People v. Jackson

• Citation: 319 N.W.2d 613,114 Mich.App. 649
• Decision Date: 28 May 1982
• Docket Number: Docket No. 51655
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Bernard JACKSON, Defendant-Appellant. 114 Mich.App. 649, 319 N.W.2d 613
• Court: Court of Appeal of Michigan (US)

Page 613

319 N.W.2d 613

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Bernard JACKSON, Defendant-Appellant.

Docket No. 51655.

114 Mich.App. 649, 319 N.W.2d 613

Court of Appeals of Michigan.

Submitted Dec. 3, 1981.

Decided April 5, 1982.

Released for Publication May 28, 1982.

[114 MICHAPP 652] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros.[114 MICHAPP 653] Atty., Appeals, and A. George Best, II, Asst. Pros. Atty., for the people.

James Krogsrud, Asst. State Appellate Defender, Detroit, for defendant-appellant on appeal.

Before DANHOF, C. J., and J. H. GILLIS and BRONSON, JJ.

DANHOF, Chief Judge.

Following a jury trial defendant was found guilty of murder in the second degree, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, and conspiracy to commit murder in the second degree, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1) and M.C.L. Sec. 750.317; M.S.A. Sec. 28.549. He was sentenced to two concurrent terms of life imprisonment. Defendant appeals as of right.

Defendant's conviction arose from the shooting death of Rothbe Elwood Perry. Defendant and a codefendant, Mildred Perry, the victim's wife, were tried together by separate juries. Two other codefendants, Michael White and Chare (a/k/a Charles) Knight, had their cases severed from that of defendant.

I

Did the trial court err in finding that defendant's confessions were voluntary and admissible?

The record in the instant case indicates that on July 30, 1979, codefendant Chare Knight confessed to the crime and implicated defendant, who was arrested by the Detroit Police that same day. On July 31, 1979, at approximately 2:00 p. m., defendant was transferred to the custody of the Livonia Police and transported to the Livonia Police Station. At approximately 3:30 p. m. defendant made his first oral confession. Defendant made tape [114 MICHAPP 654] recorded confessions at 5:52 p. m. and again at 8:48 p. m. because of the poor quality of the 5:52 p. m. tape recording. On August 1, 1979, at approximately 10:00 a. m., defendant took a polygraph exam and then made another oral confession. At 12:30 p. m. that same day defendant made a written confession. Defendant was arraigned at 4:30 p. m. on August 1, 1979. Defendant requested an attorney at the time of his arraignment. At approximately 10:00 a. m. on August 2, 1979, defendant made another confession.

A Walker ¹ hearing was held prior to trial. At the conclusion of the hearing, the court found that all of the incriminating statements made by defendant were voluntary and admissible.

Defendant initially argues that the trial court should have suppressed his confessions made prior to arraignment because the delay in arraigning defendant was used to exert psychological pressure and to extract his confessions.

Unnecessary delay between arrest and arraignment is prohibited by M.C.L. Sec. 764.26; M.S.A. Sec. 28.885. However, this statute does not automatically require suppression of an incriminating statement where there has been a delay between arrest and arraignment. People v. Ewing (On Remand), 102 Mich.App. 81, 85, 300 N.W.2d 742 (1980). See also, People v. Hamilton, 359 Mich. 410, 416-417, 102 N.W.2d 738 (1960). Rather, an incriminating statement should only be excluded where the delay in arraignment was used as a tool to extract the statement. People v. White, 392 Mich. 404, 424, 221 [114 MICHAPP 655] N.W.2d 357 (1974); People v. Johnson, 85 Mich.App. 247, 271 N.W.2d 177 (1978).

Upon review of the testimony presented at the Walker hearing, we are not persuaded that the delay between defendant's arrest and arraignment was used to extract a confession. During this time period, each of the questioning sessions was preceded by Miranda ² warnings and, if the testimony of the officers present during the sessions is believed, defendant volunteered his statements. Since we do not possess a definite and firm conviction that the trial court erred in finding that defendant's statements were voluntary and admissible, that determination is affirmed. People v. McGillen # 1, 392 Mich. 251, 257, 220 N.W.2d 677 (1974).

Defendant next argues that his August 2, 1979, confession should have been suppressed because counsel was not present at that confession even though defendant had requested counsel at his arraignment. Defendant acknowledges that Miranda warnings were given before the August 2, 1979, confession but asserts that these warnings were not sufficient to establish a knowing and intelligent waiver.

