                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                       FOR PUBLICATION
                                                                       September 12, 2017
                Plaintiff-Appellee,

v                                                                      No. 332500
                                                                       Washtenaw Circuit Court
RAYMOND CHARLES PIERSON,                                               LC No. 10-001241-FH

                Defendant-Appellant.


Before: MARKEY, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.

BOONSTRA, J. (concurring in part and dissenting in part).

        Throughout any juror’s courtroom experience, a trial judge makes innumerable rulings on
the admissibility of evidence. Sometimes those rulings are made in the presence of the jury;
sometimes they are made outside the presence of the jury. But either way, they are rulings that
are necessary to the conduct of a trial, and jurors are properly made to understand that. Both at
the outset of a trial and at its conclusion, juries are therefore generally instructed regarding what
constitutes evidence, the judge’s role in determining admissibility of evidence, and the jury’s
role as factfinder and weigher of credibility.

        It is in this context that we must evaluate the issue presented in this case. Before trial,
defendant moved to suppress his alleged (and allegedly unprompted) statement to police officers
that “I broke into the house but the guy had the gun.” The trial court held a Walker1 hearing, and
determined that the statement was admissible.

        At the outset of the trial, the trial court delivered its preliminary instructions to the jury,
including that statements of attorneys are not evidence, that the jury must decide the case based
only on the admitted evidence, that the jury was ultimately responsible for determining which
witnesses or portions of witness testimony to believe, and that the trial court’s rulings on
objections to statements made by witnesses were based on the law and were not meant to reflect
the opinion of the court on the facts of the case. The jury affirmed that it would follow the trial
court’s instructions.



1
    People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).


                                                 -1-
        Among the witnesses who testified at trial was one of the officers in question, and among
the subjects on which he was questioned was the statement that the trial court had determined at
the Walker hearing to be admissible. During the prosecution’s redirect examination of the
officer, the following colloquy occurred:

                [Prosecutor]. Okay. Now, in terms of the statement that the defendant
         made to you, let me back up. I believe on cross-examination you said you didn’t
         question [defendant].

                [Officer]. That’s correct.

                 [Prosecutor]. And I believe in terms of your testimony, you said he told
         you he was breaking into the apartment but that the guy pulled a gun on him; is
         that correct?

                [Officer]: Yeah, that the guy had a gun.

               [Prosecutor]: The guy had a gun. Now, can you explain when you give
         Miranda[2] rights?

                [Officer]: Anytime someone’s not free to leave.

                [Defense counsel]: Foundation.

                The Court. You know what, I’m going to cut that part of it off here. The
         Court already held a hearing on this matter and I have ruled that the defendant
         was properly advised of his rights and that the statements that have been
         introduced are admissible. Go ahead.

                [Defense counsel]. I’ll object to that.

                The Court. Fine. Go Ahead. It’s true. Have a seat. Go ahead.

        Shortly after this exchange, and during defense counsel’s recross-examination of the
officer, there was the following exchange:

                [Defense counsel]. You appreciate the Court has ruled that statements by

                my client are admissible, correct?

                [Officer]. I don’t—

                [Defense counsel]. He just said it. The Judge just said that.



2
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


                                                 -2-
               [Officer]. The Judge said it. I don’t know if I appreciate it.

               [Defense counsel]. Okay. So my client gave a statement to you—

               The Court. You know what, that doesn’t matter either. So go ahead.

       Defense counsel further elicited testimony from the officer that defendant’s statement
was not written down or recorded at the scene, but instead was written in the officer’s report
hours later. Defense counsel also pointed out inconsistencies between another witness’s
testimony regarding her statements to the officer that night and the statements that the officer had
recorded in his report. During closing arguments, defense counsel reminded the jury that it could
choose to disbelieve the officer’s testimony regarding defendant’s statement.

        At the conclusion of the trial, before the jury began its deliberations, the court further
instructed the jury, and again instructed them, inter alia, that it is the judge’s role to determine
what evidence is admissible, that it is the jury’s exclusive role to determine the facts and to
weigh the credibility of witnesses, that it was for the jury to decide which witnesses to believe
(either in whole or in part), and that in doing so it should assess the testimony of police officers
using the same standards by which it evaluated the testimony of other witnesses. Finally, the
jury was instructed that the trial court’s comments and rulings were not evidence. Among the
instructions given were the following:

       It’s your job and no one else’s . . . to decide what the facts of the case are, and to do
       that you have to decide which witnesses you believe and how important you think
       their testimony is. You don’'t have to accept or reject everything a witness told you.
       You are free to believe all, none, or a part of any person's testimony.

