion limitation the view, presence defense at the and the defendants of counsel any presented particularized of to the court no statement presence their at view. beneñt to defense Jury— — View. 10. Criminal Law Presence Defendant testimony jury presented A no is neither evidence view where in is confronted with nor evidence, situation which defendant is, rather, understanding jury but an aid to the court; presented purposes which has for evidence been right confrontation, part it is not a of the trial at which the present. defendant has to be Opinion Brickley, J. Jury— —

11. Criminal Law Presence of Defendant View. trial, rule; part subject error A view is of a to the harmless highly presence improbable where it is that a defendant’s defense, permitting view aid in error in not could (MCL defendant to be should be deemed harmless 28.1026). 768.3;MSA Kelley, Frank Louis J.. J. General, Attorney O’Hair, Caruso, John D. General, Solicitor Prose- Reilly Wilson, Edward cuting Attorney, Deputy Jeffrey Caminsky, Chief, Appeals, Civil for the Prosecuting people. Asistant Attorney, Charles Burke for defendant Mallory. People Mallory Court Rabinovitz, & P.C. Steven Rabino-

Bernstein (by vitz), for defendant Lewis. Kraizman) &

Kraizman Kraizman Jack J. (by for defendant Howard.

Cavanagh, J. Defendants were aby convicted murder, felony 750.316; first-degree MCL 28.548, MSA and were statutorily sentenced the imprisonment. mandated term of life The Court of Appeals convictions,1 affirmed their and we granted applications defendants’ for leave to ap- peal.2

I. Facts 12, 1978, On January at about 10:30 p.m., O’Dell Cheatham was beaten and stabbed in a Detroit men, An alley. eyewitness two saw whom he could beating kicking and identify, the victim near a car. man, That witness also saw a third whom he could identify, seated in the car the driver’s position. The witness the police contacted and relayed descriptions of the assailants and of the thereafter, car. Shortly only a few blocks from the crime, scene of the police on officers routine patrol saw three men standing near an apparently dis- abled vehicle. time, At that defendant Howard stated to the police that the disabled vehicle was his. minutes, Within patrol officers received a radio dispatch that three men were wanted for the felonious assault on O’Dell Cheatham. Defendants Lewis and the disabled vehicle fit the 1People Mallory, unpublished opinion v per curiam of the Court of Appeals, (Docket 26, 78-2377); decided November People 1979 No. v Hughie People Howard, 359; Lewis App 97 Mich 296 NW2d 22 (1980). 2People Hughie People Howard, Lewis and v Charles 417 Mich (1983); 331 People Mallory, NW2d 224 (1983). NW2d 224 Mich Opinion of the Court result, As a dispatch. descriptions relayed with It was defendants. arrested patrol officers it was discovered Subsequently, p.m. around miss- and watch were money that a small sum the fol- died person. from Cheatham ing lowing Cheatham’s during the as- inflicted injuries afternoon sault. 13, 1978, a January morning

During writ” from obtained "reverse police sergeant unique procedure A writ was a magistrate. reverse police sought justify through which Detroit See v Casey, detention of arrestees. police Another 305 NW2d following writ obtained a second reverse officer morning to be valid for thought because each was time, At officer noticed only day. one on Mallory’s be blood thought might what he shoes. defendants p.m. January

Around 5 on placed lineups. eyewitness were in several Mallory and Lewis as Cheatham’s identified O’Dell assailants. The witness also remarked on appeared jumped assailants to have Cheatham he the basis of that lay ground. as On statement, around 8 officer seized p.m., police Mallory’s shoes from him while he was deten- tion. did have a warrant. The officer search evening January

Also the How- police ard’s the to her sister arrived at station visit investigating accompa- brother. officers One cell visiting nied Howard from his During to a area. brief officer journey, the course of that remarked to Howard that and Lewis had as positively been identified Cheatham’s assailants. response, In identified, if Howard stated that were they identified,

he was he had been because evening January with 12. How- them entire had remain ard been advised of his to silent previous by another officer. day sometime the issued, Arrest and defendants warrants were People Mallory op the Court arraigned on the finally morning were of January charged 1978. Defendants were with first-de- murder, gree predicated an felony underlying were larceny, jointly. tried trial, At rigorously all defense counsel cross-ex- eyewitness amined O’Dell Cheatham’s beat- attempt an to show that the witness’ ing identi- fications of defendants and of the car suspect. were response, prosecution moved that the jurors taken crime scene so that they could observe firsthand the view which the eyewitness apartment. had from his judge permitted The trial view, but, jury although all defense counsel view, were during the did not allow defen- dants to accompany jury. trial,

During the course of Mallory’s shoes were admitted into evidence. Expert testimony estab- lished that the victim’s blood was the type same as found on the shoes and that Mallory’s blood was type different. Howard’s statement police regarding officer identification was also ad- mitted into evidence. The jury returned verdict of guilty as charged.

II. Issues Defendants raise plethora of issues for our consideration. They all allege that the trial court erred so (1) as to require by: reversal excluding them from the (2) scene, view of the crime failing to instruct the jury that the underlying larceny for purposes of felony murder must have (3) felony, been a instructing so as to remove from its consideration the element mal- (4) ice, admitting testimony that the victim was dying cancer, (5) employing the struck jury selection method. Howard and Lewis also chal- lenge the voluntariness of Howard’s statement 421 the Court ren- counsel their trial that and claim police

the Individually, Mallory ineffective assistance. dered and associ- of his shoes that evidence claims suppressed; have been should blood tests ated quash his motions claims Howard a verdict, for new information, for a directed challenges denied; Lewis improperly were trial the reverse writs. under his detention Reverse Writ. A. defen- under which procedure reverse writ 60 hours before approximately were held for

dants and war- complaints arraigned proper being effect and be legal was "without rants citizen,” i.e., a the detention of justify employed or statu- having no constitutional nullity” is a "[i]t supra, pp 180-181. Defendants Casey, tory bases. challenge admissibility and Howard against pieces of evidence major trial of several from police them which were obtained to the pursuant two defendants detentions reverse writs. person subject felony a of a arrest

When warrant, a statutes require without two magistrate brought promptly before a person arraignment complaint for on a and warrant. peace person

