People v. Marsh

¶1(dissenting). In 1941 the defendant, Fred Marsh, killed Herman Berger. The decedent was slain in his own apartment after the defendant beat, attempted to strangle, and finally killed him by jamming a ruler down his throat. At the time of the killing, Berger was a 69-year-old man of slight stature (5'7", 135 pounds). Marsh was 22 years old.

¶2The defendant fled after the crime, was apprehended in Pennsylvania and returned to Michigan for trial. He pleaded guilty and the court found, after taking proofs, that the crime was first degree murder and sentenced defendant to life in prison.

¶3After serving 22 years in prison the defendant was paroled on May 20, 1963. While still on parole he was arrested and convicted of gross indecency (May 12, 1965) and sentenced to prison for 4-1/2 to 5 years. He was returned to prison to serve that sentence and also as a parole violator. Subsequently on April 11, 1966, he sought and obtained a new trial on the murder conviction, and it is for alleged errors in the new trial (held in August, 1966) that he brings this appeal.

¶4There are several grounds urged as the basis for a new trial, but the court, I believe, sees no substance to any of them except the alleged improper use of defendant’s statements given by the defendant to law enforcement authorities after his *537arrest. These statements had been suppressed as evidence before the 1966 trial on motion of defendant.

¶5In order to put the prosecutor’s questions in perspective it is important to review briefly what defendant’s theory of the case is and what defendant and his counsel said at the trial.

¶6In his opening statement to the jury, defendant’s attorney, though disclaiming any theory of self-defense admitted that defendant killed the decedent “during a struggle” by “passing a ruler across his (decedent’s) mouth” in order to shut the decedent up. (The proofs showed that 11 inches of a 12-inch ruler had been jammed down decedent’s throat severing a nerve and causing his death.)

¶7However, when the defendant testified in his own behalf he said he “honestly believed” that he did not kill the decedent; that on a number of occasions he denied having killed decedent; but that he had had “a fracas” with him. As noted above in the court’s opinion, it was on direct examination that defendant was first asked about statements or admissions :

“Q. Now, have you ever stated, admitted anything of the sort that you intended to rob Chaloner’s store or to rob Mr. Berger?

“A. No, sir, I never made such a statement.”

¶8This was the first reference in the trial to statements or admissions by the defendant. Evidently feeling that the “door had been opened” (cf. Walder, infra), the prosecutor on cross-examination asked defendant:

“Q. Didn’t you tell the police in Pennsylvania that you were going, that the reason you went up to that apartment that night was to get even with Mr. Berger?

“A. No, sir.

*538“Q. Square up with him?

“Q. Didn’t you tell the police in Pennsylvania that?

“A. Yes, I did. I was subject to saying that at the time.

“Q. They weren’t beating you or anything like that?

“A. No, sir.

“Q. They treated you good down there, didn’t they?

“A. Yes, sir.

“Q. You told the police in Pennsylvania then that Mr. Berger told you several times not to come into the store and he accused you of stealing from the store and that you went up to his apartment to get even with him. Is that right?

“A. I do not recall making such a statement.

“Q. Well, let’s break it up, piecemeal.

Do you remember telling the police in Pennsylvania that Herman Berger told you not to come into the store and accused you of stealing?

“A. I do not recall making such a statement.

“Q. Do you recall telling the police you went to his store to get even with him?

“A. No, sir.

“Q. You don’t recall telling them that in Pennsylvania ?

“A. No, sir.

“Q. Do you recall when Commissioner Arch Wilson and Trooper George Seymour came down to see you, pick you up and bring you back?

“A. Yes, sir.

“Q. Now, when they came to pick you up they were good to you, weren’t they?

“A. Yes, sir.

“Q. They didn’t beat you or anything like that?

“A. No, sir.

“Q. Do you remember telling them on the way back that you wanted some money and that you de*539cided to go to Herman Berger’s apartment and rob him to get the keys to get out?

“A. It was, well, sir, we had so much conversation I just don’t remember all of it.”

¶9There is no claim that the statements alluded to were obtained by force or promises. The claimed error arises from the mere use of such statements to attempt impeachment of the defendant, and not, of course, to use such statements as affirmative evidence to establish the crime.

¶10The statements, orally made to arresting officers and in writing to the prosecutor, were given by defendant in 1941. Since the “Miranda warning” (enunciated in June, 1966)1 was not given, the statements were suppressed on the retrial, though whether they should have been is at least open to question.

¶11Admittedly there is no precedent for this court to follow in our own state court reports. The majority of the court cites and relies upon two “rules”: The Brewton23rule and the Walder2rule. The majority finds both rules violated by the state in this case through use of the statements for impeachment.

¶12Brewton, as the majority notes, permits no use whatsoever of suppressed prior contradictory statements.

¶13The Brewton Case, of course, is not binding on this court. There are sound reasons why it should not become a precedent in this state and they are best *540summarized in the dissent of three of the seven justices in that case: