On October 31, 1975, defendant was convicted of assault with intent to do great bodily harm less than murder 1 following a jury trial in Bay County Circuit Court. He was sentenced on November 24, 1975, to a prison term of 3 to 10 years and now appeals.
At 9 p.m. on September 2, 1975, defendant, James Baker, Florence Turner and others began drinking alcoholic beverages at defendant’s house on Grant Street in Bay City, Michigan. Defendant and Baker had been friends for 14 years. Defendant was the "common-law” husband of Florence Turner, who was Baker’s mother. All three individuals lived at the residence.
Around 11:30 p.m., Baker left the house and purchased a pint which, upon his return, he and the defendant consumed in the kitchen while the rest of those present slept. Two additional pints were purchased during the night.
After defendant and Baker returned from purchasing the third pint at approximately 7 a.m., John McLemore, a mutual friend, arrived for a visit. Shortly afterward, defendant and Baker began arguing over Baker’s relationship with his mother. As the disagreement escalated, Baker arose twice from his chair at the kitchen table and gestured or moved toward defendant in a threatening fashion. The second time Baker stated, "I’ll slaughter you”. Defendant drew a .22-caliber pistol and fired a single shot which hit Baker in the left thigh.
Immediately after the shooting defendant had *149 an overnight guest, Quincy Flinnon, drive him downtown. Defendant was arrested for the assault at approximately 1:30 p.m.
On appeal, defendant argues that the lower court erred in permitting the prosecution to (1) admit a statement obtained in violation of
Miranda v
Arizona,
While this court agrees that error was committed by the trial court in admitting a statement obtained from defendant in the absence of the required warnings and in refusing the proposed instruction on the defense theory, we do not decide whether such errors, standing alone, require reversal. Upon an examination of the entire record, however, this Court is convinced that defendant was not accorded a fair trial and his conviction must be reversed.
People v Strodder,
Issues I and II
Defendant was arraigned on the charges arising from the shooting incident on October 14, 1975, and his trial commenced October 23. Immediately before trial began, defendant filed a motion in limine requesting that the prosecution be ordered *150 to refrain from questioning witnesses as to statements or admissions made by the defendant. On the first day of trial, the motion was argued orally before the court. Defense counsel argued that the prosecutor should be required to lay a foundation as to the admissibility of such statements, including evidence that they were constitutionally obtained, prior to their introduction. The court ruled that defendant’s motion was "a backhand motion for suppression of evidence” not properly before the court. The court further held that a mere request for suppression of the statements was insufficient to require a preliminary hearing on the matter.
During trial, Bay City Police Officer Eugene Van Allen, who had investigated the shooting immediately after its occurrence, testified that he observed the defendant at approximately 1:30 p.m. on Madison Street. The officer approached the defendant with his gun drawn, ordered the defendant to keep his hands in sight and checked the defendant for a weapon. Upon finding defendant unarmed, Van Allen put away his gun and questioned the defendant about the shooting. Defense counsel objected to any further testimony and was permitted to voir dire the witness.
In the officer’s opinion defendant was not intoxicated when the officer questioned him. While Van Allen testified that he had not arrested the defendant when their conversation occurred, he admitted having taken "control” of the defendant.
Defense counsel objected to the admission of defendant’s statement to Van Allen on the basis that defendant had not been advised of his constitutional rights. The prosecutor responded that the questioning was investigatory rather than custodial. The trial court ruled that since defendant *151 was not under arrest, but only in custody, his statement was admissible.
Officer Van Allen thereafter described his conversation with defendant:
"I said, 'Did you shoot a guy?’, and his response was —he asked me, 'Is he dead?’ I said, 'No, he’s in the hospital.’ At that time, Mr. Robinson stated to me, he says, 'Then what difference does it make?’, and that was the last I talked to him.”
After the discussion, Van Allen arrested the defendant and transported him to the police station where the officer advised defendant of his rights.
Following Van Allen’s testimony Bay County Police Officer Ronald W. Remington took the stand and testified that he questioned Robinson while the defendant was being booked. Defense counsel moved that the officer be precluded from testifying to defendant’s statement before showing that defendant had been advised of his rights and that defendant gave the statement voluntarily. The trial court ruled that the former should have been raised in a motion to suppress and that the latter was a question for the jury. 2
Officer Remington testified that defendant admitted shooting Baker and said that he had meant to shoot him in the leg. Defendant further stated, however, that he now wished that he had killed Baker.
Defense counsel renewed his objections to the admission of the statements in a motion for a new *152 trial. During oral argument on the motion, the trial court granted defendant a Walker 3 hearing. At the conclusion of the hearing, the court ruled that the absence of Miranda warnings at the time of defendant’s statement to Officer Van Allen rendered the statement inadmissible since defendant was then in custody. Because the fact that defendant shot Baker was never contested, however, the court ruled the error harmless. With regard to the second statement, the court was of the opinion that defendant had understood his rights and had voluntarily waived them.
