Application for leave to appeal filed to Supreme Court December 18, 1967.
R.M. RYAN, J.
On November 3, 1957, a house in Grand Rapids, Michigan, was partially burned. The fire resulted in the death of Albert Mason who was asleep in the house at the time of the fire. Defendant was charged with having murdered Mason in violation of CL 1948, § 750.316 (Stat Ann 1954 Rev § 28.548), and upon being convicted he was sentenced to life imprisonment. The sole basis for the appeal in this matter is defendant's allegation that certain statements made by him to the police should have been excluded from the trial because they were not made voluntarily. In support of his position defendant alleges that after his arrest he was held
These allegations raise a serious question concerning the voluntariness of defendant's statements. In People v. Walker (on rehearing, 1965), 374 Mich. 331, the Supreme Court of this State clearly set forth the procedure to be followed in determining the voluntariness of confessions, and this procedure was expressly made retroactive. The trial judge must conduct a separate hearing out of the presence of the jury to determine the issue of voluntariness. At this hearing, the defendant may take the stand for the limited purpose of making a record of facts and circumstances surrounding the confession. By taking the stand for this limited purpose, the defendant does not waive his right not to testify at the trial in chief. Only after a full and adequate hearing and a finding by the trial judge that the statements were voluntary may such statements be admitted into evidence. Since the trial judge in the case at
Defendant alleges that the police failed to comply with the statutes requiring that the accused in a criminal prosecution be taken before a magistrate "without unnecessary delay" after his arrest (CL 1948, § 764.13 [Stat Ann 1954 Rev § 28.872]
(a) the duration and conditions of detention;
(b) the manifest attitude of the police toward the accused;
(c) the physical and mental state of the accused, and
(d) diverse pressures which sap or sustain the accused's powers of resistance or self-control.
The ultimate test, said the Court at page 602, is: "Is the confession the product of an essentially free and unconstrained choice by its maker?"
Defendant claims that he was denied his right to counsel after the police investigation had focused upon him as a suspect, which right was secured by Escobedo v. Illinois (1964), 378 U.S. 478 (84 S.Ct. 1758, 12 L ed 2d 977). However, defendant does not allege that he requested counsel and the Escobedo rule does not apply unless a request and denial is shown. See People v. Hoffman (1965), 1 Mich.App. 557. Nevertheless, even though the situation now before us does not come within the terms of Escobedo, the absence of counsel during defendant's detention is one of the factors to be considered in determining the issue of voluntariness. See Davis v. North Carolina (1966) 384 U.S. 737 (86 S.Ct. 1761,
One other allegation of defendant merits discussion. Although the police knew the day after his arrest that a man had died as a result of the fire, they withheld this information from defendant until he had made his incriminating statements. Const 1908, art 2, § 19,
Should the trial judge find, in the case at bar, that defendant's statements were made voluntarily, there will be no reason to conduct a new trial since no other citations of error are made by defendant. However, if the evidentiary hearing discloses that the statements were involuntary, then the trial court is instructed to vacate the conviction and the sentence, and to proceed with a new trial.
BURNS, P.J., and HOLBROOK, J., concurred.