"A for officer who has a an arrested unnecessary offense without a warrant delay shall without person magistrate take the arrested a before judicial charged the have been district which the offense is committed, magis- and shall complaint stating charge person trate against 28.871(1). 764.13; arrested.” MCL MSA shall, person "Every charged without felony with unnecessary arrest, delay before after his be taken magistrate and, being judicial other after officer rights, given opportunity informed as to his shall be an publicly any ques- to make any statement and answer People the Court regarding charge tions the that he desire to an- 764.26; MCL MSA 28.885. swer.” if Similarly, with less specificity, state consti- guarantee process tutional due of law requires prompt arraignment. 1963, an arrestee’s Const art 1, 17. Both the constitutional and statutory re- § quirements designed to are advise the arrestee of rights his constitutional and the nature charges against him impartial an judicial mag- istrate, to insure that rights the arrestee’s are not violated,3 and to afford the arrestee an opportunity explain make statement his conduct open Further, court if he so desires. prompt ar- raignment particular when, is of importance as here, a person is arrested without a warrant. In situations, such judicial arraignment provides determination probable cause which would not otherwise occur until the preliminary examina- tion.4 Finally, prompt arraignment affords ar- restee an to have opportunity his to liberty bail on determined.5 3Prompt arraignment prevents police conducting officers from se interrogations. Mallory States, 449; 1356;

cret v United 354 US 77 S Ct States, (1957); Upshaw L1 Ed 2d 1479 v United 335 US 69 S Ct (1948); Hamilton, 410, People 93 L 415-416; Ed 100 359 Mich 102 NW2d 738 judicial probable The dissent maintains that a determination of complaint cause was made after defendants’ arrests when the filed and arrest warrants were issued. was Regardless of whether this requirements, clearly determination satisfied constitutional it did not satisfy occurred three require 28.871(1). 764.13; Furthermore, MCL MSA this determination days arraignment after the arrests. The statutes only judicial cause, probable determination of but a prompt one. magistrate The dissent states that since the at the reverse writ proceeding opportunity "by ered. We authority bond, had the to set defendants were afforded an appearance” their to have the issue of bond consid disagree. 180, Casey, supra, As described in 411 Mich fn procedure generally the reverse writ was informal and without only purpose proceeding keep documentation. The was to custody issuing arrestee in without an arrest warrant. It therefore extremely unlikely magistrate would have been that the who allowed Opinion op the Court statutory right the aforementioned

Since arraignment prompt violated reverse was procedure, unlawful. detentions were writ defendants’ step whether next determine 6 Mallory’s shoes, results of the blood tests performed them, statement and Howard’s past, suppressed. we have been should have imposed appropriate exclusionary rule as the statutorily remedy unlawful detention whenever a employed a tool to extract a state has been as White, ment. See (1974), Michigan v den sub nom

NW2d 357 cert L White, S Ct 42 Ed 2d 843 420 US 95 (1975), the cited therein. These authorities given they excluded, are even if were statements might voluntarily, they have been because never illegal prear for made the detainee but the raignment delay. Physical evidence, contrast, in length prear regardless of the of the often exists raignment primary purpose delay. However, if the police exclusionary rule is to deter White against obtaining a de misconduct tainee, evidence imper which is the nature of the evidence missibly If obtained should be determinative. physical the ered evidence would not have been discov police exploitation by the for the

but illegal delay, suppression prearraignment re quired. exclusionary

We therefore hold that White applied statutorily rule un- shall be whenever employed lawful as tool detention has been directly procure any type from of evidence a de- police defendants without the benefit a warrant would detain also defendants to be freed on bail. have allowed 6 police purposes analysis, For we had of our assume probable those cause to arrest defendants and that arrests were However, do not those efiectuated in a lawful manner. we decide questions. People 241 v Court People McCoy, v 589, tainee. 29 Mich App See 591- (1971). Moreover, 592; 185 NW2d 588 the exclu- rule will bar sionary other evidence which would not have been discovered but for that direct procurement. all

Obviously, not evidence acquired or directly from a detainee indirectly statutorily procured unlawful will detention by exploiting e.g., detention, a statement volunteered ab- White, su- police prompting sent or questioning, pra, 424-425, pp a voluntary statement made People Stinson, arrest, shortly after a lawful 113 719, Mich App 730-731; 318 (1982); NW2d 513 People Ricky Smith, App 46-47; People Turner, v William (1978); NW2d 697 632, 638-639; Mich App (1970), NW2d inadvertent discovery physical evidence person detainee’s or personal the detainee’s effects absent a general plan pattern or to marshal Griffin, against detainee, evidence Mich App 477-478; NW2d any evidence obtained by sufficiently means distin- guishable purged to be of the taint of the unlawful detention. The will exclusionary rule not bar the admission trial of evidence which has been acquired exploitation absent of a statutorily un- Walters, detention. Cf. lawful 8 Mich App (1967). 400; 154 NW2d 542

Turning first to Mallory’s shoes and the blood performed them, tests on we find that that evi- dence was improperly admitted Unques- at trial. tionably, the shoes were during period seized a of Further, unlawful detention. we conclude that the police employed the detention to gener- as a device ally marshal evidence against the defendants. The shoes were seized 45 hours subsequent arrests, after two reverse writs had been obtained 421 Mich 229 242 the of Court Likewise, blood tests the lineup and a conducted.7 ob- would not have been on the shoes performed i.e., shoes, they the seizure but for tained distin- sufficiently means not obtained were of taint purged primary to of guishable be shoes, Mallory’s Accordingly, detention. unlawful tests, inadmissible blood were and the associated poison- fruit of the they because were the trial States, e.g., Wong Sun v United See, 371 ous tree. (1963). L 471, 488; 407; 83 Ct 9 Ed 2d US S Likewise, that he had been Howard’s statement arraignment, might prompt have been set the event of a bail In custody. in been Remember and would have 13,1978. January Defendants victim did not die until were arrested for felonious assault afternoon Thus, 12, January a on 1978. arraignment charged a prompt seen defendants with would have Accordingly, the on § offense. Const art 15. blood bailable the See might was. not have been discovered as it shoes (CA 1, 1966), Nelson, F2d cert den 386 Neither Hancock v 984; 1292; nor States v US 87 S Ct 18 L Ed 2d 234 United (1974),requires Edwards, a 94 S 39 L Ed 2d US Ct Nelson, petition corpus filed a habeas different result. In challenging defendants clothes, admissibility which had their bloodstained during illegal under been a detention that was state surrendered held, statutory law. first as a matter federal constitu- during circuit law, properly were seized 252, lawful tional clothes However, Nelson, supra, pp incident arrest. 255. search to law, procedural violation of court noted that the a matter of federal as arraignment statutes would have resulted prompt federal States, suppression Mallory, supra, v United under McNabb 608; L also noted US 63 S Ct 87 Ed 819 The Nelson Court similarly that rily though obtained statuto- a state could exclude evidence statute, by judicial al- decision or unlawful detentions either However, Nelson, supra, pp yet 253-254. no state had done so. eight years adopted the Court White Nelson was decided before this exclusionary rule. Edwards, Supreme held that as a matter the United States Court law, lawfully been federal constitutional once an accused has custody, lawfully and is in his clothes searched arrested seized without warrant, if the and seizure occurs well even search processing, proba- no arrest and even if after the and administrative Edwards, Nelson, ble exists. like based this conclusion cause search require- exception warrant the "search incident arrest” Edwards, However, pp statutorily supra, no unlawful ment. prearraignment delay such a 802-805. had had If there been occurred Edwards. required delay, McNabb-Mallory rule could have the federal suppression. People Mallory v op Opinion the Court Mallory evening and with Lewis the entire was improperly admitted at trial. The statement was during period obtained of unlawful detention. delay arraign- Further, we conclude that employed only gener- was not ment ally as device to against defendants, marshal evidence but as a tool to extract Howard’s statement was obtained from statements defendants.

