People v. Mallory ( 1985 )

Cavanagh, J.

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

I. Facts

On January 12, 1978, at about 10:30 p.m., O’Dell Cheatham was beaten and stabbed in a Detroit alley. An eyewitness saw two men, whom he could identify, beating and kicking the victim near a car. That witness also saw a third man, whom he could not identify, seated in the car in the driver’s position. The witness contacted the police and relayed descriptions of the assailants and of the car. Shortly thereafter, only a few blocks from the scene of the crime, police officers on routine patrol saw three men standing near an apparently disabled vehicle. At that time, defendant Howard stated to the police that the disabled vehicle was his. Within minutes, the patrol officers received a radio dispatch that three men were wanted for the felonious assault on O’Dell Cheatham. Defendants Mallory and Lewis and the disabled vehicle fit the descriptions relayed with the dispatch. As a result, the patrol officers arrested defendants. It was around 11 p.m. Subsequently, it was discovered that a small sum of money and a watch were missing from Cheatham’s person. Cheatham died the following afternoon of injuries inflicted during the assault.

During the morning of January 13, 1978, a police sergeant obtained a "reverse writ” from a magistrate. A reverse writ was a unique procedure through which Detroit police sought to justify detention of arrestees. See People v Casey, 411 Mich 179; 305 NW2d 247 (1981). Another police officer obtained a second reverse writ the following morning because each was thought to be valid for only one day. At that time, the officer noticed what he thought might be blood on Mallory’s shoes.

Around 5 p.m. on January 14, 1978, defendants were placed in several lineups. The eyewitness identified Mallory and Lewis as O’Dell Cheatham’s assailants. The witness also remarked that the assailants appeared to have jumped on Cheatham as he lay on the ground. On the basis of that statement, around 8 p.m., a police officer seized Mallory’s shoes from him while he was in detention. The officer did not have a search warrant.

Also during the evening of January 14, Howard’s sister arrived at the police station to visit her brother. One of the investigating officers accompanied Howard from his cell to a visiting area. During the course of that brief journey, the officer remarked to Howard that Mallory and Lewis had been positively identified as Cheatham’s assailants. In response, Howard stated that if they were identified, he was identified, because he had been with them the entire evening of January 12. Howard had been advised of his right to remain silent sometime the previous day by another officer.

Arrest warrants were issued, and defendants were finally arraigned on the morning of January 15, 1978. Defendants were charged with first-degree felony murder, predicated on an underlying larceny, and were tried jointly.

At trial, all defense counsel rigorously cross-examined the eyewitness to O’Dell Cheatham’s beating in an attempt to show that the witness’ identifications of defendants and of the car were suspect. In response, the prosecution moved that the jurors be taken to the crime scene so that they could observe firsthand the view which the eyewitness had from his apartment. The trial judge permitted the jury view, but, although all defense counsel were present during the view, did not allow defendants to accompany the jury.

During the course of trial, Mallory’s shoes were admitted into evidence. Expert testimony established that the victim’s blood type was the same as that found on the shoes and that Mallory’s blood type was different. Howard’s statement to the police officer regarding identification was also admitted into evidence. The jury returned a verdict of guilty as charged.

II. Issues

Defendants raise a plethora of issues for our consideration. They all allege that the trial court erred so as to require reversal by: (1) excluding them from the jury view of the crime scene, (2) failing to instruct the jury that the underlying larceny for purposes of felony murder must have been a felony, (3) instructing the jury so as to remove from its consideration the element of malice, (4) admitting testimony that the victim was dying of cancer, and (5) employing the struck jury selection method. Howard and Lewis also challenge the voluntariness of Howard’s statement to the police and claim that their trial counsel rendered ineffective assistance. Individually, Mallory claims that evidence of his shoes and the associated blood tests should have been suppressed; Howard claims that his motions to quash the information, for a directed verdict, and for a new trial were improperly denied; and Lewis challenges his detention under the reverse writs.

A. Reverse Writ.

The reverse writ procedure under which defendants were held for approximately 60 hours before being arraigned on proper complaints and warrants was "without legal effect and may not be employed to justify the detention of a citizen,” i.e., "[i]t is a nullity” having no constitutional or statutory bases. Casey, supra, pp 180-181. Defendants Mallory and Howard challenge the admissibility at trial of several major pieces of evidence against them which were obtained by the police from defendants during detentions pursuant to the two reverse writs.

