Defendant was charged with first-degree murder in the death of his wife. MCLA 750.316; MSA 28.548. On October 23, 1974, a jury convicted him of second-degree murder. MCLA 750.317; MSA 28.549. He was sentenced to 10 to 20 years in prison. Following a denial of a motion for a new trial, defendant appeals as of right.
During the jury’s deliberations the trial judge entered the jury room to talk to the jury. In denying defendant’s motion for a new trial the trial judge set forth an explanation of what happened in the jury room. "The fact is, nothing was discussed in the jury room except the time when the jury would recess and resume, which, of course, are subjects within the Court’s sole discretion.” However, this is error.
In
Zaitzeff v Raschke,
"With what was written so plainly in 1961 for Wilson v Hartley,365 Mich 188 [112 NW2d 567 ], concerning *199 the indefensible practice of entering the jury room while the jurors are there, no matter by whom done, one would think that this Court had said enough to prevent what took place here. Yet the practice seems to go on, and on, and on, encouraged occasionally by 'no prejudice shown’ conclusions of a group of Justices who cannot hope to know what was said, or done, or gestured, or hinted, in the sanctity of the jury room.”
Two months later in
People v Heard,
"The facts in this case provide an even more compelling reason for preventing this type of action. In Zait-zeíF, counsel for both parties agreed that they did not need to be present when the jury returned its verdict (p 580). In a sense, they acquiesced to the action of the trial court, which we found to be reversible error. In the instant case, defense counsel strenuously objected, and neither counsel, nor the jury, had requested that the judge bring in these exhibits. On this issue the judgments of the Court of Appeals and of the trial court should be reversed.”
Both Zaitzeff v Raschke, supra, and People v Heard, supra, make it clear that the defendant does not have to show prejudice when the trial judge enters the jury room. As Justice Black noted, there is no opportunity for the defendant to prove prejudice since he does not have an "invisible witness” present in the jury room. Intra-Court memorandum of Black, J., quoted in Zaitzeff v Raschke, supra at 581-582 (T. E. Brennan, J., dissenting). Errors of this type can easily be avoided by simply requiring the jury to return to the courtroom for any discussion with the trial court. In this way all the parties will know whatever discourse took place.
Since this case must be remanded for new proceedings, we will address ourselves to the one
*200
point raised in the defendant’s brief that merits discussion and is likely to occur if there is a new trial. Following a
Walker
1
hearing the trial court ruled that certain statements taken in violation of defendant’s Miranda
2
rights were admissible for impeachment purposes.
3
Statements taken in violation of
Miranda
are only admissible for impeachment purposes if they are trustworthy.
Harris v New
York,
Unlike the trial court in
People v Reed, supra,
the trial court in this case specifically stated that the defendant’s statements were excluded from the prosecution’s case in chief because of a violation of
Miranda
and not because the statements were involuntary. In reviewing the results of a
Walker
hearing this Court reviews the entire record of the hearing and makes an independent decision, but we give great deference to the findings of the trial court since it is in a much better position to evaluate the credibility of various witnesses.
People v Hummel,
After reviewing the record of the Walker hearing that lasted four days, we are unable to find any evidence that the defendant was physically coerced into making the inculpatory statements. *201 There is no indication that the defendant was subjected to physical force, threats or restraints. Nor is there any indication that the defendant was promised anything for making the statements.
However, it is possible for the defendant to be subjected to a more subtle form of coercion so as to render the statements involuntary. See,
e.g., People v Bland,
Since the evidence on this question is disputed, the issue becomes one of credibility. Where the basic question is one of credibility, we will not disturb the trial court’s findings of fact.
Accord, People v Szymanski,
Reversed and remanded.