only after the lineup had been conducted and he was confronted Mallory with positively fact and had Lewis been statutorily identified. When a unlawful employed is as a detention tool extract a state- imposed traditionally ment, we have the White exclusionary rule.8_ starting point An identical is result reached when the is a consti tutionally uct solely prod unlawful A detention. statement which is illegal Sun, constitutionally Wong anof arrest inadmissible. p supra, Although 491. voluntary Howard’s statement been have Const, V, 1963, 1, 17, IV, under US Am and Const art it was still § illegally art Const, purposes obtained for of US Am and Const Dunaway York, 200, 217; 2248; 11. See § New 442 US 99 S Ct (1979). inquiry respect 60 L Ed 2d 824 with to the latter two provisions constitutional is whether was a there causal connection Illinois, between the unlawful and detention the statement. Brown v 590, 602; (1975). 2254; 422 US S95 a 45 L Ed 2d To answer that (1) inquiry, lapse we look at: the time the arrest between and (2) statement, misconduct, (3) flagrancy any intervening of official (4) circumstances, occurring circumstances, i.e., antecedent events Brown, supra; 603; Dunaway, supra, p before the arrest. See Emanuel,

People App 163, 177; (1980), 98 Mich 295 NW2d 875 lv (1982), Michigan, den 414 Mich 871 cert den sub nom Emanuel v US 103 S a 75 L Ed 2d 461 case, lapse In this the time between Howard’s arrest his regarding statement were no identification was in circumstances of 40 hours excess and there intervening period tending time delay. Rather, only intervening ameliorate the significance the of of circumstances conducted, lineups part were the several which were general police plan against to marshal evidence defendants and positively which and Lewis were identified. Howard’s state- ment was a direct result of those identifications. Those identifications place would have taken but for the unlawful of all detentions lineup intervening defendants. A "is not the kind of circumstance dissipate tends which of 6; taint” an unlawful detention. App 595, 604, Casey, fn 302 NW2d 248 aff’d 411 (1981).Finally, Mich the Court of 305 NW2d 247 we endorse the comments Appeals involving made in another case reverse writs: 'flagrant’ also "We conclude that the official misconduct here was op the Court View. Jury

B. motion for prosecution’s the response scene, counsel defense of the crime view jury conditions and weather lighting out that pointed beating same, i.e., Cheatham’s not be the would 1978, 12, January p.m. 10:30 at occurred view would the conditions, proposed while snowy Accord- in 1978. May, hours during daylight occur view, that claiming the opposed defendants ingly, Neverthe- "confusing prejudicial.” it would that the the view so permitted less, trial court the sight "line of with acquainted could become jury However, ruled judge the trial and distances.” the view be- could not be defendants of secu- problem have a thought he cause "[w]e they to whether problem as have a and "we rity” hand- in go to the scene they if prejudiced are scene, the departed for jurors the cuffs.” Before the differences them of trial reminded judge conditions. lighting and weather Mallory’s reviewing panel Appeals The Court of jury of the the issue did not address conviction raised, stating instead view, it although was "[w]e allegations other reviewed defendant’s have error that no reversible and find trial court error reviewing the convic- However, panel exists.” the trial found that and Howard tions of Lewis from excluding defendants court had erred carefully extremely conspicuous. exam- If one it the sense ines the obvious. believe was matter, illegality of the arrest proceedings in this however, imply that we By finding, we do not wish so Casey, improperly.” intentionally question acted the officers in p supra, 604. it Accordingly, at trial because was inadmissible Howard’s statement poisonous tree. the fruit of the was illegal seizure connection between is a close causal "When there likely confession, only more of the evidence is exclusion and the to deter similar future, use of the police but misconduct integrity compromise courts.” likely is more evidence supra, p Dunaway, 218. People Mallory 245 v op the Court Nevertheless, view. the error was harmless be- cause there was no reasonable possibility preju- absence. People Hughie v dice from defendants’ Lewis, 359, 365-366; 97 Mich App 296 NW2d 22 (1980).

Permitting the to view the crime scene is a matter the discretion of within the trial court. 1963, 513; 768.28; GCR People 28.1051;9 MCL MSA Pizzino, v 97, 106-107; 313 Mich 20 NW2d 824 Greeson, People (1945); 230 Mich 203 Frontera, People (1925); NW 223 Mich (1923); NW Winney, 347, 366-367; People v (1917); NW 119 Auerbach, 23, 46; NW That discretion exists even after has Pizzino, begun supra. Although a its deliberations. trial court does not abuse its discretion by refusing view when jury conditions at the crime scene have changed between the time of the crime and trial, Frontera, the time of supra, we cannot say the trial court abused its discretion in permit- ting a view in this case because lighting and weather conditions were not identical. jurors The were fully apprised by the trial judge and by defense counsel of those Further, differences. the basis of the evidence which the jurors had already heard and on their own common knowl- edge, they would have been alerted such differences. The view properly helped the jurors to better understand the distances involved and to weigh the evidence trial, admitted at especially the credibility of the eyewitness.

We must now decide whether defendants were entitled to present be at the A jury view. criminal defendant has a specific statutory right pres- ent during his or her trial:_ 9This years. state has had a similar statute for almost 140 See RS 1846, 165, 10; 6077; ch 7956; 9569; § 1857 CL 1871 CL How Stat 1897 11952; 15825; 17321;

CL 1915 CL 1929 CL 1948 CL 768.28. 229 421 Mich 246 Opinion of the Court felony shall be tried unless person indicted for a "No 768.3; during the trial . . . .” MCL present personally MSA 28.1026.10 Auerbach, supra, pp 47-48, this v People

In right present a defendant’s to be recognized Court However, gener- our decisions have view. jury at a the defen- upon turned a determination ally at right failing appear this dant had waived Connor, v bail, People 295 free on the view while Kasem, v (1940); 230 1, 6; Mich NW Auerbach, (1925); 278, 283; 203 NW supra, p question presented 47.11 No of waiver is statute, long history. See RS Like the view this statute has 165, 7955; 9568; 1846, 9; 6076; 1857 CL 1871 CL How Stat ch § 11951; 15824; 17296; 1948 CL 768.3. CL 1915 CL CL impliedly Similarly, right trial an accused’s to be at Clauses, Const, guaranteed by US the federal and state Confrontation 337, 1, Allen, 338; VI; 1963, 20; 90 S art Illinois v 397 US Am Const Ct § Clauses, Const, (1970), 1057; US 25 L Ed 2d 353 the Due Process 97, 1963, 1, Massachusetts, XIV; 17; Snyder 291 US Am Const art § (1934), impartial 105-106; 330; right to an 54 S Ct 78 L Ed 2d 674 and the 108, 1, Medcoff, 113; jury, 20; People Const art § (1955), Morgan, grounds People v 400Mich NW2d 537 overruled on other Michigan, Cargile 434 US 255 NW2d 603 cert den sub nom presence is also 98 S Ct 54 L Ed 2d 454 grounded Snyder, supra, p in common law. 107. presence Snyder, Supreme that the of a defen- Court held required by Process Clause to the extent that dant at trial is a fair and the Due Id., just hearing pp 107- would be thwarted his absence. However, Confrontation 115. neither the Due Process nor the required presence view since a view Clauses is neither a the defendant’s part purposes of these clauses. of trial nor evidence for Id., 107-108, 113-115, Nevertheless, specifically pp 118-122. the Court courts, regulate procedure of its noted that each state is free to fairness, conception policy accordance with its own provide Id., protection p 105. Most more to a criminal defendant. question Snyder which had decided the at the time was decided states Id., done so of their state constitutions and statutes. had on the basis upon interpretation pp today our our 118-119.We too base decision 28.1026, law, 768.3; pursuant case to our MCL MSA related supervisory our courts. See United States v justice authority in over the administration of criminal (CA 6, Walls, 1220, 1223, fn 3 443 F2d 1971). Raider, 131, (1931), 137-138; People v 256 Mich 239 NW 387 present dispute defendant was there was a factual the view. as to whether Hull, People Although issue raised in v was v op the Court here since requested each defendant that he be present during the view.