When a person is the subject of a felony arrest without a warrant, two statutes require that the person be brought promptly before a magistrate for arraignment on a complaint and warrant.

"A peace officer who has arrested a person for an offense without a warrant shall without unnecessary delay take the person arrested before a magistrate of the judicial district in which the offense is charged to have been committed, and shall present to the magistrate a complaint stating the charge against the person arrested.” MCL 764.13; MSA 28.871(1).

"Every person charged with a felony shall, without unnecessary delay after his arrest, be taken before a magistrate or other judicial officer and, after being informed as to his rights, shall be given an opportunity publicly to make any statement and answer any questions regarding the charge that he may desire to answer.” MCL 764.26; MSA 28.885.

Similarly, if with less specificity, the state constitutional guarantee of due process of law requires an arrestee’s prompt arraignment. Const 1963, art 1, § 17. Both the constitutional and statutory requirements are designed to advise the arrestee of his constitutional rights and the nature of the charges against him by an impartial judicial magistrate, to insure that the arrestee’s rights are not violated,³ and to afford the arrestee an opportunity to make a statement or explain his conduct in open court if he so desires. Further, prompt arraignment is of particular importance when, as here, a person is arrested without a warrant. In such situations, arraignment provides a judicial determination of probable cause which would not otherwise occur until the preliminary examination.⁴ Finally, prompt arraignment affords the arrestee an opportunity to have his right to liberty on bail determined.⁵

Since the aforementioned statutory right to prompt arraignment was violated by the reverse writ procedure, defendants’ detentions were unlawful. ⁶ The next step is to determine whether Mallory’s shoes, the results of the blood tests performed on them, and Howard’s statement should have been suppressed. In the past, we have imposed the exclusionary rule as the appropriate remedy whenever a statutorily unlawful detention has been employed as a tool to extract a statement. See People v White, 392 Mich 404, 424; 221 NW2d 357 (1974), cert den sub nom Michigan v White, 420 US 912; 95 S Ct 835; 42 L Ed 2d 843 (1975), and the authorities cited therein. These statements are excluded, even if they were given voluntarily, because they might never have been made by the detainee but for the illegal prearraignment delay. Physical evidence, in contrast, often exists regardless of the length of the prearraignment delay. However, if the primary purpose of the White exclusionary rule is to deter police misconduct in obtaining evidence against a detainee, the nature of the evidence which is impermissibly obtained should not be determinative. If the physical evidence would not have been discovered but for the exploitation by the police of the illegal prearraignment delay, suppression is required.

We therefore hold that the White exclusionary rule shall be applied whenever a statutorily unlawful detention has been employed as a tool to directly procure any type of evidence from a detainee. See People v McCoy, 29 Mich App 589, 591-592; 185 NW2d 588 (1971). Moreover, the exclusionary rule will bar any other evidence which would not have been discovered but for that direct procurement.

Obviously, not all evidence acquired directly or indirectly from a detainee during a statutorily unlawful detention will be procured by exploiting that detention, e.g., a statement volunteered absent police prompting or questioning, White, supra, pp 424-425, a voluntary statement made shortly after a lawful arrest, People v Stinson, 113 Mich App 719, 730-731; 318 NW2d 513 (1982); People v Ricky Smith, 85 Mich App 32, 46-47; 270 NW2d 697 (1978); People v William Turner, 26 Mich App 632, 638-639; 182 NW2d 781 (1970), the inadvertent discovery of physical evidence on the detainee’s person or in the detainee’s personal effects absent a general plan or pattern to marshal evidence against the detainee, People v Griffin, 33 Mich App 474, 477-478; 190 NW2d 266 (1971), or any evidence obtained by means sufficiently distinguishable to be purged of the taint of the unlawful detention. The exclusionary rule will not bar the admission at trial of evidence which has been acquired absent exploitation of a statutorily unlawful detention. Cf. People v Walters, 8 Mich App 400; 154 NW2d 542 (1967).

