People v. D'AVANZO

125 Mich. App. 129 (1983) 336 N.W.2d 238

PEOPLE
v.
D'AVANZO

Docket No. 62862.

Michigan Court of Appeals.

Decided April 20, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, James J. Gregart, Prosecuting Attorney, and Richard A. Santoni, Assistant Prosecuting Attorney, Appellate Division, for the people.

Frederick A. Milton, for defendant.

Before: MacKENZIE, P.J., and R.M. MAHER and C.W. SIMON, JR.,^[*] JJ.

PER CURIAM.

On October 15, 1980, Patricia Lang was murdered in Kalamazoo. Police investigating the crime quickly sought out defendant, an inmate at the Ionia State Reformatory and former boyfriend of Lang. Over the next nine weeks, defendant had many conversations with law enforcement personnel and, on five occasions, made statements tying him to the killing. Learning that the prosecution intended to introduce these statements into evidence at defendant's trial for Lang's murder, the defendant moved for their suppression. The trial court conducted a Walker^[1] hearing, and after listening to the testimony of 17 witnesses, it ordered four of the five statements suppressed. The people now appeal by leave granted from that order.

The people argue four issues on appeal. Before we turn to their claims, however, we address an issue raised by neither party. The question should have been presented by defendant on a cross-appeal. Although "[o]rdinarily no point will be considered which is not set forth in or necessarily suggested by the Statement of Questions involved", GCR 1963, 813.1, the rule is not always followed, see Schlientz v Schlientz, 329 Mich. 53; 45 NW2d 183 (1950); People v Martin, 176 Mich. 381; 142 N.W. 592 (1913). We decide this issue, not raised by defendant, because our failure to do so would result in a manifest injustice.

The question is whether the single statement that survived the suppression motion should have been excluded from evidence. The trial court's ruling denying defendant's motion to suppress this statement was based on a finding of fact, that is, we conclude clearly erroneous. Therefore, we reverse.

The statement in question was made to Ora Roberts, an inspector at the Ionia State Reformatory. The events leading up to and the circumstances surrounding defendant's conversation with Roberts may be stated briefly. Shortly after defendant was identified as a former boyfriend of Lang, Robert Slater, a police officer investigating the murder, telephoned defendant to elicit information useful to his inquiry. During their conversation, defendant told Slater that he had some letters from Lang and agreed to relinquish half of them to Slater. Subsequently, Slater travelled to Ionia. There he met with Ora Roberts and James Purkey, a detective sergeant with the Michigan State Police who maintained an office at Ionia. Slater and Purkey told Roberts that defendant was a suspect in the murder and asked Roberts to "shake down" defendant's living quarters to obtain Lang's letters. Apparently, defendant had refused to release the letters when he learned that Slater had questioned his mother and other relatives about Lang's death. Later that day, defendant's quarters were searched and the letters secured.

That same day defendant came to see Roberts. He complained that Slater and Purkey were harrassing him and implored Roberts to get them "off my back". At one point in their conversation, Roberts asked defendant whether he had anything to do with Lang's murder. Defendant replied, "The only way I could be involved would be as a conspirator" or words to that effect.

It is undisputed that Roberts, at no point during their talk, advised defendant of his Miranda^[2] rights. Where Miranda warnings must be given, inculpatory statements made without the benefit of such warnings must be suppressed. People v Reed, 393 Mich. 342; 224 NW2d 867 (1975). To determine when Miranda warnings must be given "the ``deciding factor, in each case, is determined by examining the specificity of the investigation, i.e., whether the investigation has focused on one suspect.'" People v Reed, supra, p 357; People v Brannan, 406 Mich. 104, 118; 276 NW2d 14 (1979).