Auerbach did not articulate specifically source of a right defendant’s present be at a Although view. jurisdictions are split over whether a jury part trial, view is of a see 21A Am 2d, Law, Jur Am 915, Criminal pp 379-380; 75 § 2d, Trial, 72-86, Jur pp 181-190; 30 1357; ALR §§ (Chadbourn 597; Wigmore, ALR Evidence rev), 342, p therein, and cases cited we § are persuaded it is. A right defendant has a to be present during dire, the voir selection of and sub- sequent challenges to the jury, presentation evidence, counsel, summation of instructions jury, verdict, rendition imposition of sen- tence, and any stage other of trial where defendant’s rights might substantial be adversely e.g., Snyder Massachusetts, v See, affected. 291 US 97, 106-108; 54 S 78 L (1934); Ct Ed 2d 674 People Medcoff, 115-117; 73 NW2d grounds People overruled on other (1955), Morgan, cert (1977), 400 Mich 527; 255 NW2d 603 Cargile Michigan, den sub nom 434 US S Ct 54 L (1977); 2d, Ed 2d 454 21A Am Jur Law, §§910-924, 374-388, Criminal pp and cases Thus, cited therein. right at trial is independent of and considerably broader scope than of confrontation. 21A Am Jur supra, 2d, 902, p 368. §

A jury view may provide a defendant with an opportunity to render assistance to defense counsel at, during, or after example, its occurrence. For being present, a defendant might ensure that jurors do not engage improper conduct re- porting to defense counsel improprieties which the Further, latter did not observe. any familiarity 449, 465-466; 49 NW 288 this Court reversed defendants’ grounds convictions on the misconduct the view. 229 421 Mich

248 Opinion Court jury view the area of has with defendant changes recognition significant might lead to pointed jurors out to which should be the area Although argument. testimony a defen- or later impart knowledge of the area to defense dant can presence prior view, the defendant’s counsel significant likely obser- make it more will Finally, the defense are made. vations of aid to importantly, a defendant unfamil- most even and may make observa- the area of the view iar with during can be area the view which tions of that might passed and which on to defense counsel directly the defense.12 aid previously may noted, his

As waive defendant right present jury view affirmative to be at a by failing appear at the view when consent or liberty Furthermore, if the he is at to do so. during disorderly conduct trial is so defendant’s disruptive that cannot be continued while his trial present, right he present lose his to be is defendant jury entirely. See Illinois v

at a view Allen, L 337, 342-343; 90 Ct 25 Ed 397 US S (1970).1 353 2d 3 decide, claimed, that the refusal Defendants have not nor do we present jury to allow defendants to be at the view denied them the right to effective assistance of counsel. 13However, presumption indulge every courts must reasonable Furthermore, against if right present trial. loss of the to be lost, willing right is it can be reclaimed as soon as defendant Allen, appropriate supra, p 343. to conduct himself in an manner. jury If the defendant waives or forfeits his to be at a view, it at is clear that no additional evidence can be introduced Raider, 138; People supra, Winney, 196 Mich view. fn 256 Mich v 347, 366; Auerbach, 47; Hull, (1917); supra, 163 NW 119 176 Mich supra, light holding jury part 86 Mich 466. In of our that a view is trial, Although we need not whether the is evidence. decide view itself prior uniformly purpose our view is the evidence 406; of a decisions have held that the understand, only apply, weigh to enable the to better trial, Woods, People 405- admitted at (1924); 235, 240-241; People Harrigan, NW 306 (1922); Auerbach, Winney, supra; supra, jurisdic- NW other 21A tions and authorities have concluded that a view is evidence. See op the Court expressed

The trial judge two reasons for deny- (1) ing presence defendants’ the jury view: (2) security problems, potential prejudice to defendants because the jury would see them in handcuffs. This Court recognized has that: " shackling 'Freedom from manacling of a defen- dant recognized the trial of a long criminal case has been important component as an of a fair and Jur, impartial 14 Am Law, trial. Criminal 132. Ordi- § procedure narily such permitted should be only to prevent escape prisoner prevent or to him injuring from bystanders and officers of the court or to ” quiet peaceable maintain a People Duplis- trial.’ 100, sey, 103-104; 380 Mich (1968), 155 NW2d 850 quoting (CA Hudspeth, 300, Odell v 189 10, F2d 302 1951), cert 342 den US 72 S Ct 96 L Ed 656 (1951). Also, Anderson, 155, 389 190-191; Midi (1973), 205 NW2d 461 affirming 578, App 582- 583; 185 NW2d 624

Consistent with those principles, a trial court may, discretion, exercise of its determine that shackling of the defendant when in pres- ence of the jury at a view is necessary on the basis of previous conduct of the defendant or other manifest Nevertheless, circumstances. in most in- stances, the presence of guards armed should be Allen, See, sufficient. supra, pp 343-344; generally, People v Kerridge, 20 184, Mich App 186-188; 173 People v (1969); NW2d 789 Havey, Mich App 69, 76; 160 lv den 381 Mich 756 NW2d 629 (1968); People v Thomas, William L App Mich 118, 126; 134 NW2d 352 (1965); 21A 2d, Am Jur Law, Criminal pp 295-302. § judge trial did not articulate why he be- 2d, Law, § 915, pp 379-380; Am Jur 2d, Trial, Criminal 75 Am Jur (6th pp 189-190; Jones, ed), 15:24, 60-63; pp § Evidence § Mc (2d Cormick, ed), 216, pp 537-539; Wigmore, Evidence § Evidence (Chadbourn rev), 1803, pp 340-346, § and cases cited therein. the Court view at presence defendants’ that lieved defendants’ risk that security such pose would retrial Since be denied. should to be right this deci- whether not decide need we required, is If a view error. reversible sion constituted take all retrial, court should the trial upon held defendants’ necessary protect steps reasonable safety as well as present, right to be large. community jurors and Issues. C. Other attention. also merit our other issues

Several the victim First, evidence graphic testimonial cancer, in the resulting loss brain had terminal arm, at trial over the was admitted of his use logical We fail to see of defendants. objections had to defen- this evidence legal relevance murder As felony prosecution. first-degree dants’ review- Appeals when stated Court aptly and Lewis: of Howard ing the convictions us, physical "In the victim’s condition the case before any in the case. completely irrelevant issue was There was no contention or that self-defense aggressor. eyewitness There testi- decedent was the mony resulted was beating concerning that brutality no need to Cheatham’s death. There was money testimony bolster the mother’s was in his left that decedent’s pocket by bringing up his illness. We find admitted, testimony erroneously as its was only purpose appeal sympathy was to Lewis, Hughie jury.” supra, p 367. The panel reviewing conviction did not Mallory’s issue, address this it Al- although was raised. though we may have found this error to have been beyond harmless a trial free reasonable doubt errors, of other as to and Lewis especially who positively eyewitness, were identified Rather, we do not question. merely decide that we People Mallory Dissenting Opinion by Boyle, J. point out that this evidence should not be admit- any involving any ted at retrial of the defendants. Finally, any we believe that if errors occurred in jury the trial court’s selection methods or its regarding felony they murder, instructions occur at will any involving any retrial of the defen- People Miller, dants. See NW2d Aaron, and (1980), respectively.