Turning first to Mallory’s shoes and the blood tests performed on them, we find that that evidence was improperly admitted at trial. Unquestionably, the shoes were seized during a period of unlawful detention. Further, we conclude that the police employed the detention as a device to generally marshal evidence against the defendants. The shoes were seized 45 hours subsequent to the arrests, after two reverse writs had been obtained and a lineup conducted.⁷ Likewise, the blood tests performed on the shoes would not have been obtained but for the seizure of the shoes, i.e., they were not obtained by means sufficiently distinguishable to be purged of the primary taint of the unlawful detention. Accordingly, Mallory’s shoes, and the associated blood tests, were inadmissible at trial because they were the fruit of the poisonous tree. See, e.g., Wong Sun v United States, 371 US 471, 488; 83 S Ct 407; 9 L Ed 2d 441 (1963).

Likewise, Howard’s statement that he had been with Mallory and Lewis the entire evening was improperly admitted at trial. The statement was obtained during a period of unlawful detention. Further, we conclude that the delay in arraignment was employed not only as a device to generally marshal evidence against the defendants, but as a tool to extract statements from defendants. Howard’s statement was obtained only after the lineup had been conducted and he was confronted with the fact that Mallory and Lewis had been positively identified. When a statutorily unlawful detention is employed as a tool to extract a statement, we have traditionally imposed the White exclusionary rule.⁸_

B. Jury View.

In response to the prosecution’s motion for a jury view of the crime scene, defense counsel pointed out that lighting and weather conditions would not be the same, i.e., Cheatham’s beating occurred at 10:30 p.m. on January 12, 1978, during snowy conditions, while the proposed view would occur during daylight hours in May, 1978. Accordingly, defendants opposed the view, claiming that it would be "confusing and prejudicial.” Nevertheless, the trial court permitted the view so that the jury could become acquainted with "line of sight and distances.” However, the trial judge ruled that defendants could not be present at the view because he thought "[w]e have a problem of security” and "we have a problem as to whether they are prejudiced if they go to the scene in handcuffs.” Before the jurors departed for the scene, the trial judge reminded them of the differences in lighting and weather conditions.

The Court of Appeals panel reviewing Mallory’s conviction did not address the issue of the jury view, although it was raised, instead stating "[w]e have reviewed defendant’s other allegations of trial court error and find that no reversible error exists.” However, the panel reviewing the convictions of Lewis and Howard found that the trial court had erred by excluding defendants from the view. Nevertheless, the error was harmless because there was no reasonable possibility of prejudice from defendants’ absence. People v Hughie Lewis, 97 Mich App 359, 365-366; 296 NW2d 22 (1980).

Permitting the jury to view the crime scene is a matter within the discretion of the trial court. GCR 1963, 513; MCL 768.28; MSA 28.1051;⁹ People v Pizzino, 313 Mich 97, 106-107; 20 NW2d 824 (1945); People v Greeson, 230 Mich 124, 142; 203 NW 141 (1925); People v Frontera, 223 Mich 258, 260; 193 NW 782 (1923); People v Winney, 196 Mich 347, 366-367; 163 NW 119 (1917); People v Auerbach, 176 Mich 23, 46; 141 NW 869 (1913). That discretion exists even after the jury has begun its deliberations. Pizzino, supra. Although a trial court does not abuse its discretion by refusing a jury view when conditions at the crime scene have changed between the time of the crime and the time of trial, Frontera, supra, we cannot say that the trial court abused its discretion in permitting a view in this case because lighting and weather conditions were not identical. The jurors were fully apprised by the trial judge and by defense counsel of those differences. Further, on the basis of the evidence which the jurors had already heard and on their own common knowledge, they would have been alerted to any such differences. The view properly helped the jurors to better understand the distances involved and to weigh the evidence admitted at trial, especially the credibility of the eyewitness.

We must now decide whether defendants were entitled to be present at the jury view. A criminal defendant has a specific statutory right to be present during his or her trial:_

"No person indicted for a felony shall be tried unless personally present during the trial . . . .” MCL 768.3; MSA 28.1026.¹⁰

In People v Auerbach, supra, pp 47-48, this Court recognized a defendant’s right to be present at a jury view. However, our decisions have generally turned upon a determination that the defendant had waived this right by failing to appear at the view while free on bail, People v Connor, 295 Mich 1, 6; 294 NW 74 (1940); People v Kasem, 230 Mich 278, 283; 203 NW 135 (1925); Auerbach, supra, p 47.¹¹ No question of waiver is presented here since each defendant requested that he be present during the view.

