
382 Mich. 1 (1969)
167 N.W.2d 285
PEOPLE
v.
DOVERSPIKE.
Calendar No. 2, Docket No. 51,653-1/2.
Supreme Court of Michigan.
Decided May 5, 1969.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Allen R. Briggs, Prosecuting Attorney, for the people.
Wisti, Jaaskelainen & Schrock, for defendant.
DETHMERS, J.
In September of 1964 defendant was tried before a jury in the Ontonagon county circuit court and convicted by verdict on September 14th of the crime of manslaughter.[*] On appeal to the Court of Appeals defendant urged 5 alleged grounds of error for a new trial. The Court of Appeals held against defendant on 4 but remanded to the circuit court for a Walker-type hearing, as provided in People v. Walker (on rehearing, 1965), 374 Mich 331, and determination by the circuit judge of one issue only, that of the voluntariness of defendant's confession which had been admitted into evidence as a people's exhibit on trial.
*4 From the Court of Appeals decision leave was granted to defendant to appeal to this Court, restricted, however, to 3 issues as follows:
"(1) Should new trial be granted because of the claim that defendant was not advised of his rights and his right to counsel during the period of interrogation?
"(2) Did the Court of Appeals err in remanding the case for a determination of voluntariness of the confession by a judge rather than by a jury?
"(3) Did the trial court err in allegedly restricting the opening statement of defendant's counsel and the testimony of defendant as to defendant's state of mind at the time of the offense?"
This case and the first and second issues are naturally related to the questions in Escobedo v. Illinois (1964), 378 US 478 (84 S Ct 1758, 12 L Ed 2d 977), and Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974). What "the precise holding" was in Escobedo, that Miranda laid down additional guidelines for situations not presented by the Escobedo case, and that both are to be applied prospectively only to persons whose trials began after the dates that decisions were handed down in those 2 cases respectively, is clearly stated in the opinion written for the court by Mr. Chief Justice Warren in Johnson v. New Jersey (1966), 384 US 719 (86 S Ct 1772, 16 L Ed 2d 882), as follows:
"Apart from its broad implications, the precise holding of Escobedo was that statements elicited by the police during an interrogation may not be used against the accused at a criminal trial,
"`[where] the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting *5 incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent. * * *'" 378 US, at 490, 491 (84 S Ct at 1765 [12 L Ed 2d at 986]).
Because Escobedo is to be applied prospectively, this holding is available only to persons whose trials began after June 22, 1964, the date on which Escobedo was decided.
"As for the standards laid down one week ago in Miranda, if we were persuaded that they had been fully anticipated by the holding in Escobedo, we would measure their prospectivity from the same date. Defendants still to be tried at that time would be entitled to strict observance of constitutional doctrines already clearly foreshadowed. The disagreements among other courts concerning the implications of Escobedo, however, have impelled us to lay down additional guidelines for situations not presented by that case. This we have done in Miranda, and these guidelines are therefore available only to persons whose trials had not begun as of June 13, 1966. See Tehan v. Shott (1966), 382 US at 409, n. 3 (86 S Ct at 461, 15 L Ed 2d 455), in relation to Malloy v. Hogan (1964), 378 US 1 (84 S Ct 1489, 12 L Ed 2d 653), and Griffin v. California (1965), 380 US 609 (85 S Ct 1229, 14 L Ed 2d 106)."
Accordingly, Miranda is not to be applied to this case in which trial began in September of 1964, before decision in Miranda.
As for application of the Escobedo decision, there is nothing in the record in the instant case to bring it within the "precise holding" of Escobedo as set forth in Johnson, namely, "the suspect has requested and been denied an opportunity to consult with his lawyer". Escobedo does not, therefore, require reversal on this appeal and remand for new trial.
*6 The Court of Appeals rejected the people's contention that the hearing on a motion for suppression of the alleged confession constituted the equivalent of a Walker hearing, holding that it merely permitted the admission of the evidence pertaining to the confession but left the determination of the voluntariness of the confession to the jury which was trying his guilt or innocence. This, said the Court of Appeals, violated the rule laid down in Walker. That Court went on to say that in fairness to the trial judge it was to be noted that in Walker the decision had not been handed down at the time of trial of the case at bar.
Defendant contends that he is entitled to jury trial in a criminal case, and that the Court of Appeals remand for circuit judge determination, as provided in Walker, of the voluntariness of the confession deprives him of his constitutionally guaranteed right of jury decision of that question also. Accordingly, defendant requests that we reconsider Walker and modify the rule laid down therein.
Re-examination of our opinion and decision in Walker does not persuade us that it should be changed. In this view we are supported by the opinion and decision of the United States Supreme Court in Jackson v. Denno (1964), 378 US 368 (84 S Ct 1774, 12 L Ed 2d 908).
An examination of the pertinent portions of the appendix relating to defendant counsel's opening statement and defendant's testimony discloses that the defense was not restricted as to a showing of defendant's state of mind at the time of the offense. On the contrary, great latitude was allowed in that connection and no grounds for reversal and grant of new trial for this reason are presented by the record.
*7 In its opinion for order of remand the Court of Appeals wrote:
"We therefore, as in Walker, supra, release our jurisdiction of the cause and direct the circuit court to assume jurisdiction to make a determination upon a separate record of the issue of voluntariness of the confession only. At this hearing, the defendant may take the stand and testify for the limited purpose of making a record of his version of the facts and circumstances under which the confession was obtained. By so doing, defendant does not waive his right to decline to take the stand on trial in chief, if retrial is ordered. Neither does he waive any of the other rights stemming from his choice not to testify.
"If the trial judge, on the basis of the separate hearing and record made, determines that the confession was involuntarily given defendant will thereupon be granted a new trial. If he determines the confession to have been voluntarily given and thus admissible in evidence, defendant will have had a trial affording him constitutional due process.
"Accordingly, the case is remanded to the circuit court for the further proceedings herein directed."
Order of the Court of Appeals is affirmed.
T.E. BRENNAN, C.J., and KELLY, BLACK, T.M. KAVANAGH, and ADAMS, JJ., concurred.
T.G. KAVANAGH, J., took no part in the decision of this case.
NOTES
[*]  CL 1948, § 750.329 (Stat Ann 1954 Rev § 28.561).  REPORTER.