672; 299 NW2d 304

III. Conclusion Defendants’ convictions are reversed and this case is remanded to the Recorder’s Court of De- proceedings opinion. troit for If Mallory during consistent with this retried, the defendants are the shoes seized from pursuant his unlawful detention performed two reverse writs and the blood tests those shoes are inadmissible as evidence. The regarding statement identification obtained from pursuant Howard his unlawful detention two reverse writs is also inadmissible as evidence. Evidence that the victim had terminal brain can- against cer is inadmissible all of the defendants. Although the trial court did not abuse its discre- by ordering tion scene, view of the crime defendants are entitled to be view which is ordered. Kavanagh

Williams, C.J., JJ., Levin, J. Cavanagh, concurred with majority’s

Boyle, J. I dissent from the conclusion the defendants’ convictions must be reversed because their detention under a "reverse writ” requires suppression of a statement and evidence during they obtained the detention and because permitted accompany were not to a view of the scene. 421 Mich Dissenting Boyle, J. Arraignment Delay Writ

I. Reverse there is no has held that Although this Court detention for the reverse writ authority lawful 179; 305 People Casey, 411 Mich proceeding, (1981), not resolve holding this does NW2d reverse writ is em- where the whether question automatically required. is suppression ployed writ had no that the reverse Casey, only we held real of the detention. The legality on the effect whether, regardless in this case is issue writ, arraignment in the delay a 72-hour reverse following defendants an arrest based of the requires suppression of defendant probable cause statement and evidence seized Howard’s Thus, I with the agree of detention.1 period question that resolution of this turns majority 764.13; of MCL MSA upon whether violations 28.871(1) 764.26; require MSA 28.885 and MCL suppression challenged evidence. assumes, purposes analysis,

The for majority probable that there was cause to arrest the defen dants. I would hold that there was cause probable given to arrest my conclusion that there were "facts circumstances 'sufficient to warrant prudent man in believing [suspect] had ” an offense.’ Ger committed or was committing Pugh, stein v 854; 420 US 95 S 43 L Ct Ed 2d 54 (1975).2 Dean, People (1981); App See 110 Mich 313 NW2d 100 Johnson, App 253-254; v Antonio 271 NW2d 177 (1978) (Kaufman, J., concurring). 2Despite cause, majority probable the fact it assumes York, Dunaway nevertheless 2248; relies on New US S Ct prosecutor 60 L Ed 2d 824 a case in which the conceded probable that majority defendants, there was no cause to If arrest the defendant. the the suggesting probable that there was no cause to arrest disagree finding. testimony then I with that indicated police patrolling that a car was the area of East Canfield and Mt. police green Elliot in Detroit when the saw Buick with a smashed-in Mallory by Dissenting Opinion Boyle, J. probable an cause,

Given arrest based on majority nevertheless concludes that defendant physical Howard’s statement and the evidence suppressed they must be during because were obtained period prearraignment delay. The majority states "the state constitutional guarantee process requires of due of law an ar- prompt arraignment.” majority restee’s as lists purposes requirements: for these to advise the rights arrestee of constitutional and the nature charges, rights to ensure that those are not opportunity violated, to afford the arrestee an liberty have his on bail determined and to open and, make a statement in court in the case person where a warrant, is arrested without a prompt probable have a The determination of cause. analysis which follows demonstrates that the purposes require- statutory fundamental of the satisfied, ment have been and that there is no Michigan prece- reason in or federal constitutional warranting dent the conclusion that an exclusion- ary applied rule should these circumstances.

Initially, prompt arraignment I note that requirement rule, but, is not a constitutional rather, is a rule formulated the United States Supreme supervisory "[i]n Court the exercise of its authority jus- over the administration of criminal tice the federal courts.” McNabb v United States, 332, 341; 318 US 63 S Ct 87 L Ed 819 (1943).3Properly require- stated, the constitutional standing rear end. Three black men were beside it. A few minutes earlier, report came over the radio of a felonious assault took place approximately away previ- two blocks and less than one hour ously. green The assailants were described as three black males in a damage police Buick with to the rear of the vehicle. I find that probable had cause to arrest the defendants on the basis of number of observed, car, similarity description men of the and the proximity of the car to the scene of the crime. 3See, also, States, v United 354 US 77 S Ct 1 L Ed 2d 1479 Boyle, J. Dissenting Opinion requirement of a ment is a Fourth Amendment pre- judicial probable cause as a determination following requisite liberty to extended restraint of Pugh, supra. case a arrest. Gerstein this judicial probable determination of cause was made days three issued. after arrest when arrest warrants respect requirements statutory With for arraignment, prompt agree majority’s I with the past exclusionary that in the observation rule employed appropriate remedy has been statutory as an for a "[o]nly delay

violation when the has employed been as a tool to extract a statement.” People White, 404, 424; 221 NW2d 357 (1975). disagree I cert den US with expansion majority’s require the suppression of this rule to the evidence and with the physical conclusion that the detention in this case was used as a tool to obtain Howard’s statement and Mallo- ry’s shoes. majority correctly

The states that one of the purposes prompt arraignment requirement for the rights. is to advise the arrestee of his constitutional however, The reveals, lower court record that Howard was twice advised of his constitutional rights prior making by his statement: once police judge officer and once at the reverse proceeding writ and that all also defendants were charges advised of the nature of at the reverse proceeding. writ

Prompt arraignment assures that the accused is judicially rights, advised of his constitutional mak- ing subsequent police interrogation submission to Wright, likely. less See 1 Federal Practice & Proce- (2d ed), proce- § dure dure 72. While the reverse writ justify not be used to an otherwise illegal People Casey, supra, detention, it does not rights given actually follow that advice of should Dissenting Opinion Boyle, J. similarly nullity, particularly treated as successfully where, here, as it cannot be contended purpose obtaining delay was for the confession.4

Moreover, if the had not even defendants been rights, of their constitutional the circum- advised stances of the police did not officer’s conversation part of "words or actions on the consist police police . . . that the ably likely to elicit an should know are reason-

incriminating response from suspect.” Innis, Rhode Island v US 100 S Ct 64 L Ed 2d 297 police particularly officer’s comments were not suggestion evocative, nor there was susceptible. particularly defendant was There is no subjected assertion that Howard was to continuous interrogation up gave to the time he this state- At ment. was the time Howard made this statement he being transported Thus, to visit his sister. he given impression was not that he would be incriminating held incommunicado until an state- ment was obtained. respect right