Auerbach did not specifically articulate the source of a defendant’s right to be present at a jury view. Although jurisdictions are split over whether a jury view is part of a trial, see 21A Am Jur 2d, Criminal Law, § 915, pp 379-380; 75 Am Jur 2d, Trial, §§ 72-86, pp 181-190; 30 ALR 1357; 90 ALR 597; 6 Wigmore, Evidence (Chadbourn rev), § 1803, p 342, and cases cited therein, we are persuaded that it is. A defendant has a right to be present during the voir dire, selection of and subsequent challenges to the jury, presentation of evidence, summation of counsel, instructions to the jury, rendition of the verdict, imposition of sentence, and any other stage of trial where the defendant’s substantial rights might be adversely affected. See, e.g., Snyder v Massachusetts, 291 US 97, 106-108; 54 S Ct 330; 78 L Ed 2d 674 (1934); People v Medcoff, 344 Mich 108, 115-117; 73 NW2d 537 (1955), overruled on other grounds People v Morgan, 400 Mich 527; 255 NW2d 603 (1977), cert den sub nom Cargile v Michigan, 434 US 967; 98 S Ct 511; 54 L Ed 2d 454 (1977); 21A Am Jur 2d, Criminal Law, §§910-924, pp 374-388, and cases cited therein. Thus, the right to be present at trial is independent of and considerably broader in scope than the right of confrontation. 21A Am Jur 2d, supra, § 902, p 368.

A jury view may provide a defendant with an opportunity to render assistance to defense counsel at, during, or after its occurrence. For example, by being present, a defendant might ensure that the jurors do not engage in improper conduct by reporting to defense counsel improprieties which the latter did not observe. Further, any familiarity a defendant has with the area of the jury view might lead to recognition of significant changes in the area which should be pointed out to the jurors by later testimony or argument. Although a defendant can impart knowledge of the area to defense counsel prior to the view, the defendant’s presence will make it more likely that any significant observations of aid to the defense are made. Finally, and most importantly, even a defendant unfamiliar with the area of the view may make observations of that area during the view which can be passed on to defense counsel and which might directly aid the defense.¹²

As previously noted, a defendant may waive his right to be present at a jury view by affirmative consent or by failing to appear at the view when he is at liberty to do so. Furthermore, if the defendant’s conduct during trial is so disorderly or disruptive that his trial cannot be continued while he is present, defendant may lose his right to be present at a jury view entirely. See Illinois v Allen, 397 US 337, 342-343; 90 S Ct 1057; 25 L Ed 2d 353 (1970).¹³

The trial judge expressed two reasons for denying defendants’ presence at the jury view: (1) security problems, and (2) potential prejudice to defendants because the jury would see them in handcuffs. This Court has recognized that:

" 'Freedom from shackling and manacling of a defendant during the trial of a criminal case has long been recognized as an important component of a fair and impartial trial. 14 Am Jur, Criminal Law, § 132. Ordinarily such procedure should be permitted only to prevent the escape of the prisoner or to prevent him from injuring bystanders and officers of the court or to maintain a quiet and peaceable trial.’ ” People v Duplissey, 380 Mich 100, 103-104; 155 NW2d 850 (1968), quoting Odell v Hudspeth, 189 F2d 300, 302 (CA 10, 1951), cert den 342 US 873; 72 S Ct 116; 96 L Ed 656 (1951). Also, People v Anderson, 389 Midi 155, 190-191; 205 NW2d 461 (1973), affirming 29 Mich App 578, 582-583; 185 NW2d 624 (1971).

Consistent with those principles, a trial court may, in the exercise of its discretion, determine that shackling of the defendant when in the presence of the jury at a view is necessary on the basis of previous conduct of the defendant or other manifest circumstances. Nevertheless, in most instances, the presence of armed guards should be sufficient. See, generally, Allen, supra, pp 343-344; People v Kerridge, 20 Mich App 184, 186-188; 173 NW2d 789 (1969); People v Havey, 11 Mich App 69, 76; 160 NW2d 629 (1968), lv den 381 Mich 756 (1968); People v William L Thomas, 1 Mich App 118, 126; 134 NW2d 352 (1965); 21A Am Jur 2d, Criminal Law, § 846, pp 295-302.

