People v. Harris

246 N.W.2d 406, 71 Mich. App. 82, 1976 Mich. App. LEXIS 923

Opinions

J. H. Gillis, J.

Defendants Joseph Harris and Anita Harris, husband and wife, were tried without a jury on a charge of first-degree murder, MCLA 750.316; MSA 28.548. Both were convicted of second-degree murder, MCLA 750.317; MSA 28.549. The court sentenced each to 7-1/2 to 20 years imprisonment. Defendants appeal.

On January 4, 1974, the partially clothed body of a young woman was found in the snow outside a Pontiac grocery store. Clothesline was around her neck, hands and feet. Burns, bruises and cuts on various parts of the body indicated vicious torture. An autopsy revealed strangulation by ligature and substantial internal hemorrhaging.

A "citizens’ group” composed of the victim’s brother and some friends conducted a private investigation. They obtained statements by physical coercion and threats against the defendants, Joseph Harris and Anita Harris. Additionally, two other suspects, Willie Scott and Rosemary Tipton, were coerced by the citizens group into making statements. Mrs. Harris, who carried her baby with her, was not struck but was forced to confess at gunpoint along with the others.

This citizens’ group then entrusted the suspects to the custody of the Pontiac police. After the citizens’ group departed from the police station, the suspects were read their Miranda rights and all gave statements concerning the incident to the police. On the basis of the statements given to the police, the district court issued arrest warrants for Joseph and Anita Harris and Rosemary Tipton. A search warrant for the premises where the murder was alleged to have taken place was also issued at this time.

From May 1, 1974 to May 15, 1974 the circuit judge, who later served as the trial judge, conducted a Walker hearing, which resulted in the suppression of all statements made to the citizens’ group. The circuit judge declined to suppress the statements made to the police after determining that the Miranda warnings had been given to each of the suspects.

At trial defendant Joseph Harris testified, and the prosecutor attempted to use the statements made by Joseph Harris to the citizens’ group for impeachment purposes. The prosecution, in attempting to introduce portions of the coerced confession, relied expressly on the exception of Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971). The court allowed this coerced confession in for the limited purpose of testing the credibility of the witness. This was clearly erroneous in that a coerced confession can never be used for impeachment purposes. Inasmuch as Joseph and Anita Harris were jointly tried in a nonjury trial and are here on a consolidated appeal, it is important to note at this juncture that the coerced confession was not used against Anita Harris. It is also important to note at this juncture that defense lawyers were well aware of the fact that the same judge who conducted the Walker hearing and ruled the confessions inadmissible, because they were coerced, conducted this nonjury trial. Counsel had every opportunity to request that the trial be conducted by a different judge, and in fact the record clearly denotes that the prosecutor pointed out this dilemma in the presence of defense counsel prior to trial.

We can only conclude that the defendants and their counsel chose to have the trial court conduct the trial even though the trial court had complete knowledge of all aspects of the coerced confession.

In light of the aforementioned facts, we do not believe that there was reversible error committed here. The error was harmless inasmuch as the trial court was not prejudiced by the admission of this attempt to improperly impeach defendant Joseph Harris. It, of course, did not affect Anita Harris’ trial since no attempt was made to impeach her testimony.

The trial judge is an able experienced jurist who stated on the record in a rather lengthy dissertation that he would not consider the statement made to the citizens’ group as substantive proof of the defendants’ guilt. A reading of the 478-page transcript clearly shows that there was sufficient evidence to convict each of the defendants of second-degree murder. Another fact finder might well have found each of the defendants guilty of first-degree murder. There is ample evidence in the record to support a finding that the killing was premeditated and such premeditation extended over a matter of hours.

The trial court, after hearing all of the evidence, reduced the original charge of first-degree murder to second-degree murder, which is some evidence of the fact that he was not prejudiced by the utilization of this coerced confession in the trial of Joseph Harris.

There were other issues presented on appeal, which we have considered. We find no reversible error in each of these other issues.

For the reasons hereinbefore stated we affirm each of the convictions.

D. F. Walsh, P. J., concurred.