With afforded to the arrestee liberty determined, to have his on bail I note that the defendants had constitutional5 statutory6 right conviction,” to bail "before but provision interpreted neither right has been to confer a to an immediate bail determination. This supported by conclusion the observation that prisoners, the case of misdemeanor immediate bail required by statute, 780.581; is 28.872(1), MCL MSA suggests implicitly

a fact which required.7 immediate bond would not otherwise be Indeed, the bail statute allows a court to set bail

4 Hamilton, (1960). People 410, 359 Mich 102 738 NW2d 5 Const art 15. § 6 seq.; seq. MCL 765.1 et MSA 28.888 et 7 Dixon, (1974). See 749 NW2d Dissenting Opinion by Boyle, J. only given prose after due notice has been to the cuting attorney. 765.3; MCL MSA 28.890. support

Further for this conclusion is drawn procedure corpus from the for writs of habeas requires physical production pris- which judge oner before a propriety for a determination of the Pending of further detention. determina- prisoner’s tion of the lawful basis for the deten- jail, tion, he bail, be released on remanded to brought before the court from time to time until proper the court determines whether or not it is discharge People McCager,

to him. Mich right Thus, NW2d there is no although magistrate to immediate bond proceeding certainly at the reverse writ had the authority lawful bond, to set and defendants were opportunity by appearance afforded an their to have the any considered, issue of bond and to make they

statement chose to. certainly interpret While this Court is free to Michigan require higher Constitution to protection standard for of our citizens than grants that which the United States Constitution proce- commands, citizens virtue of its employed only dure here not met but exceeded constitutional commands under both the United Michigan States Constitution and the Constitution. Application exclusionary of an rule in the in- stant case must be on based the conclusion that an arraignment accused’s to formal is of such paramount importance integrity of our system voluntary that a statement made after warnings, physical Miranda as well as evidence pursuant which could have been seized to an probable suppressed. arrest cause, must be I do not provisions statutory read the relevant constitutional and require "right” enforcement of a People Dissenting Opinion Boyle, J. arraignment through the immediate exclusion voluntary evidence and of a relevant statement given prior setting to the of bail. disturbing particularly majority’s

I find ex- supra, physical White, tension of question. evidence Since this Court has never arraignment probable said immediate after a required, police cause arrest since were holding incommunicado, not producing defendants but were regular

them at intervals before a judge, punish them, I can find no reason to or the people delay. of this state for this This result apparently prisoners would mean that all must be arraigned pain within hours of their arrest on regardless evidence, loss relevant of whether that evidence has been discovered coercive exploitation delay. means actual of the While majority couches its result terms evi- procured "directly” detainee, dence from a the fact of the matter is the evidence became known to the police they because discovered a witness who said "stomping he had seen defendants on the head” of It deceased. was this witness’ statement which delay shoes, led to the seizure of the and the can only be relevant because "but for” its existence likely beyond the shoes would have been the abil- ity police to reach. majority opinion

Footnote 7 of discloses this analysis. majority there notes that defendants charged were with until felonious assault the dece- they might died; dent therefore been bailed have they arraigned "[accordingly, out had been might blood on the shoes not have been discovered as it was.” Whether defendants would have been able make bail and what it have are would been pure supposition, specula- matters of but it is this exploitation argument i.e., rests; tion on which the 421 by Dissenting Opinion Boyle, J. (and being custody, in the shoes but for defendants blood) the would never have been discovered.8 suppression physical majority’s of evidence during Mallory from defendant the unlaw- seized support precedent no in ful detention finds the required this Court this Court. While suppression has. physical evidence obtained in viola- statutory right tion of a defendant’s to immediate People arrests, in bail cases of misdemeanor (1974), Dixon, 691; 222 NW2d 749 it has physical not extended that rule to evidence seized during period delay or identification obtained arraignment following probable in an arrest on felony. cause for the commission of a during period A confession obtained of unlaw- delay arraignment, ful rily given, might before even if it is volunta-

never have made been lengthy Thus, defendant but for the detention. inculpatory such a confession is evidence never would have existed but for the violation of statutory rights. physi- contrast, the defendant’s testimony cal evidence or identification inde- exists pendently of the defendant’s detention. While an may police unlawful detention result in the learn- ing existence the evidence or facili- evidence, tate the seizure of the the evidence does not result the existence of

from the unlawful e.g., See, Nelson, detention. 249, Hancock v 363 F2d (CA 1966), cert den US 8 1 can see little distinction between this situation and that of an probable county individual arrested on Friday, magistrate, cause in an outstate on a (or later) awaiting arraignment Monday who while Sunday evening is observed on to have blood on his shoes. delay In each situation "but for” the the shoes would not have been Indeed, only hypothet noticed and seized. ical situation and the instant case is that distinction between this procedure the reverse writ employed agree here benefited I the defendants. cannot that a statute (and passed in the context of conditions which then now in certain areas) presence arraigning judge did not assure the immediate of an was intended to exclude evidence under these circumstances. Dissenting Opinion by Boyle, J. which found error suppress no the failure evidence of a dead body and defendant’s clothes an seized unlawful detention of the explained: defendant. The court "In might cases arguably, confession there situations, certain over-long be a causal connection between the impatience,

detention the confession. The delay might frustration and confusion have tended in the involved to induce confession. "When, case, as in the instant the evidence obtained

during fact that had the surrender under of their man, delay body is the of a murdered illegally jail his murderers were detained in no causal relation to the existence location of

body. We have held above at the time of the appellees clothing, of they their were subject lawful arrest and to constitutional search so, persons. if they But even it not and were statutorily illegal they were still under detention when clothes, surrendered their fact of detention had nothing to do presence whatever with the of blood and telltale shoes.” plastic bits of and their fabric clothes and

The purpose rule "is to exclusionary deter —to compel for the respect guaranty constitutional in the only removing effectively way by available — Ohio, Mapp disregard incentive to it.” 643, 656; 1684; US 81 CtS 6 L Ed 2d 1081 States, Elkins v United quoting 206, 364 US 80 S Ct 4 EdL 2d 1669 Even if I were writing slate, on a clean the previously which cited not, cases I clearly show am I would not create a rule requiring suppression of this evidence. stated, Simply guarantee there is no constitutional result, which requires such the statutory right to prompt arraignment should not be extended to require suppression purposes where all of its were bymet the procedure employed.

Moreover, "imperative of judicial integrity,” 421 Mich 229 Boyle, J. Dissenting Opinion States, 222, does not supra, p Elkins v United In exclusionary the creation of an rule. require People McCager, 1962, this Court held in (1962) Souris, (opinion 116 NW2d 205 J.), in produced that when an accused was court in to a writ following response arrest of habeas corpus, the accused’s continued detention became the exclusive issued responsibility judge who the writ and a confession thereafter not made was Thus, period illegal detention. unlike Elkins, supra, p 223, the situation in there can argument no legitimate the court was "an accomplice[ in the willful disobedience” of the law. ] " instrument, rule is exclusionary 'blunt conferring altogether disproportionate an reward not so much in the interest of the defendant as in ” Burke, United States v large.’ that of society (CA 1975) 377, 2, J., 517 F2d (Friendly, quoting United Dunnings, States v 425 F2d 840 [CA 1969], cert den 397 US 1002 [1970]). deciding whether apply exclusionary rule a situa tion where the violation FR P 41 Crim was not of magnitude, Judge constitutional Friendly (1) examined whether there was "prejudice” defendant might the sense that the search have occurred would not have been so abrasive (2) if followed, the rule had been whether there was evidence of intentional and deliberate disregard provision of a in the rule.