The trial judge did not articulate why he believed that defendants’ presence at the jury view would pose such a security risk that defendants’ right to be present should be denied. Since retrial is required, we need not decide whether this decision constituted reversible error. If a jury view is held upon retrial, the trial court should take all reasonable steps necessary to protect defendants’ right to be present, as well as the safety of the jurors and community at large.

C. Other Issues.

Several other issues also merit our attention. First, graphic testimonial evidence that the victim had terminal brain cancer, resulting in the loss of use of his right arm, was admitted at trial over the objections of defendants. We fail to see any logical or legal relevance that this evidence had to defendants’ first-degree felony murder prosecution. As aptly stated by the Court of Appeals when reviewing the convictions of Howard and Lewis:

"In the case before us, the victim’s physical condition was completely irrelevant to any issue in the case. There was no contention of self-defense or that the decedent was the aggressor. There was eyewitness testimony concerning the brutality of the beating that resulted in Cheatham’s death. There was no need to bolster the mother’s testimony that decedent’s money was in his left pocket by bringing up his illness. We find that the testimony was erroneously admitted, as its only purpose was to appeal to the sympathy of the jury.” Hughie Lewis, supra, p 367.

The panel reviewing Mallory’s conviction did not address this issue, although it was raised. Although we may have found this error to have been harmless beyond a reasonable doubt in a trial free of other errors, especially as to Mallory and Lewis who were positively identified by the eyewitness, we do not decide that question. Rather, we merely point out that this evidence should not be admitted at any retrial involving any of the defendants.

Finally, we believe that if any errors occurred in the trial court’s jury selection methods or its jury instructions regarding felony murder, they will not occur at any retrial involving any of the defendants. See People v Miller, 411 Mich 321; 307 NW2d 335 (1981), and People v Aaron, 409 Mich 672; 299 NW2d 304 (1980), respectively.

III. Conclusion

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

Williams, C.J., and Kavanagh and Levin, JJ., concurred with Cavanagh, J.

1 People v Mallory, unpublished opinion per curiam of the Court of Appeals, decided November 26, 1979 (Docket No. 78-2377); People v Hughie Lewis and People v Howard, 97 Mich App 359; 296 NW2d 22 (1980).

2 People v Hughie Lewis and People v Charles Howard, 417 Mich 885; 331 NW2d 224 (1983); People v Mallory, 417 Mich 886; 331 NW2d 224 (1983).

3 Prompt arraignment prevents police officers from conducting secret interrogations. Mallory v United States, 354 US 449; 77 S Ct 1356; 1 L Ed 2d 1479 (1957); Upshaw v United States, 335 US 410; 69 S Ct 170; 93 L Ed 100 (1948); People v Hamilton, 359 Mich 410, 415-416; 102 NW2d 738 (1960).

4 The dissent maintains that a judicial determination of probable cause was made after defendants’ arrests when the complaint was filed and arrest warrants were issued. Regardless of whether this determination satisfied constitutional requirements, it clearly did not satisfy MCL 764.13; MSA 28.871(1). Furthermore, this determination occurred three days after the arrests. The arraignment statutes require not only a judicial determination of probable cause, but a prompt one.

5 The dissent states that since the magistrate at the reverse writ proceeding had the authority to set bond, defendants were afforded an opportunity "by their appearance” to have the issue of bond considered. We disagree. As described in Casey, supra, 411 Mich 180, fn 1, the reverse writ procedure was generally informal and without any documentation. The only purpose of the proceeding was to keep the arrestee in custody without issuing an arrest warrant. It therefore would have been extremely unlikely that the magistrate who allowed the police to detain defendants without the benefit of a warrant would have also allowed defendants to be freed on bail.

6 For purposes of our analysis, we assume that the police had probable cause to arrest defendants and that those arrests were efiectuated in a lawful manner. However, we do not decide those questions.

7 In the event of a prompt arraignment, bail might have been set and Mallory would not have been in custody. Remember that the victim did not die until the afternoon of January 13,1978. Defendants were arrested for felonious assault on January 12, 1978. Thus, a prompt arraignment would have seen defendants charged with a bailable offense. See Const 1963, art 1, § 15. Accordingly, the blood on the shoes might not have been discovered as it was.