                                               * * *

       When you discuss the case and decide on your verdict, you may only consider the
       evidence that has been properly admitted. Therefore, it's important for you to
       understand what is evidence and what's not. Evidence in this case includes only
       the sworn testimony of the . . . [parties’] witnesses, and the exhibits which were
       admitted into evidence.

                                               * * *

       My comments, my rulings, indeed these instructions are also not evidence. It’s
       been my duty to see to it that the trial was conducted according to the law and to tell
       you the law that applies to this case. But when I make a comment or give an
       instruction, I am not trying to influence your vote or express a personal opinion
       about the case. Indeed, if you believe I have an opinion about how you should
       decide this case, pay no attention to it. You are the judges of the facts in this case,
       not me. At times during the trial, I excluded evidence or sustained objections.
       Don't consider those things in deciding the case. Make your decision only on the
       evidence that I let in and nothing else. As I said, your decision should be based on
       all the evidence regardless of which party presented it.


                                                 -3-
                                               * * *

       Now, as I said, it's your job to decide what the facts of the case are, and to do that you
       have to decide which witnesses you believe and how important you think their
       testimony is. You don't have to accept or reject everything a witness told you. You
       are free to believe all, none, or a part of any person’s testimony.

                                               * * *

       You've heard testimony from witnesses who are police officers. That testimony is
       to be judged by the same standards you used to evaluate the testimony of any
       other witness.

        The lead opinion holds, notwithstanding the trial court’s instructions to the jury and the
inherent role of a trial court in determining the admissibility of evidence, that it was error (albeit
harmless error) for the trial court to reference in the presence of the jury that it had already ruled
that the statement in question was admissible. I respectfully disagree and therefore dissent from
the lead opinion’s analysis and finding of error.

          The trial court in this case held a Walker hearing to determine whether defendant’s
statement was voluntary. The purpose of a Walker hearing is to protect “the defendant’s
constitutional [due process] right at some stage in the proceedings to object to the use of the
confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a
determination uninfluenced by the truth or falsity of the confession.” Jackson v Denno, 378 US
368, 376-377; 84 S Ct 1774; 12 L Ed 2d 908 (1964) (citation omitted).3 This right remains
protected at trial if the jury is limited to considering the “weight and credibility” of the statement,
i.e., if defendant is free to argue, and the jury is free to conclude, that the statement was not made
or was not true. Walker, 374 Mich at 337. A Walker hearing thus is an evidentiary hearing held
outside the presence of the jury on the issue of the voluntariness of a confession or incriminating
statement. If the trial court determines that a statement to have been voluntarily made, then the
statement is admitted into evidence at trial. However, “[t]he issue of voluntariness is not
submitted to the jury. Jury consideration is limited to its weight and credibility.” See Walker,
374 Mich at 337-338; People v Britt, 37 Mich App 175, 177; 194 NW2d 528 (1971).

        The lead opinion correctly states that we have held that it is error for a trial court to
inform a jury that it has determined that a defendant’s confession is voluntary. In Walker, our
Supreme Court stated that once a trial court has ruled a defendant’s statement to be admissible,
the jury’s “determination should be limited to truthfulness, i.e., weight and credibility;” in other
words “the jury may still consider its evidentiary weight.” Walker, 374 Mich at 337-338. And in
People v Gilbert, 55 Mich App 168; 222 NW2d 305 (1974), this Court noted that a trial court’s


3
  Put another way, the trial court in a Walker hearing does not consider whether a challenged
confession or incriminating statement is credible (such as by considering corroborating
evidence), but only whether a defendant’s right not to be convicted based on a coerced
confession has been protected. See Jackson, 378 US at 376-377.


                                                  -4-
ruling that a defendant’s statement was admissible “merely placed the confession on an equal
footing with all other properly admitted evidence[,]” leaving the defendant “as free as he was
before the Walker hearing to familiarize the jury with the circumstances that attended the taking
of his confession, including facts bearing on voluntariness, to impeach its credibility or to
challenge the fact that it was ever given at all.” Id. at 172. Further, this Court in Gilbert stated:

       After such evidence has been admitted, the trial judge may instruct the jury that
       they should determine, on the basis of all the relevant evidence, 1) if the
       confession was made, and 2) if they so find, they should decide if the statement is
       true.