Examining order, in these considerations reverse I note that in question conduct was not deliberate disregard of the statutory prompt-ar- raignment McCager, supra. requirement. See Moreover, this Court can take judicial notice the fact that a court order in effect at the time of the defendants’ arrest required production People Dissenting Boyle, J. defendants within 12 felony hours of arrest.9 Inso- concerned, "prejudice” far as is police could have seized properly Mallory’s shoes upon his arrest, and the delay arraignment did not ren- der the seizure of the shoes invalid. See United Edwards, States v 415 US 94 S Ct 39 L (1974).10 Ed 2d

Finally, while the interjection the decedent’s erroneous, terminal brain cancer was I agree with the Court of Appeals resolution of this issue.

I, therefore, conclude that on the record and case, under the circumstances of this the trial court did not err in admitting evidence of defen- shoes, dant Mallory’s the blood performed tests them, and the statement of defendant Howard. I Accordingly, would affirm the defendants’ convic-

tions. Jury

II. View Since a criminal defendant has a constitutional statutory trial, threshold question in determining whether error requiring reversal resulted from the exclusion of the defendants from the jury view is whether view part of the trial.

We answer as follows: where the nothing view is more than a inspection bare of the scene of the crime, neither the constitution nor statute re- quires a presence. defendant’s presents majority no rationale for the con-

clusion that a jury part view is of a In my trial. the fact that require dant’s another crime. In the Matter of (Murphy, shoes seized from him while he was in a different Trudeau, there was no J.). result, Detained since the probable Citizens, holding cause to believe that 187 NW2d 890 Interim Order of in that case was based on jail were evidence of February the defen- does not by Dissenting Boyle, J. be as- 28.1026 must 768.3; MSA MCL

judgment, the which of a protection to assure sumed protected. have would the defendant presence of benefits examples Snyder decided, time was the Sixth Amendment Confrontation Clause had not extended to been the right states. The Sixth Amendment to confront witnesses made on the was states in obligatory Texas, Pointer v 400; 380 US S Ct 1065; 85 13 L (1965). 2d Ed 923 of the Clearly, most basic "[o]ne rights guaranteed of the the by Confrontation Clause right is the accused’s in the Illinois v stage courtroom at trial.” every of his Allen, 337, 338; 397 US 1057; 90 25 L S Ct Ed 2d (1970). 353 In determining whether a view is a stage of a defendant’s trial under the Confronta- Clause, tion must purpose we consider the of that provision. constitutional

The right "literal to 'confront’ the witness at the time of trial forms the core of values the furthered Green, by the Confrontation Clause.” California v 399 US 149, 157; 90 S Ct 26 L Ed 2d 489 (1970). The Green Court the purposes stated confrontation thus: (1) give

"Confrontation: insures that the witness will his impressing statements under him oath —thus with the guarding against seriousness of the matter and the (2) by possibility lie penalty perjury; the of a for forces cross-examination, the 'great- witness to submit the legal engine est ever the discovery invented for (3) truth’; permits jury the is to decide the defen- dant’s fate to observe the of the in demeanor witness making statement, aiding assessing his thus in his credibility.” 399 US 158. Supreme repeat- United States Court has

edly stated interest secured primary Confrontation Clause is cross-ex- Alaska, v 308, 315; Davis amination. 415 US S 421 Dissenting Boyle, J. also Pointer Ct 39 L Ed 2d See protected Texas, is the inter- 380 US 406-407. Also testify- exposing in in the witness’ motivation est ing supra. impeaching Davis, and in a witness. primary purpose way, the Stated another Confrontation Clause is " prevent depositions 'to against parte being affidavits . . . used ex petitioner personal in lieu of a examination in cross-examination of the witness which testing opportunity, only of accused has an sifting the of the wit- recollection and ness, conscience compelling him to but of stand face to face they may him, look at with order that judge by upon the and the his demeanor stand gives testimony he manner which his whether ” worthy Douglas Alabama, of belief.’ he US 415, 418-419; 13 L Ed S Ct 2d (1965), quoting States, Mattox United 156 US (1895). 237; 337; 15 S Ct 39 L Ed 409 jury

The absence of a defendant from a view presented infringe testimony where no is does not right. Plainly stated, this constitutional there are confront, test, no and no to no to witnesses recollections place jury. It demeanor to before the is the testimonial in court to which the Sixth evidence right and Fourteenth Amendment to confrontation applies. not, The scene of the is in and of crime (Chadbourn Wigmore, itself, a 6 witness. Evidence rev), jurisdictions § 1803. Those that have consid- jury view, ered whether exclusion from a where no testimony presented, evidence or is violates the Confrontation Clause of the federal or state consti- tutions have answered

negatively. e.g., See, Jordan (1981); State, 328; v 247 Ga 276 SE2d 224 Com- Darcy, monwealth 259; v 362 Pa 66 A2d 663 (1949), (1949); Perkins, cert den 338 US 862 State v (1949). 810; 32 Wash 2d 204 P2d 207 Those cases jury part which held that a view was of a trial did 265 v Dissenting Opinion by Boyle, J. jury so because received evidence at the view. 597; Anno: ALR 30 See 90 Anno: ALR 1357. More- People Auerbach, over, 23; while v 176 Mich (1913), People Connor, 1; NW 294 NW 74 295 Mich holding have been cited as right present jury the defendant has a to at a be only gleaned view,11the rule which be from can Michigan regarding jury the nothing cases views is that testimony may

in the nature be taken People Hull, the absence the defendant. See (1891); People 449; NW v Auer- supra. purposes bach, I hold would that for of the Clause, Confrontation view where no evi- presented part testimony dence is is not a right at trial present. which the have defendants to be denying It could also be contended that infringes defendants’ attendance at the view right the defendants’ Sixth Amendment to effec- tive presence assistance counsel the defendants’ necessary to enable them confer every with Not counsel. restriction on counsel’s opportunity time or his client consult with right violates a Sixth defendant’s Amendment e.g., Slappy, See, 1; counsel. US S Morris Ct 75 L Ed 2d 610 A defendant’s right Sixth Amendment is to assistance of counsel. give The Sixth Amendment does not the defendant right proceedings to have counsel at which the defendant does not have a to be present, Ash, United States v 413 US 93 CtS (1973), although L Ed 2d 619 counsel’s presence essential, at the view under some protect circumstances, to the defendant’s other rights, e.g., preventing constitutional the admis- jury of course, sion evidence or misconduct. Of 11 2d, Law, 379-380; pp See 21A Am Jur United Criminal § Walls, (CA 1971). States v 443 F2d 1220 Mich Dissenting Opinion Boyle, J. that the defendants no claim here

there could be view, but of at the counsel denied assistance were opportunity they to only an that were denied Clearly, jury a view. at the with counsel confer direct consult Geders v United 47 right opportunity to restriction defendants’ unconstitutional, be with counsel would 1330; States, 80; 425 US 96 S Ct (1976); the Sixth Amendment L Ed but 2d counsel assistance of should effective right coun- a to be translated into be sel’s side wherever

and whenever instantaneous helpful the See be defense. consultation Commonwealth v 819