Neither Hancock v Nelson, 363 F2d 249 (CA 1, 1966), cert den 386 US 984; 87 S Ct 1292; 18 L Ed 2d 234 (1967), nor United States v Edwards, 415 US 800; 94 S Ct 1234; 39 L Ed 2d 771 (1974), requires a different result. In Nelson, defendants filed a habeas corpus petition challenging the admissibility of their bloodstained clothes, which had been surrendered during a detention that was illegal under state statutory law. The first circuit held, as a matter of federal constitutional law, that the clothes were properly seized during a lawful search incident to arrest. Nelson, supra, pp 252, 255. However, the court noted that as a matter of federal procedural law, a violation of the federal prompt arraignment statutes would have resulted in suppression under Mallory, supra, and McNabb v United States, 318 US 332; 63 S Ct 608; 87 L Ed 819 (1943). The Nelson Court also noted that a state could similarly exclude evidence obtained during statutorily unlawful detentions either by judicial decision or statute, although no state had yet done so. Nelson, supra, pp 253-254. However, Nelson was decided eight years before this Court adopted the White exclusionary rule.

In Edwards, the United States Supreme Court held that as a matter of federal constitutional law, once an accused has been lawfully arrested and is in custody, his clothes may be lawfully searched and seized without a warrant, even if the search and seizure occurs well after the arrest and administrative processing, and even if no probable cause to search exists. Edwards, like Nelson, based this conclusion on the "search incident to arrest” exception to the warrant requirement. Edwards, supra, pp 802-805. However, no statutorily unlawful prearraignment delay had occurred in Edwards. If there had been such a delay, the federal McNabb-Mallory rule could have required suppression.

8 An identical result is reached when the starting point is a constitutionally unlawful detention. A statement which is solely the product of an illegal arrest is constitutionally inadmissible. Wong Sun, supra, p 491. Although Howard’s statement may have been voluntary under US Const, Am V, and Const 1963, art 1, § 17, it was still illegally obtained for purposes of US Const, Am IV, and Const 1963, art 1, § 11. See Dunaway v New York, 442 US 200, 217; 99 S Ct 2248; 60 L Ed 2d 824 (1979). The inquiry with respect to the latter two constitutional provisions is whether there was a causal connection between the unlawful detention and the statement. Brown v Illinois, 422 US 590, 602; 95 S a 2254; 45 L Ed 2d 416 (1975). To answer that inquiry, we look at: (1) the time lapse between the arrest and the statement, (2) the flagrancy of official misconduct, (3) any intervening circumstances, and (4) any antecedent circumstances, i.e., events occurring before the arrest. See Dunaway, supra; Brown, supra, p 603; People v Emanuel, 98 Mich App 163, 177; 295 NW2d 875 (1980), lv den 414 Mich 871 (1982), cert den sub nom Emanuel v Michigan, 459 US 1220; 103 S a 1226; 75 L Ed 2d 461 (1983).

In this case, the time lapse between Howard’s arrest and his statement regarding identification was in excess of 40 hours and there were no intervening circumstances during that time period tending to ameliorate the delay. Rather, the only intervening circumstances of significance were the several lineups conducted, which were part of the general police plan to marshal evidence against defendants and at which Mallory and Lewis were positively identified. Howard’s statement was a direct result of those identifications. Those identifications would not have taken place but for the unlawful detentions of all defendants. A lineup "is not the kind of intervening circumstance which tends to dissipate the taint” of an unlawful detention. People v Casey, 102 Mich App 595, 604, fn 6; 302 NW2d 248 (1980), aff’d 411 Mich 179; 305 NW2d 247 (1981). Finally, we endorse the comments of the Court of Appeals made in another case involving reverse writs:

"We also conclude that the official misconduct here was 'flagrant’ in the sense that it was extremely conspicuous. If one carefully examines the proceedings in this matter, the illegality of the arrest is obvious. By so finding, however, we do not wish to imply that we believe the officers in question intentionally acted improperly.” Casey, supra, p 604.

Accordingly, Howard’s statement was inadmissible at trial because it was the fruit of the poisonous tree.

"When there is a close causal connection between the illegal seizure and the confession, not only is exclusion of the evidence more likely to deter similar police misconduct in the future, but use of the evidence is more likely to compromise the integrity of the courts.” Dunaway, supra, p 218.

