Opinion
Docket No. 3,415.
Decided June 26, 1968. Leave to appeal denied April 15, 1969. See 381 Mich. 815.
Appeal from Genesee; Parker (Donn D.), J. Submitted Division 2 February 29, 1968, at Lansing. (Docket No. 3,415.) Decided June 26, 1968. Leave to appeal denied April 15, 1969. See 381 Mich. 815.
Clinton M. Dodge was convicted of armed robbery. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Assistant Prosecuting Attorney, for the people.
Jerome F. O'Rourke, for defendant.
Defendant Clinton M. Dodge was found guilty by a jury on October 3, 1962 of the armed robbery of the Durant Hotel located in Flint, Michigan, and was sentenced to 27-1/2 to 50 years in prison.
CLS 1961, § 750.529 (Stat Ann 1968 Cum Supp § 28.797)
On October 26, 1966, this Court granted the defendant's delayed application for leave to appeal and requested the trial court to make a determination upon a separate record of the voluntariness of defendant's statements admitted in evidence at trial, pursuant to People v. Walker (On Rehearing, 1965), 374 Mich. 331. The trial court was also requested to determine whether the defendant was illegally detained before being taken to a magistrate, contrary to the statute and the rule laid down in People v. Hamilton (1960), 359 Mich. 410. The order granting the application for leave to appeal specified that the decision of the trial court was to be a final judgment for the purposes of review.
CL 1948, § 764.26 (Stat Ann 1954 Rev § 28.885).
The trial court conducted a Walker hearing which commenced on February 2, 1967 and concluded on February 3, 1967. The trial court in a written opinion set forth a brief history of the case followed by his opinion:
"The testimony taken during the hearing, pursuant to People v. Walker (On Rehearing, 1965), 374 Mich. 331, discloses:
"(1) The defendant was arrested at about 4 a.m. on May 2, 1962.
"(2) He was taken to the Michigan State police post at Pontiac, where he remained until approximately 8 a.m. During this time, he made a request to see his wife, which request was refused by the police.
"(3) The defendant was returned to Flint at about 8 a.m., and arrived at Flint at about 9 a.m.
"(4) He was intermittently questioned by Flint police for some time after 9:30 a.m. until 3 p.m., when he was brought on a line-up for possible identification. He was taken before a line-up also at about 7 p.m.
"(5) During this time, defendant made inquiry to see legal counsel, and also, asked Flint police that his wife should be called. Both requests were refused by Flint officers.
The record shows that defendant didn't ask for any specific attorney and in fact told the officers that he had no particular attorney in mind. He further advised officers that his wife wasn't then home but that she would be home later that day.
"(6) Some time after 7 p.m. on May 2, 1962, the defendant made certain statements which were admitted in evidence at the trial of this matter.
"(7) On May 3, 1962, he was arraigned in the municipal court of Flint.
"In Hamilton, the Court indicated that the aim of the requirement of due process is to prevent fundamental unfairness in the use of evidence, whether true or false. The detention of the defendant for a period of approximately 11 hours in Flint prior to the time of receiving and obtaining his admissions does not contain the element of `fundamental unfairness.' Although the defendant was not permitted to see either his wife or to reach an attorney, there is no showing that either of these refusals by the police authorities were persuasive in his making admissions that were used at trial.
"The detention of the defendant was not unlike that depicted in People v. Harper (1962), 365 Mich. 494, where a period of some 12-1/2 hours elapsed from the time that Harper was arrested, until such time as statements were taken from him. As is stated in Harper:
"`None of the circumstances which so strongly compelled our finding Hamilton's confession was involuntary is present in the case at bar. Nothing in this record suggests that the delay of 12-1/2 hours between arrest and arraignment was for the "manifest purpose * * * of sweating a confession" from defendant, as we found the purpose to be of Hamilton's prolonged detention.'
"In People v. Carlton (1966), 5 Mich. App. 20, in a further interpretation of Hamilton, the Court said:
"`A reading of Hamilton and of subsequent cases interpreting and explaining it, leads to the conclusion that it is unnecessary delay in arraignment "when done for prolonged interrogatory purposes without proven justification for delay" which renders unlawful a confession made during such a period.'
"In the present case, the defendant was detained prior to arraignment for purposes relating to investigation and to his identification in 2 line-ups by the victims of the crime. There is no showing that there was any effort to `sweat out' a confession from the defendant. The defendant is a man of unusual intelligence, and is knowledgeable in the ways of the law, and cannot claim the same inadequacies as the defendant in Hamilton.
"There is no showing of violation of CL 1948, § 764.26 (Stat Ann 1954 Rev § 28.885), or of any unnecessary delay prior to his arraignment before a magistrate.
"This court therefore concludes that the statements obtained from the defendant Dodge were voluntarily made, and that he was not illegally detained prior to arraignment before the magistrate on May 3, 1962."
We agree with the trial court's opinion and affirm.
McGREGOR, P.J., and A.C. MILLER, J., concurred.
.