Curry, 368 Mass 330 NE2d (1975). purpose jury of view

An examination a presence supports conclusion further constitutionally statuto- is not or of rily defendant may properly de- The be mandated. view view,” than an "eviden- scribed as a "scene tiary rather (a large affixed view” view of evidence so courtroom). brought See that it into the cannot be (1981). State, 247 Ga 276 SE2d 224 Jordan jury Rather, A view of the scene is not evidence. purpose jurors scene is to enable the view testimony they heard to understand the court. Valenti v have Mayer, 4 NW2d (1942). purpose emphasizes jury view the view not a is confronted with evidence clusion that a in which the defendant is situation

against him. This con- supported is the observation further proofs place jury view can take after the deliberating. See are closed while Pizzino, 97; 20 NW2d right process, short, neither due confrontation, to effective assistance purposes support counsel, nor the of a view 768.3; MSA can the conclusion that MCL 28.1026 interpreted legislative properly directive as People 267 v Opinion by Dissenting Boyle, J. presence defendant’s at a To requiring jury view. is policy prefer- hold otherwise to substitute our Legislature. for of ence that Moreover, were I to hold that a jury view was trial, of part that conclusion would not automati require reversal of cally the defendants’ convic People Morgan, 400 tions. Mich 255 den cert (1977), 603 (1977), NW2d 434 US 967 this Medcoff, rule rejected Court of 344 (1955), 537 Mich 73 NW2d is injury presumed conclusively from every defendant’s Instead, absence the course aof trial.12 vWade United adopted this Court the standard of States, 356, 360; 441 App US DC F2d i.e., whether there is reasonable possibility prejudice.

My review the record persuades me that trial court prevented reasonable possibility through prejudice careful instruction of the jury. e.g., People Devin, See, 93 Ill 2d 444 NE2d (1982) (no error have view without defendant judge gave where trial carefully detailed concerning instructions the manner which view was to be conducted and defense counsel said present). he would Moreover, the only purpose of the view was sight to observe line of one of the testified, witnesses that had and the jury was instructed this the purpose was of the view.13 scope Because the limited, so view was defense counsel could have easily described to the defendants sight line of observed the jurors its decision to rest on federal the state think where Mr. Parker that the court wants alley and see that.” meaningful The trial There is distinction between the federal nothing Morgan judge to be present. instructed the you testified that he could look over towards the to make will be from the windows at grounds suggest alone. that "the main observation right Moreover, this to be Court present there intended no I 421 Boyle, J. Dissenting Opinion regarding what the defendants with and consulted Furthermore, they counsel defense it. knew about have noted the view and could was jurors from the trial deviated if the the record judge’s instructions. careful incorporate

Finally, its Court free to were this jurisprudence preferences policy of this into policy of that a state, not hold as a matter I would right per present a se to be defendant has criminal at a perhaps jury Many, most, trial courts view. jurors inadequate that remain staff to assure have together receipt of other from the and free of taint overhearing par- evidence, conversation such as impose ticipants on this scene. To or citizens at the mandatory reality the defen- makes a rule which problems presence, with the attendant dant’s assuring security defendant of an incarcerated the preventing prejudice to the defendant also while knowledge jury’s well of that fact from the produce simply will be a the result that views deprives any my judgment rule which In held. given jury may, situation, be a useful in of what a justified the evidence is aid to their evaluation of competing policy. only by superior determi- necessity for a there is a nation whether or not jury it for the defen- and whether is feasible view discretion of be left to the dant the trial attend should judge. State, 247 Ga v See Jordan (1981); Curry, v 276 SE2d 224 Commonwealth 195; 330 NE2d 819 Mass making court the trial In this determination possible defendant benefits to the must balance possible security view, from attendance at problems security problems, attends, if there are if the defendant will be him the defendant

whether having jury unduly prejudiced by see or shackles, this in and whether her handcuffs having outweighs any prejudice benefit People Mallory Brickley, J. case, In present. the instant defendant defendants particularized did not the court defense, of benefit and on this statement I error in the trial record find no court’s denial request.14 defendant’s J. I concur in the of Justice

Brickley, opinion Boyle all one. I respects, agree save cannot that part view is not of the trial. I jury point On Cavanagh. opinion with agree of Justice People Morgan, NW2d Cargile cert den nom (1977), Michigan, sub US 967 this Court held defendant’s subject absence from a trial is harmless error rule. Defendant has identified no actual harm as a result of not being present his view, no apparent harm from the Since record. view concerned a witness’ (the witness’) view of the crime scene from his apartment, it improbable is highly that defen- dant’s could presence have any way aided his defense. Therefore the error should be deemed harmless.

I do not find any impediment an application error 768.3; harmless rule MCL MSA 28.1026, which "person states that a indicted for a felony shall be tried unless personally pres- [not] ent during trial,” but persons charged with misdemeanors "at may their request own ...

put on trial in their absence.” This Court has previously looked whether the defendant was prejudiced by the absence at applying trial when may There peculiarly necessary be a situation it where is to have the defendant at a view. Such a situation arise where deny presence the defendant does not his at the scene a relevant case, time and his highly line of vision is relevant to an issue in the thus, making presence necessary his jury making to assure that the proper its place. Zakoura, observations from the Cf. 145 Kan (1937). 804; 68 P2d 11 The record in this case reveals that trial judge gave due consideration to these concerns. 421 Mich Brickley, J. Raider, People v See

the statute. Therefore, defendants’ convic- NW 387 affirmed. should be tions Brickley, J.

Ryan, with J., concurred notes the majority While view, reci- at a presence defendant’s by obtainable support- reasons policy are these benefits tation of require presence to judgment ing legislative legislative what the analysis rather than an to provide. intended guarantee was of the Due Process Clause purposes For the United States Con- Amendment of Fourteenth held stitution, Supreme States Court the United presence jury that a view without long ago Snyder of a trial. part the defendant was not 97, 107-108; 330; 78 Massachusetts, 54 S Ct US holding, the Court reasoned L Ed 674 so is the Fourteenth Amendment that far as "[s]o is a condi- concerned, of a defendant presénce fair and tion of to the extent that a process due absence, his hearing by would be thwarted just began to The Court its only.” and extent nothing if the were analysis noting that view by said inspection nothing more than a bare where one by anyone to direct the attention of the another, nothing feature or there would be there, if defendant could do he were and almost Moreover, nothing gain. he could according Court, Snyder process by due was not violated fact that counsel was permitted point partic- out ular request features of the scene and to the jury them, to observe reasoning the difference between a view at which and a everyone is silent view accompanied request to note particular features is one of degree nothing more. This conclusion rested on the practice centuries-old whereby "showers” were sworn to lead the features, the view point and to out certain historic distinction between these views and trials. Dissenting Opinion Boyle, J. Snyder Court did reach issue whether from defendant’s exclusion the view since, violated the Confrontation Clause

Case Details

Case Name: People v. Mallory

Court Name: Michigan Supreme Court

Date Published: Feb 1, 1985

Citation: 365 N.W.2d 673

Docket Number: Docket Nos. 64270, 65203, 65206. (Calendar Nos. 8-10)

Court Abbreviation: Mich.