9 This state has had a similar statute for almost 140 years. See RS 1846, ch 165, § 10; 1857 CL 6077; 1871 CL 7956; How Stat 9569; 1897 CL 11952; 1915 CL 15825; 1929 CL 17321; 1948 CL 768.28.

10 Like the jury view statute, this statute has a long history. See RS 1846, ch 165, § 9; 1857 CL 6076; 1871 CL 7955; How Stat 9568; 1897 CL 11951; 1915 CL 15824; 1929 CL 17296; 1948 CL 768.3.

Similarly, an accused’s right to be present at trial is impliedly guaranteed by the federal and state Confrontation Clauses, US Const, Am VI; Const 1963, art 1, § 20; Illinois v Allen, 397 US 337, 338; 90 S Ct 1057; 25 L Ed 2d 353 (1970), the Due Process Clauses, US Const, Am XIV; Const 1963, art 1, § 17; Snyder v Massachusetts, 291 US 97, 105-106; 54 S Ct 330; 78 L Ed 2d 674 (1934), and the right to an impartial jury, Const 1963, art 1, § 20; People v Medcoff, 344 Mich 108, 113; 73 NW2d 537 (1955), overruled on other grounds People v Morgan, 400 Mich 527; 255 NW2d 603 (1977), cert den sub nom Cargile v Michigan, 434 US 967; 98 S Ct 511; 54 L Ed 2d 454 (1977). The right of presence is also grounded in common law. Snyder, supra, p 107.

In Snyder, the Supreme Court held that the presence of a defendant at trial is required by the Due Process Clause to the extent that a fair and just hearing would be thwarted by his absence. Id., pp 107-108, 115. However, neither the Due Process nor the Confrontation Clauses required the defendant’s presence at a jury view since a view is neither a part of trial nor evidence for purposes of these clauses. Id., pp 107-108, 113-115, 118-122. Nevertheless, the Court specifically noted that each state is free to regulate the procedure of its courts, in accordance with its own conception of policy and fairness, and may provide more protection to a criminal defendant. Id., p 105. Most states which had decided the question at the time Snyder was decided had done so on the basis of their state constitutions and statutes. Id., pp 118-119. We too base our decision today upon our interpretation of MCL 768.3; MSA 28.1026, and related case law, pursuant to our supervisory authority over the administration of criminal justice in our courts. See United States v Walls, 443 F2d 1220, 1223, fn 3 (CA 6, 1971).

11 In People v Raider, 256 Mich 131, 137-138; 239 NW 387 (1931), there was a factual dispute as to whether defendant was present at the view. Although the issue was raised in People v Hull, 86 Mich 449, 465-466; 49 NW 288 (1891), this Court reversed defendants’ convictions on the grounds of jury misconduct during the view.

12 Defendants have not claimed, nor do we decide, that the refusal to allow defendants to be present at the jury view denied them the right to effective assistance of counsel.

13 However, courts must indulge every reasonable presumption against the loss of the right to be present during trial. Furthermore, if the right is lost, it can be reclaimed as soon as defendant is willing to conduct himself in an appropriate manner. Allen, supra, p 343.

If the defendant waives or forfeits his right to be present at a jury view, it is clear that no additional evidence can be introduced at the view. Raider, fn 11 supra, 256 Mich 138; People v Winney, 196 Mich 347, 366; 163 NW 119 (1917); Auerbach, supra, 176 Mich 47; Hull, supra, 86 Mich 466. In light of our holding that a jury view is part of trial, we need not decide whether the view itself is evidence. Although our prior decisions have uniformly held that the purpose of a jury view is only to enable the jury to better understand, apply, and weigh the evidence admitted at trial, People v Woods, 227 Mich 403, 405-406; 198 NW 891 (1924); People v Harrigan, 218 Mich 235, 240-241; 187 NW 306 (1922); Winney, supra; Auerbach, supra, other jurisdictions and authorities have concluded that a view is evidence. See 21A Am Jur 2d, Criminal Law, § 915, pp 379-380; 75 Am Jur 2d, Trial, § 86, pp 189-190; 3 Jones, Evidence (6th ed), § 15:24, pp 60-63; McCormick, Evidence (2d ed), § 216, pp 537-539; 6 Wigmore, Evidence (Chadbourn rev), § 1803, pp 340-346, and cases cited therein.