Opinion
Docket No. 7,344.
Decided June 24, 1970.
Appeal from Wayne, Harry J. Dingeman, Jr., J. Submitted Division 1 May 5, 1970, at Detroit. (Docket No. 7,344.) Decided June 24, 1970.
John Franklin Morgan was charged with negligent homicide. Defendant's motion to quash the information denied. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Angelo A. Pentolino, Assistant Prosecuting Attorney, for the people.
Kasoff, Young, Gottesman Kovinsky, for defendant.
The pertinent facts are extracted from the certified concise statement of the material facts and proceedings, viz.:
"On June 11, 1968, a preliminary examination was held in the municipal court for the city of Livonia before the Honorable James McCann, municipal judge. The defendant, John F. Morgan, had previously been charged with negligent homicide by the people of the State of Michigan. During the course of the examination, the people attempted to introduce the testimony of officer Raymond Laundrosh who had been called to the scene of an accident involving two vehicles. * * * Officer Laundrosh testified that when he appeared at the scene of the accident there were approximately fifty (50) to seventy-five (75) persons present. Officer Laundrosh further testified that he did not know who the driver of one of the vehicles was and sought to have that driver identify himself by asking on three different occasions who was the driver of the vehicle in question. Defense counsel objected to this line of questioning and particularly to the identification of the defendant, John F. Morgan, who, according to the officer, stepped forward and identified himself. Defense counsel's objections were based upon the case of People v. Gilbert (1967), 8 Mich. App. 393 and the 5th and 14th Amendments to the United States Constitution. The court overruled the objections and allowed officer Laundrosh to testify as to who had stepped forward and also to point out in the courtroom the defendant as the party who had identified himself. Subsequently the defendant was bound over to circuit court * * * was arraigned * * * and stood mute. The defendant then filed a motion to quash the information and discharge the defendant. * * * The * * * court entered an order denying the motion and the defendant filed his application for leave to appeal."
The question dispositive of the principal issue is whether or not a police officer is precluded from testifying at a later prosecution that the defendant stepped forward when the officer, prior to any Miranda warnings to the persons assembled before him, asked of the crowd, "Who is the driver of that truck?"
Miranda v. Arizona (1966), 384 U.S. 436 ( 86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974).
The identity of this defendant was not known to the police officer, and the officer had not yet begun to focus accusatorily on this defendant in order to seek information from him. The officer was confronted by approximately 50 to 75 persons, and his question was addressed to the group and not specifically to this defendant. The record does not show that the officer had any reason to suspect Morgan as a perpetrator of a crime. Defendant contends that Michigan statutes require him to report that he was the driver of the vehicle to the nearest police officer on pain of a misdemeanor in the event that he failed to do so. The purpose of the Michigan accident report statute is to apprise the police that an accident has occurred, and to furnish statistical information as to the number and cause of accidents.
MCLA § 257.622 (Stat Ann 1968 Rev § 9.2322).
CL 1948, § 257.624 (Stat Ann 1968 Rev § 9.2324).
Defendant relies upon People v. Gilbert (1967), 8 Mich. App. 393, in which the Court decided that incriminating admissions, such as those involved in the instant case, made in the course of making an accident report as required by statute, were not admissible in evidence. In the Gilbert case, the defendant was charged with manslaughter for negligently driving his automobile while under the influence of intoxicating liquor. The investigating officer testified that when he arrived at the scene, shortly after the accident, he noticed that the defendant appeared very much disturbed and detected the aroma of intoxicating beverages on the defendant's breath. About one-half hour later, at the hospital, the officer questioned Gilbert. The Court, in its decision, stated:
"In response to the question of who was driving the automobile, asked by the police officer in order to fill out the report required by statute, the defendant made incriminatory admissions that he was driving and that he was drunk at the time. Defendant was responding to the questions asked and was thus required by statute to speak. That the statements made were incriminatory is beyond dispute." (Emphasis added) People v. Gilbert, supra, 399.
The police were performing a required police function in investigating the Gilbert accident. There is no indication in the instant case that the police officer knew or suspected that a crime had been committed at the time he asked the critical question here involved, as to the identity of the truck driver. Until an accusatorial finger points at the defendant, none of his constitutional rights are violated.
Nothing in the record shows, states, or even indicates that the critical question was asked by the police officer "in order to fill out" the report required by statute, and therefore, the decision in Gilbert, supra, relied upon by the defendant is not analogous. Defendant has predicated his appeal on an untenable position. The examining magistrate and the circuit court rulings on the question of the admissibility of defendant's reply to the officer's question as to the identity of the truck driver were correct.
Defendant also cites Miranda v. Arizona, supra, as supporting his contention. However, Miranda is inapposite to the situation herein. People v. Gilbert, supra; People v. Patton (1968), 15 Mich. App. 198.
Affirmed.
All concurred.