Since defendant objected to the admission of his statements to Officers Van Allen and Remington at trial, and a
Walker
hearing has been held as to the voluntariness of the second statement, the issues raised by defendant have been properly preserved for appellate review.
People v Gould,
In Michigan a person upon whom a criminal investigation has focused must be given
Miranda
warnings before any statements made in response to police interrogation will be admissible into evidence.
People v Reed,
In reviewing the lower court’s finding that the statement given to Officer Remington was given voluntarily, this Court must examine the entire record and make an independent determination of the issue. The ruling of the trial judge will not be reversed unless this Court is convinced that a mistake was committed and the decision of the trial judge is clearly erroneous.
People v McGillen #1,
At the Walker hearing, Officer Remington testified that he assisted Officer Van Allen in bringing defendant into the station following his arrest. Van Allen advised defendant of his rights in Remington’s presence. Defendant indicated that he understood his rights, that he did not wish to consult with an attorney and that he was willing to discuss the shooting. Between 10 and 20 min *154 utes later, when defendant was being fingerprinted, Remington asked the defendant whether he had shot Baker and the conversation, earlier described at trial, occurred. Remington testified that at the time of the statement defendant was calm. No threats or coercion had been made or exerted to secure the statement. While the officer detected alcohol on defendant’s breath, he was of the opinion that defendant was not intoxicated. The defendant did not stumble or stagger, his speech was normal rather than slurred, his answers were responsive and he was neither confused nor disoriented.
Roger Bard, a clinical psychologist, was called by the defense to testify. At defense counsel’s request Bard had sought to evaluate defendant’s intelligence level and communicative skills by administering the Minnesota Percepto-Diagnostic Test 6 and the Wechsler Adult Intelligence Scale 7 to defendant at the Bay County jail.
The witness evaluated defendant’s intelligence as bordering on the dull normal range. He further testified that Robinson’s performance on sub-tests relating to communicative abilities was lower than his general intelligence levels would indicate: as to verbal communication, defendant functioned in the borderline between the dull normal and mentally defective ranges. The witness indicated that, on the basis of such tests and a diagnostic inter *155 view, he was of the opinion that the ability of the defendant to comprehend his rights was doubtful.
On cross-examination, Bard indicated that there had been a fair amount of confusion at the jail when the tests were administered which would significantly affect the ability of a subject to concentrate. In addition, defendant’s attitude was erratic, he was lackadaisical, did not care whether he performed well and simply wanted to complete the tests. At one point, defendant indicated that he did not feel well. Because of these factors, defendant’s test score could vary as much as 10 points which would conceivably place defendant in the high end of the dull normal range. The chance that defendant did not understand his rights was termed a "possibility”.
Defendant took the stand and testified that he was 48 years old, had attended school until the fourth or fifth grade, could not read and could not write anything but his name. According to defendant, he drank about a fifth of vodka on the morning of the shooting between the time he left the house and his arrest, having a drink as late as 15 minutes before his arrest. He also reiterated his trial testimony that he consumed alcohol throughout the night preceding the shooting. He was unable to remember being questioned by either Van Allen or Remington nor could he recall being advised of his constitutional rights. He further testified that he was unable to define a "right”.
On cross-examination, defendant admitted that he had been arrested before and had heard the warnings read to a criminal defendant previously. He explained the right to remain silent, the right to have an attorney present and the right to have a lawyer appointed. He testified that no physical force had been used against him and that everyone at the station had been "pretty nice”.
*156 The evidence presented at the Walker hearing presents a close question as to whether defendant knowingly waived his constitutional rights. This Court, however, is unable to declare the conclusion of the trial court clearly erroneous.
Defendant was able to explain various rights when questioned on cross-examination. In addition, his testimony at the Walker hearing regarding his level of intoxication varied significantly from that given at trial. At trial, defendant testified that he had stopped drinking early on the morning of September 3 and was not intoxicated when he went to an office of the Michigan Employment Security Commission at approximately 10:15 a.m. Whereas, at the Walker hearing defendant testified that he drank a fifth of vodka between leaving the house and his arrest. At trial defendant initially stated that he did not drink at all and then testified that he consumed about a pint of alcohol. In addition, at trial defendant was able to remember in detail the events which occurred during the morning of the shooting. Finally, defendant’s attitude and health during the time of the intelligence tests and the circumstances under which they were administered render the tests results of questionable accuracy.
Issue III
Defense counsel requested that the trial court give the proposed standard criminal jury instruction regarding self-defense. 1 CJI, 7:9:01, p 7-159, provides in relevant part:
"(2) In considering whether or not the defendant acted in lawful self-defense, you should carefully consider all of the evidence in light of the following rules:
"(3) First, at the time of the act the defendant must *157 honestly believe that he is in danger of being killed or of receiving serious bodily harm.” (Footnote omitted.) (Emphasis supplied.)