The trial court apparently found that defendant's conversation with Roberts occurred before Slater and Purkey informed Roberts that defendant was a suspect. Accordingly, the trial court concluded that Roberts need not have advised defendant of his Miranda rights. The record clearly establishes, however, the reverse sequence of events. Defendant originally came to see Roberts because Slater and Purkey were pressuring him, especially about Lang's letters. When defendant said he would not turn over the letters, Roberts told him that at that very moment his domicile was being shaken down and the letters removed. This remark fixes in time Roberts' conversation with defendant in relation to Roberts' talk with Purkey and Slater because the shakedown occurred after Slater and Purkey had told Roberts that defendant was a suspect and, in fact, was done at their request. Thus, when Roberts asked defendant about his involvement in the murder, the investigation had focused on defendant and Roberts, aware of this fact, should have advised defendant of his Miranda rights. We conclude that defendant's inculpatory response to Roberts' question should have been suppressed. The trial court's ruling to the contrary is reversed.

We turn now to the people's four claims of error. The people argue that the trial court erred in suppressing two statements defendant made to Purkey on or during the few days following October 19, 1980. Purkey testified at the suppression hearing that he did not consider defendant a suspect when defendant incriminated himself. Defense counsel, however, impeached Purkey with his assertion, made during his testimony at the preliminary examination, that he considered defendant a suspect on October 19, 1980. Choosing to believe Purkey's earlier version, the trial court concluded that the investigation had focused on defendant when he incriminated himself in response to Purkey's questions. This finding was not clearly erroneous. Nor will we disturb the trial court's findings that defendant made incriminating remarks without the benefit of Miranda warnings. These findings were not clearly erroneous. Consequently, we affirm the trial court's order suppressing these statements.

The people next argue that the trial court erred in suppressing the confession given over the telephone to Lanny Wilde, the deputy chief of the Western Michigan University police force, on December 24, 1980, at 1 p.m. and a second confession given to Purkey one hour later. There can be no doubt that by this time the investigation had centered on defendant. Wilde testified that defendant was a suspect when defendant called him on December 24. Wilde, however, did not advise defendant of his Miranda rights. Moreover, we reject the people's argument that defendant's confession was not in response to an "interrogation". In Rhode Island v Innis, 446 U.S. 291; 100 S. Ct. 1682; 64 L. Ed. 2d 297 (1980), the Supreme Court held that "interrogation" includes words or acts on the part of the police which they should know are reasonably likely to elicit an incriminating response from the suspect. Wilde knew that defendant was going to make a statement and explicitly encouraged him to do so. Thus, defendant's response was inadmissible.

When defendant confessed to Purkey, one hour after he talked to Wilde, defendant had been advised of his Miranda rights. Defendant argues that the second confession is inadmissible on the basis of the fruit of the poisonous tree doctrine even though the second confession was made after Miranda was complied with. Whether the Miranda warnings purged the taint of the first illegally obtained confession depends on the causal connection between the two confessions. People v Grevious, 119 Mich. App. 403, 409; 327 NW2d 72 (1982). The test to be applied is:

"``whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' Wong Sun v United States, 371 U.S. 471, 488; 83 S. Ct. 407, 417; 9 L. Ed. 2d 441, 455 (1963), quoting from Maguire, Evidence of Guilt (1959), 221." People v Merlo, 23 Mich. App. 694, 699; 179 NW2d 222 (1970).

After Wilde got off the telephone with defendant he called Purkey and instructed him to take a written confession from defendant. Thus, the second confession was a product of the first. The trial court did not err in suppressing it.

Finally, the people argue that the trial court erred in finding that, independent of any Miranda violations, the confessions given to Wilde and Purkey were involuntary. An appellate court may not disturb a trial court's finding at a Walker hearing that a defendant's confession was involuntary unless it is clearly erroneous. People v Dean, 110 Mich App 751; 313 NW2d 100 (1981); People v Emanuel, 98 Mich. App. 163; 295 NW2d 875 (1980). There was considerable testimony from reputable witnesses, such as defendant's minister, friend, and prison counselor, that defendant felt himself extremely pressured by the authorities. There was also considerable testimony that defendant was continually interrogated, harrassed, and subjected to shakedowns in late 1980. In light of this evidence we cannot conclude that the trial court's findings that defendant's confessions were involuntary were clearly erroneous.

Reversed in part, affirmed in part, and remanded for further proceedings not inconsistent with this opinion.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

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

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