An almost identical fact situation was addressed in People v. Bladel, 106 Mich.App. 397, 308 N.W.2d 230 (1981). After extensively reviewing the law in this area, Bladel held that the question of a knowledgeable and voluntary waiver after the right to counsel has once been asserted requires a review of the individual circumstances of the particular case, with the prosecution carrying a heavy burden[114 MICHAPP 656] in proving that defendant's waiver was knowledgeable and voluntary. See also, People v. Parker, 84 Mich.App. 447, 269 N.W.2d 635 (1978). Applying this standard to the instant case, we would find that the prosecution has established a knowledgeable and voluntary waiver of defendant's right to counsel on August 2, 1979.

However, the Supreme Court's recent decision in People v. Paintman, 412 Mich. 518, 315 N.W.2d 418 (1982), requires us to reexamine the appropriateness of applying the standards set out in Bladel to the facts of the instant case.

Paintman involved the consolidated appeals of two defendants, Paintman and Conklin. Both Paintman and Conklin requested counsel when questioned by police following their arrest. They again asked for attorneys when arraigned. Paintman's incriminating statement was made, apparently, three days after his arraignment. Conklin's incriminating statement was made nine days after his arrest and initial request for counsel and seven days after his arraignment. Officers were aware at the time Conklin made his statement that he was represented by counsel, but did not contact his attorney. The Court described some of the pressures on the defendants as follows:

"Paintman was an admitted heroin addict with a $60 to $80 daily habit. He suffered withdrawal symptoms in the days preceding his statement. He was the target of derisive comments such as 'baby killer' from both inmates and jail personnel because one of his alleged victims was a young child. There also was testimony about Paintman's suicidal mood. Further * * * Paintman told jail personnel prior to making his statement that he didn't wish to talk with police. That desire was [114 MICHAPP 657] answered by detectives appearing at the jail later in the day.

"Conklin was placed in a line-up the day after his arrest and spent most of his time in solitary confinement following his request for an attorney. He was taken out of the maximum security area after he confessed." Id., 527-528, 315 N.W.2d 418.

Relying on Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), which had a fact situation similar to that in Paintman, the Court held Paintman's and Conklin's statements should have been suppressed since those statements were taken in violation of Miranda. In reaching this decision the Court cited the following passage from Edwards :

" '[A]n accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.' Id. (Emphasis added.)" Paintman, supra, 412 Mich. 525, 315 N.W.2d 418.

The Paintman Court went on to state:

"The Edwards Court emphasized, and we hold, that it is inconsistent with Miranda and its progeny for authorities to instigate a reinterrogation of an accused in custody who has clearly asserted the right to counsel. There is little doubt that both Paintman and Conklin clearly asserted their rights to counsel. In fact, their resistance to questioning continued unabated for a period of days.

"In Conklin's case, authorities were not only aware that he had requested counsel, but that counsel had been appointed and had filed an appearance. In Paintman's case, he first indicated his desire to speak with an attorney in response to a direct question by the chief [114 MICHAPP 658] assistant prosecutor. The prosecutor then left, but police continued to talk with defendant.

"Of what significance is invocation of a cherished constitutional right if it is ignored by the hearer and, in fact, only seems to exacerbate the defendant's plight? As the time gap increases between the embracing of the right and its fulfillment, the certainty of its existence must surely dim." (Footnote deleted.) Paintman, supra, 529-530, 315 N.W.2d 418.

After carefully reviewing the facts of Edwards and Paintman, and the rationale for those decisions, we conclude that they do not require suppression of defendant's August 2, 1979, confession. We think there is an important distinction between asking for an attorney when questioned by police, as was the case in Edwards and Paintman ³, and asking for appointment of an attorney at arraignment, as was the situation in the instant case. This difference was pointed out by the Court in Blasingame v. Estelle, 604 F.2d 893, 895-896 (CA 5, 1979), where it stated:

"[S]ome defendants may well wish to have an attorney to represent them in legal proceedings, yet wish to assist the investigation by talking to an investigating officer without an attorney present. 'While the suspect has an absolute right to terminate station-house interrogation, he also has the prerogative to then and there answer questions, if that be his choice.' Nash [v. Estelle, 597 F.2d 513, 517 (CA 5, 1979)]. To hold that a request for appointment of an attorney at arraignment would...