People v. WILLIAMS 2 , 23 Mich. App. 711 ( 1970 )

23 Mich. App. 711 (1970) 179 N.W.2d 250

PEOPLE
v.
WILLIAMS #2 PEOPLE
v.
WRIGHT PEOPLE
v.
GILLARD

Docket Nos. 5,824, 5,851, 6,123, 6,124, 6,598, 6,599.

Michigan Court of Appeals.

Decided May 25, 1970. Application for leave to Decided May 25, 1970. Leave to appeal denied October 22, 1970. Leave to appeal denied August 25, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Angelo A. Pentolino, Assistant Prosecuting Attorney, for the people.

Arthur J. Tarnow (Defenders' Office — Legal Aid and Defenders Association of Detroit), for defendants Williams and Wright on appeal.

Sheldon M. Meizlish for defendant Gillard on appeal.

Before: QUINN, P.J., and J.H. GILLIS and O'HARA,^[*] JJ.

Leave to appeal denied as to Williams and Wright October 22, 1970. 384 Mich. 770.

Leave to appeal denied as to Gillard August 25, 1970. 383 Mich. 821.

QUINN, P.J.

Defendants were charged with breaking and entering a business establishment with intent to commit the crime of larceny, MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305) and with possession of burglary tools, MCLA § 750.116 (Stat Ann 1962 Rev § 28.311). March 25, 1968, the jury convicted them of both offenses, they were sentenced and they appeal.

Defendant Williams attacks his conviction on the basis that his confession was improperly admitted in evidence.

Defendant Wright contends he was denied a fair trial because the statements of Williams and Gillard were admitted in evidence and these statements implicated Wright.

Defendant Gillard argues that his confession resulted from an illegal arrest, and it was improperly admitted in evidence. He further attacks the admission of his confession on the basis that it was obtained during an unreasonable delay between his arrest and arraignment before the magistrate. Defendant Gillard also claims he did not receive adequate advice as to his constitutional rights prior to making the confession.

About 11 p.m. April 30, 1967, Williams and Wright were apprehended in a business establishment in Flat Rock. Entry of the establishment had been gained by force. Near defendants, the police found a bag containing tools suitable for burglary purposes. Williams and Wright were arrested, taken to the Flat Rock police station and booked. May 1, 1967, a warrant was issued charging Williams, Wright and John Doe with possession of burglary tools. At arraignment before the magistrate the same day, Williams stood mute. Thereafter on May 1, 1967, Williams gave a statement to the police which implicated Gillard.

At 5:30 p.m. on May 5, 1967, Gillard was arrested on the John Doe warrant, and between 10:35 and 11:33 a.m. on May 6, 1967, Gillard gave a statement to the police.

May 29, 1967, a warrant issued charging the defendants Williams, Wright and Gillard with breaking and entering a business establishment with intent to commit the crime of larceny.

Claiming that the general "John Doe" warrant violated US Const, Ams 4 and 14, and Const 1963, art 1, § 11, defendant Gillard contends on appeal that his confession was the product of an illegal arrest and hence was inadmissible. We find it unnecessary to pass on this question. At the time of Gillard's arrest, the police knew a felony had been committed and they had reasonable cause to believe that Gillard committed it. Under CL 1948, § 764.15 (c) (Stat Ann 1954 Rev § 28.874[c]), Gillard's arrest was lawful without a warrant.

Prior to trial, defendants Williams and Gillard moved to suppress their confessions. After an extensive Walker hearing, the circuit judge found both confessions were voluntary and admissible. After being advised of the right to remain silent, that no statement or answer to a question was required of them, that any statement or answer given would be used in evidence in a criminal prosecution against them, that they had the right to consult an attorney or other person of their choice and to have an attorney or other person present at the time or at any time thereafter, that they could not be questioned without their consent in the absence of an attorney or other person, that if they could not afford attorneys, the court would appoint attorneys for them at county expense prior to questioning, and that they could refuse to answer at any time, the defendants confessed in writing. They stated their willingness to make statements and answer questions. They further stated that they did not want attorneys and that the statements were given freely and voluntarily without threats or promises being made and that the statements were true to the best of their knowledge. Such a record precludes a finding by this Court that the findings of the trial court as to voluntariness and admissibility were clearly erroneous as required by GCR 1963, 517.1 and People v. Walker (1967), 6 Mich. App. 600.

Defendant Wright was caught in the building burglarized. The fact that the confessions of Williams and Gillard may have implicated him does not require reversal in this instance. The admission of these confessions was harmless error. CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096), GCR 1963, 529.1, Harrington v. California (1969), 395 U.S. 250 (89 S. Ct. 1726, 23 L. Ed. 2d 284).

Affirmed.

All concurred.

NOTES

[*] Former Supreme Court Justice, sitting on Court of Appeals by assignment pursuant to Const 1963, art 6, § 23, as amended in 1968.