People v. Mosley

249 N.W.2d 393, 72 Mich. App. 289, 1976 Mich. App. LEXIS 1095

• Court: Michigan Court of Appeals
• Decided: November 22, 1976
• Docket: Docket 14318
• Status: Published

Opinions

On Remand From U.S. Supreme Court

Danhof, C. J.

On April 5, 1972, the defendant was found guilty by a jury on one count of felony murder in violation of MCLA 750.316; MSA 28.548.

The defendant having taken an appeal by right, this Court reversed his conviction and remanded the case for a new trial after having decided only a single issue. It was the conclusion of this Court that the defendant’s confession had been obtained in violation of Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), and was therefore improperly admitted. People v Mosley, 51 Mich App 105; 214 NW2d 564 (1974). Leave to appeal was denied by our Supreme Court, 392 Mich 764 (1974). Upon grant of the people’s application for writ of certiorari, the United States Supreme Court vacated our holding and remanded the case for our further consideration. Michigan v Mosley, 423 US 96; 96 S Ct 321; 46 L Ed 2d 313 (1975).

In his brief and supplemental brief, the defendant raises four meritorious issues which we now consider.

He first argues that although Michigan v Mosley is binding upon the courts of this state as the proper interpretation of the US Const, Am V, we are free to interpret the identical language found in Const 1963, art 1, § 17 as we feel is proper, and in doing so establish what he terms a "higher” standard. Such an action is not without precedent. See, for example, the holdings of the Michigan Supreme Court regarding illegal searches and seizures in People v Beavers, 393 Mich 554; 227 NW2d 511 (1975), double jeopardy protection in People v White, 390 Mich 245; 212 NW2d 222 (1973), and right to counsel in People v Anderson, 389 Mich 155; 205 NW2d 461 (1973).

We are unaware of any existing authority rooted in Michigan law, rather than upon Miranda, which provides that in such a factual setting a confession must be excluded, whether or not found voluntary.

It is our opinion that if such a rule is to be formulated, it is within the exclusive province of the Supreme Court to do so. In the absence of existing Michigan law to support the defendant’s position, we hold that his confession is not to be excluded on the single ground of the police conduct complained of here. This is not to say that it is necessarily admissible. It is still subject to exclusion if made involuntarily or otherwise illegally obtained.

Defendant next contends that his confession should be excluded as a product of an illegal arrest under one of the rules of Wong Sun v United States, 371 US 471, 491; 83 S Ct 407; 9 L Ed 2d 441 (1963). Unlike the Miranda rule, which is designed to protect a defendant’s Fifth Amendment right against self-incrimination, the rule of Wong Sun is designed to discourage disparagement of his or her Fourth Amendment right to remain free of illegal seizures of the person. Consequently, mere compliance with the rule of Miranda and showing of voluntariness of the confession are not sufficient to render the confession admissible if it appears that the confession is a product of an illegal arrest. Brown v Illinois, 422 US 590; 95 S Ct 2254; 45 L Ed 2d 416 (1975). In order for us to sustain the defendant’s contention, two requisites must be established: that the defendant was illegally arrested and that the statement made was not "sufficiently an act of free will to purge the primary taint”, Brown, supra, 422 US at 597.

We have examined the record of the circumstances surrounding the defendant’s arrest and conclude that the arrest of the defendant was made upon probable cause to believe that he was the perpetrator of one or more robberies and was, therefore, legal. Consequently, the confession that followed was not inadmissible on this ground.

The defendant’s next assignment of error relates to the method by which the trial court submitted his confession to the jury. Having found at an early Walker hearing, People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965), that the confession had been voluntarily made, the court told the jury:

"The Court: Now, I think it is time for the Court to caution the jury as to what has happened here as to the statement.

"I have ruled, as a matter of law, that this statement was at the alleged time here, let’s put it that way, was given freely and voluntarily.

"Mr. Ziemba: Now, I object your Honor.”

Later in his charge to the jury the court repeated his finding of the Walker hearing and instructed the jury that it was their function to decide whether the statement had in fact been made. The effect of the instructions delivered is to stamp upon the confession the endorsement of the court and substantially deprive the defendant of his right to a jury determination of whether the statement had been made, and if so, the weight to be afforded it. Walker, supra. Upon this ground, the defendant is entitled to a new trial. People v Williams, 46 Mich App 165; 207 NW2d 480 (1973), People v Gilbert, 55 Mich App 168; 222 NW2d 305 (1974).

The defendant also assigns error to the unobjected-to failure of the trial court to instruct the jury on the elements of the underlying felony. We have held that even absent any objection, if commission of the underlying felony is substantially in issue, it is incumbent upon the court to instruct on its elements. Failure to so instruct may constitute manifest injustice. People v Jones, 66 Mich App 223; 238 NW2d 813 (1975), People v McGhee, 67 Mich App 12; 239 NW2d 741 (1976). The trial court is cautioned, upon retrial, to consider the impact of these decisions.

The defendant’s conviction is reversed and the matter remanded to the trial court.

D. F. Walsh, J., concurred.