       The trial court should not, as happened in this case, go on to discuss anything
       more. For, to inform the jury of the existence, nature, and results of a Walker
       hearing not only makes it unlikely that the jury will thereafter decide the
       confession was never made, . . . but it also tends to unfairly discount the
       credibility of defendant's impeaching evidence, especially that properly admitted
       evidence that relates to voluntariness. [Id. at 172-173 (citation omitted).]4

         In my judgment, the trial court did not err by merely noting that defendant’s statement
was found to be admissible. After all, a jury is surely aware that the evidence that is submitted to
it has either been found to be admissible or is so clearly admissible that no party has argued
against its admission. Unlike in Gilbert, the trial court in this case did not inform the jury that it
had determined that defendant’s statement was voluntary or speak at length about the
circumstances surrounding defendant’s statement so as to potentially influence the jury’s
determination of whether the statement had in fact been made and whether it was true. Indeed,
the trial court in Gilbert stated that it had evaluated “the duration and conditions of detention, the
attitude of the police officers, the physical, mental state of the accused, the diverse pressures that
might sap the accused’s strength and so forth” in a separate evidentiary hearing. Gilbert, 55
Mich App at 172. The trial court in Gilbert thus invaded the province of the jury by imparting to
the jurors its own assessment of the credibility of the witnesses, and “crippled the defendant’s
ability to challenge a confession.” Id. at 173.

        By contrast, the trial court here did no such thing. It instead merely stated that it had
ruled that defendant’s statement was admissible, and it thereby cut off both the prosecution’s and
defense counsel’s attempts to further explore the circumstances under which defendant was
advised of his Miranda rights. Those circumstances relate to a subject matter that is within the
province of the court, rather than the jury. They relate to whether the defendant was properly
advised of his rights and whether he knowingly and intelligently waived those rights and
otherwise voluntarily made the statement, such that evidence of his statement was properly
admitted for the jury’s consideration. See People v Godboldo, 158 Mich App 603, 605; 405
NW2d 114 (1986); see also People v Akins, 259 Mich App 545, 564–565; 675 NW2d 863


4
  As noted, the jury is therefore entitled to assess the admissible evidence surrounding the
making of the statement, but is not asked to determine whether it was made voluntarily. Walker,
374 Mich at 337-338.


                                                 -5-
(2003). The trial court’s statement and its limiting of the questioning regarding defendant’s
Miranda rights did not, however, in any way render defense counsel unable to challenge the
credibility of his statement, or even its existence. See Gilbert, 55 Mich App at 172. Indeed, the
trial court’s statement and ruling imparted no assessment of whether the officer’s testimony
regarding defendant’s statement was credible, or indeed whether the statement was made at all.
Defense counsel in this case thus remained free to impeach the credibility of the officer or
challenge whether the statement was even made, Gilbert, 55 Mich App at 172, and he in fact did
so at trial by challenging the officer’s testimony, pointing out inconsistencies in the officer’s
report and the testimony of another witness, and eliciting testimony regarding defendant’s mental
state at the time he gave the statement, including testimony from the officer that shortly before
the statement he had pointed his service weapon at defendant. And, again, the trial court
repeatedly instructed the jury that it was the ultimate determiner of credibility and of the facts of
the case.

        Unlike the lead opinion, I do not find the distinction between “admissibility” and
“voluntariness” to be merely one of “splitting hairs.” Nor is the distinction one, in my judgment,
that lay jurors are unable to appreciate. I give them more credit than that. Indeed, in our
common parlance, the distinction between “admissibility” and “voluntariness” is clear.5

        But the jurors were not confronted with that distinction in this case. The trial court
merely said that the statement was admissible. It said nothing about voluntariness, about the
basis for its finding of admissibility, or about the credibility the witnesses or the weight to be
given to the statement or any other piece of evidence. It hardly imparted to the jury, as the lead
opinion posits, that it had “already engaged in some manner of extraordinary analysis of the
propriety of the confession and arrived at a conclusion unfavorable to the defendant.” No, it
properly ruled upon the admissibility of the evidence, and left to the jury the evaluation of the
evidence. And in the context of the trial court’s instructions to the jurors, they surely were made
to understand that, irrespective of the court’s determination that the statement was admissible, it
was solely within the purview of the jurors themselves to assess the credibility of the witnesses
and the weight to be given to the statement and the other evidence admitted at trial.

       I concur with the lead opinion that the trial court’s denial of defendant’s postconviction
motion for relief from judgment should be affirmed. However, I would hold that the trial court’s
comments regarding the admissibility of defendant’s statement did not constitute even harmless
error.



                                                              /s/ Mark T. Boonstra




5
  For example, Merriam Webster’s Collegiate Dictionary (11th ed) defines “admissible” in
relevant part as “capable of being allowed or conceded”, and “voluntary” in relevant part as
“proceeding from the will or one’s own choice or consent.”


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