People v. McCager

¶1(concurring). I agree fully with Mr. Justice Souris, yet would add a few sentiments concerning a recurrently misunderstood procedural aspect of this and like cases.

¶2As in People v. Roberts, 364 Mich 60, 65, a question of admissibility of evidence is primarily before us. In Roberts4 present members of the Court (Justices Dethmers, Carr, Kelly, and Black) stressed the procedural point in these words (p 61):

“Defendant cites People v. Barker, 60 Mich 277 (1 Am St Rep 501), and People v. Prestidge, 182 *126Mich 80, for the proposition that the question whether a confession was voluntary is for the court, if the matter is clear and the testimony on the subject is undisputed, but if there is ground for doubt, the court may leave it to the jury to determine whether the confession should be considered. This is their holding. In both cases cited, however, the trial had been had, resulting in convictions. Here there has been no trial. When it is had there will be time enough for the trial court, as the question arises, to determine, on the state of the record then before it or on such further testimony on the subject as may then be adduced, whether the voluntariness of the confession should then be decided by the court or left for jury determination. From the court’s ruling at such time, opportunity for application for leave to appeal will still be available.”

¶3If in the course of trial it is determined judicially that the alleged confession of this apparently intelligent adult defendant was involuntary within rules considered in People v. Hamilton, 359 Mich 410, admission thereof in evidence will be denied by the trial judge. If the adduced proof leaves the question in doubt, the jury will be instructed to determine the question of voluntariness and so the question of admissibility. Then and only then, as firmly suggested in Roberts, may such crucial questions be settled properly in conformity with current Michigan practice.

¶4There may, of course, be circumstances under which it is proper to determine such a question upon pretrial motion to quash and discharge.* But no *127such circumstances are present in this case. Here it appears beyond question that an able-bodied male brutally murdered one Mary Cooper. And the record leaves one in doubt whether the defendant was unlawfully detained or unlawfully interrogated prior to or when, as testified by Officer Clark, he confessed as related here. In short, the record so far discloses no “totality of circumstances” upon which it may be said that the defendant’s confession was involuntary as a matter of law; or that it was extracted or obtained, again as a matter of law, by unlawful means.

¶5When the question of admissibility of an offered confession came first to the considered attention of this Court (People v. Barker, 60 Mich 277, 294-300 [1 Am St Rep 501]), procedural rules of tried value were adopted. We refer the profession thereto, noting from Barkerand the Roberts-cited case of Prestidge; likewise People v. Owen, 154 Mich 571 (21 LRA NS 520); People v. Biossat, 206 Mich 334; People v. Foster, 211 Mich 486; and People v. Podolski, 332 Mich 508 (all following Barker) that determination of the question of admissibility was made during the course of trial of the accused, at which time all then available foundation testimony the people had assembled was before the Court.* That, as we conceive, is the right occasion for determination that this defendant did or did not voluntarily and so validly confess.

¶6Courts are bound to guard and carefully defend the constitutional rights of persons charged with crime. They are bound by like obligation to protect society from the ravages of crime and to refrain from undue hampering of the presumptively valid *128(see Barker) efforts of police officers to perform duties which are quite as difficult as those of judges. In this jurisdiction it is believed that such dual obligation is acquitted best by insistence generally that questions of admissibility of evidence arising in criminal cases be settled during trial rather than by the device of motion prior to trial. Furthermore, such is the tendency of modern rulings made by the Federal courts. See DiBella v. United States (March 19, 1962), 369 US 121 (82 S Ct 654, 7 L ed 2d 614).

¶7I concur in affirmance.