Instead, the trial court instructed the jury "that at the time of the act ** * * the Defendant must honestly and reasonably believe he is in danger of being killed or receiving serious bodily harm”. At the conclusion of the charge, defense counsel objected to the additional requirement that defendant must have "reasonably” believed he was in danger. The objection was also renewed, and rejected, in defendant’s motion for a new trial and is now reasserted on appeal.
From the earliest Michigan cases to the most recent decisions of the Supreme Court and this Court, the test of whether the use of deadly force is excusable or justified has been generally stated to include the requirement that the defendant’s belief be reasonable. 8 There are also cases, how *158 ever, that require only that the belief of the accused be honest or actual. 9 We agree with the committee responsible for the proposed jury instructions that the validity of a claim of self-defense ultimately depends upon whether the accused actually believes he is in danger of death or serious bodily harm. The fact that a defendant testifies that he honestly believed he was in danger does not require, as the prosecutor seems to argue, that the jury accept the defendant’s statement as true. The jury must determine the credibility of that statement just as it does every other statement made by the defendant or any other witness. And certainly the jury may and should be instructed that it may consider the reasonableness of the alleged belief in determining whether or not it actually existed in the mind of the defendant at the time of the assault. The ultimate question to be decided by the jury, however, is not whether a reasonable man under the same or similar circumstances would have believed himself to be in danger but rather whether this defendant truly had such a belief.
In determining whether one claiming self-defense believed he was in danger, the trier-of-fact *159 must examine the circumstances as they appeared to the accused, not as they actually existed.
"The first inquiry necessary is one which applies equally to all of the grounds of defense; and is whether the necessity of taking life, in order to excuse or justify the slayer, must be one arising out of actual and imminent danger; or whether he may act upon a belief, arising from appearances which give him reasonable cause for it, that the danger is actual and imminent, although he may turn out to be mistaken.
"Were a man charged with a crime to be held to a knowledge of all facts precisely as they are, there could be few cases in which the most innocent intention or honest zeal could justify or excuse homicide. The jury, by a careful sifting of witnesses on both sides, in cool blood, and aided by the comments of court and counsel, may arrive at a tolerably just conclusion on the circumstances of an assault. But the prisoner, who is to justify himself, can hardly be expected to be entirely cool in a deadly affray, or in all cases to have great courage or large intellect; and can not well see the true meaning of all that occurs at the time; while he can know nothing whatever concerning what has occurred elsewhere, or concerning the designs of his assailants, any more than can be inferred from appearances. And the law, while it will not generally excuse mistakes of law (because every man is bound to know that), does not hold men responsible for a knowledge of facts unless their ignorance arises from fault or negligence.”
Pond v People,
Among the circumstances to be considered are the relative size and strength of the parties,
People v Harris,
Michigan case law clearly emphasizes a subjective analysis of the circumstances surrounding the use of deadly force. A jury which is instructed to assume the defendant’s mental attitude and physical characteristics and to view the circumstances as they appeared to the defendant is in fact being instructed to decide whether the defendant is testifying truthfully in asserting an honest belief in imminent peril. While we do not believe that the instruction in the present case prevented the jury from making a proper determination of the asserted defense,
10
this Court is of the opinion that it
*161
would be better on retrial to use the language employed in the proposed standard jury instruction. See, Michigan Supreme Court Administrative Order, No 1977-1,
Issue IV
During trial defense counsel submitted to the court an instruction setting forth the defense theory of the case. The court refused to give it, stating that the instruction contained a recital of evidentiary matters and was too long. The court ruled that the instruction would be reduced without eliminating the defense theories.
During its charge to the jury, the trial court mentioned that a claim of self-defense was asserted and enumerated the legal principles involved. Defense counsel did not object to the court’s refusal to give the requested instruction.
In his motion for a new trial, defendant challenged the court’s decision. The court upheld its earlier ruling on the basis that the instruction submitted was a recital of facts as contended for by the defendant.
It is well-recognized that a defendant is entitled
*162
to have the jury instructed on his theory of the case if such an instruction is requested and supported by competent evidence.
People v McIntosh,
GCR 1963, 516 provides:
".1 At or before the close of the evidence, any party may, or at any time the Court reasonably directs, the parties shall file written requests that the court instruct the jury on the law as set forth in the request.
".7 It is the duty of the court to present to the jury the issues in the case and the theories of the parties. At the close of the evidence each party shall submit to the court a statement of the issues and his theory of the case as to each issue. * * * It shall be submitted in addition to requests for instructions submitted under subrule 516.1. The statement shall set forth as issues only those disputed propositions of fact which are supported by the evidence. The statement of the theory may include those claims supported by the evidence or admitted. ” (Emphasis supplied.)
