People v. Leffew , 58 Mich. App. 533 ( 1975 )

58 Mich. App. 533 (1975) 228 N.W.2d 449

PEOPLE
v.
LEFFEW

Docket No. 19279.

Michigan Court of Appeals.

Decided February 12, 1975.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Donald A. Burge, Prosecuting Attorney, and Stephen M. Wheeler, Chief of Appellate Division, for the people.

Robert L. Adams, for defendant.

Before: V.J. BRENNAN, P.J., and J.H. GILLIS and D.E. HOLBROOK, JR., JJ.

D.E. HOLBROOK, JR., J.

Defendant was convicted by a jury of larceny of over $100, MCLA 750.356; MSA 28.588. He appeals his conviction as of right.

Two assignments of error are presented on appeal: (1) that the trial court erroneously denied defendant's written pre-trial motion for commitment to the Center for Forensic Psychiatry; (2) that the trial court erred in admitting as evidence, two statements made by defendant in response to custodial police interrogation, absent Miranda warnings.^[1]

On July 30, 1973, some 2-1/2 months prior to trial, defendant's attorney filed a written motion to commit defendant to the custody of the Center for Forensic Psychiatry. It was claimed that defendant was incapable of comprehending his own condition in reference to the proceedings against him and was also incapable of assisting in his defense in a rational or reasonable manner. In short, said motion asserted defendant to be incompetent to stand trial. The motion was subsequently argued before the court and denied on the basis there was no showing that defendant needed to go to the Forensic Center.

However, GCR 1963, 786.3 declares that, when a defendant moves to be committed to the Department of Mental Health, "the court shall order the defendant committed to a diagnostic facility certified by the Department of Mental Health for the performance of forensic psychiatric evaluation." (Emphasis supplied.) People v Butler, 43 Mich. App. 270, 282; 204 NW2d 325, 331 (1972), rev'd on other grounds in 387 Mich. 756; 194 NW2d 827 (1972). The procedure detailed in the court rule is mandatory. People v Howard, 37 Mich. App. 662; 195 NW2d 289 (1972). See, also, People v Jackson, 40 Mich. App. 237; 198 NW2d 714 (1972).

In the present case defendant filed a proper and timely motion for forensic psychiatric evaluation. Under these circumstances it was reversible error for the trial court to deny defendant's motion. While not unaware of the majority opinion in People v Sherman Williams, 38 Mich. App. 370; 196 NW2d 327 (1972), we feel constrained to hold in accord with Howard, supra, which we believe to be the majority view of this court.

While our determination of the foregoing issue is dispositive of this appeal, we now address our attention to the second assignment of error set forth above. We do this because on retrial the same issue might well confront the court.

On August 9, 1973, a Walker^[2] hearing was held to determine the admissibility of defendant's two statements made to police officers following his arrest. A review of the record of those proceedings shows that the defendant and one Henry Cobbins were arrested and taken into custody by patrolman William Sparrow for unarmed robbery. Approximately one minute following their initial detention, several other officers, including Officer Ruthven, arrived at the scene to assist. At the time of arrest and when the assisting officers arrived, defendant had around his neck what was described as a leather thong with some rings on it. Officer Ruthven took hold of the same and looked at it. At this point defendant stated, "Those are not her rings". Officer Ruthven responded by asking, "Whose rings?". The defendant replied, "Whoever you're trying to accuse us of stealing from". No further questions were asked. Up to this point no mention had been made by police as to whom defendant and Cobbins were suspected of having robbed. Miranda warnings admittedly had not been given.

The court ruled both statements admissible. The first on the ground that it was a volunteered statement and not in response to interrogation. The second because it was in answer to a question prompted by defendant's own volunteered statement. Substantially the same statements were subsequently testified to at defendant's trial.

We hold both statements to have been properly admitted. The first was unquestionably voluntary. Purely voluntary statements do not come within the Miranda rule. People v Moore, 51 Mich. App. 48; 214 NW2d 548 (1974); People v Griner, 30 Mich. App. 612; 186 NW2d 800 (1971); People v McKee, 28 Mich. App. 610; 184 NW2d 750 (1970).

With respect to defendant's second statement, the issue for our determination is whether the question asked by Officer Ruthven constituted "custodial interrogation" within the meaning of Miranda v Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L Ed 2d 694 (1966). In defining "custodial interrogation" the Court in Miranda, supra, 444, stated:

"By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."

It is not disputed that defendant was in custody when Officer Ruthven asked the question and defendant responded. Neither is there any question that defendant had not been given any Miranda warnings. In resolving the issue as to whether Officer Ruthven's question constituted "custodial interrogation" we must focus our attention on whether or not said question was initiated by Officer Ruthven or by some other cause. We believe the officer's question was initiated solely by defendant's previous volunteered statement. It was a natural and spontaneous reaction to defendant's own volunteered statement and not calculated to elicit evidence against the defendant. We hold therefore that a single question asked by a law enforcement officer with no further questions being asked does not constitute "custodial interrogation" if such question was initiated or prompted by the defendant's own previous volunteered statement and was not calculated to elicit evidence against the defendant. Both statements were properly ruled admissible.

For the reasons set forth in our resolution of the first issue above, this cause is reversed and remanded for a new trial.

NOTES

[1] Miranda v Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966).

[2] People v Walker (On Rehearing), 374 Mich. 331; 132 NW2d 87 (1965).