GCR 1963, 516.7 has been held applicable to criminal proceedings. GCR 1963, 785.1(1),
People v Savoie,
The proposed standard criminal jury instructions provide:
*163 "The theory of the defense, if requested in writing, must be given if supported by any evidence. Counsel should submit a short factual statement embodying their theory.” 1 CJI p 3-33. (Emphasis supplied.)
Finally, in
People v Welke,
"[R]eversible error was committed by the trial court’s refusal to state the theory of the defendant’s case. The court’s instructions were confined to the law applicable.”
See, also,
People v Cummins,
On retrial, the circuit court is directed to give the factual theory of the defense if supported by any evidence.
Issue V
Besides challenging the admissibility of his statements in his motion in limine, defendant also requested that the prosecutor be ordered to refrain from referring to defendant’s prior criminal record. During argument on the motion, the trial court indicated that defendant’s record consisted of a 1950 conviction for unlawfully driving away an automobile and a 1957 conviction for attempted breaking and entering. The court ruled that the earlier conviction could not be used to impeach the defendant because of its remoteness. The prosecutor, however, was to be allowed to use the later conviction. Although defense counsel argued that the 1957 conviction was an invalid guilty plea, he gave no reason for the allegation. The court ruled, *164 therefore, that the presumption of the validity of the conviction prevailed.
Subsequently, during direct examination, defense counsel asked defendant if he had pled guilty to attempted breaking and entering in 1957 and defendant responded affirmatively.
In his motion for a new trial defendant argued that the trial court erred in ruling on the motion
in limine
because of the date of the conviction and because it was based on a guilty plea obtained in violation of defendant’s right to counsel. During oral argument on the motion, the circuit court held a hearing pursuant to
People v Moore,
On appeal, defendant renews his argument that the conviction was invalid and could not be used for impeachment purposes.
This Court agrees with the conclusion of the lower court that defendant failed to present sufficient evidence to require the prosecution to establish the constitutional validity of the conviction.
People v Moore, supra, People v Henry,
On appeal defendant does not reassert his contention that the trial court in permitting the conviction to be used for impeachment purposes abused its discretion. Nevertheless, this Court notes that the remoteness of the conviction dimin
*165
ishes the value of such evidence in demonstrating the credibility of the accused.
People v Penn,
Reversed and remanded.
Notes
MCLA 750.84; MSA 28.279.
The issue of voluntariness, once decided by the trial court, is not resubmitted to the jury. The jury’s determination regarding the statement of the accused is limited to assessing its weight and credibility.
People v Walker (On Rehearing),
Id.
Defendant also argued at the hearing on his motion for a new trial, and presently contends on appeal, that, granting the constitutional invalidity of his initial statement, his subsequent confession is inadmissible as having been obtained by exploitation of the primary illegality. Generally,
People
v
Radowick,
Defendant’s argument presents a question of fact. People v Radowick, supra. Because the trial court in the instant case did not expressly rule on defendant’s argument, we are unable to review the issue properly. Upon remand, the lower court is directed to make a determination regarding the issue.
In
Beckwith v United States,
Given Officer Van Allen’s testimony at trial, this Court finds no reason to reassess the position of the Michigan courts in light of the Beckwith decision.
The witness described the Minnesota Percepto-Diagnostic Test as "a brief screening instrument for assisting perceptual disturbances caused by organicity or personality disturbance”.
According to the witness, the "Wechsler Adult Scale is an individual administered intelligence test composed of eleven subtests that are divided into two broad areas, [it] characterizes a verbal scale and a performance scale. It is aimed at testing * * * for different abilities, from such things as short-term memory to verbal comprehension, of abstract concepts, the ability to sort out similarities and differences among common place objects and to classify these differences.”
People v Doe,
Patten v People,
Besides instructing the jury that defendant’s actions were to be judged in light of the circumstances as they appeared to him, the court charged:
"In deciding whether at the time that the Defendant feared for his life or safety, you should consider all the surrounding circumstances, *161 all the conditions of the parties, all the prior relations, and their [ojngoing relations that night, whether or not one was armed with a dangerous weapon and the other wasn’t, or both were, or whether the other party had the means to injure the Defendant in the nature of any attack or threat that was made against the party, the previous acts of brutality or threats or anything of that nature that may have existed of which the Defendant was aware.
"In this connection there has been evidence introduced in the case regarding alleged past acts of violence by James Baker, and bothering the Defendant and other persons in that those alleged past acts were known to the Defendant, and you may consider that evidence. Whether the Defendant reasonably believed the Plaintiff to be a person of cruelty and violence, you may consider such evidence as bearing on the likelihood that James Baker threatened the Defendant with bodily harm, and the reasonableness of the Defendant’s fear for his health and safety.”