People v. Bender

• Citation: 452 Mich. 594,551 N.W.2d 71
• Decision Date: 23 July 1996
• Docket Number: Docket No. 102520,No. 7,7
• Parties: , 65 USLW 2139 PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jamieson Todd BENDER and Scott Alexander Zeigler, Defendants-Appellees. Calendar
• Court: Supreme Court of Michigan

Page 71

551 N.W.2d 71

452 Mich. 594, 65 USLW 2139

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jamieson Todd BENDER and Scott Alexander Zeigler,

Defendants-Appellees.

Docket No. 102520.

Calendar No. 7.

Supreme Court of Michigan.

Argued Jan. 10, 1996.

Decided July 23, 1996.

[452 Mich. 596] Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Kathryn G. Barnes, Assistant Prosecuting Attorney, Pontiac, for people.

Miro, Miro & Weiner by Matthew F. Leitman, and Condit, McGarry & Schloff, P.C. by Alexander B. McGarry, Bloomfield Hills, for Bender.

Benjamin & Goldfine by Allan Z. Goldfine, Southfield, for Zeigler.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, Detroit, Amici Curiae for Wayne County Prosecutor.

Paul J. Denenfeld, David A. Moran, Detroit, Amici Curiae, for American Civil Liberties Union Fund of Michigan and Criminal Defense Attorneys of Michigan.

Michael D. Thomas, President, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, [452 Mich. 597] Chief, Research, Training and Appeals, Saginaw, Amici Curiae, for Prosecuting Attorneys Association of Michigan.

OPINION

MICHAEL F. CAVANAGH, Justice.

In this case, we are asked to consider whether, under Michigan law, a suspect's waiver of his rights to remain silent and to counsel is valid when the police fail to inform him, before he gives a statement, that a specific, retained attorney is immediately available to consult with him. We hold that Const. 1963, art. 1, § 17 requires the police to inform the suspect that a retained attorney is immediately available to consult with him, and failure to so inform him before he confesses per se precludes a knowing and intelligent waiver of his rights to remain silent and to counsel. ¹

I. Facts and Procedural History

During the early morning hours of August 2, 1991, bicycles were taken from two separate residences, and a sink was removed from a house that was under construction. Bloomfield Township Police Officer Steven Currie arrived at one of the locations at 3:33 a.m. A canine unit arrived, and at approximately 4:00 a.m. defendant Jamieson Bender was arrested by a canine handler. He was placed in a holding cell at approximately 4:30 a.m.

Officer Currie and Sergeant DeWolfe went to defendant Scott Zeigler's house between 7:00 and 8:00 a.m. Zeigler let the officers into the house and told them that he had loaned his car to Bender, that he knew where his car was located, that he and Bender had taken a couple of bicycles, and that they had taken a sink from a house that was under construction. Zeigler was arrested and then showed Officer Currie where the stolen property was located.

Officer Currie testified that he arrested Zeigler about 8:00 or 8:30 a.m. However, Zeigler's mother, Ruth, who was at the house at the time that Zeigler was arrested, stated that she had called attorney Allan Goldfine at 6:45 a.m. Mr. Goldfine agreed to represent Zeigler and told her to go to the police station and tell Zeigler not to talk to anyone until Zeigler first talked to him. Thus, she went to the police station at 7:15 a.m., talked to Officer Currie, and asked to see her son. ² When he refused, she told Officer Currie that she had a message for her son from his attorney. Officer Currie, however, told Ruth that she could not see her son, that she could not get a message to him, and that she could not stay and talk to the detective. ³

A police officer called Bender's mother, Kathleen, about 5:30 a.m. to inform her of her son's arrest. She then contacted Bender's father, Phillip, who was residing out of state. Phillip called the police station at 7:00 a.m. and asked to speak with his son. When the officer refused, Phillip told him that he was going to get counsel for his son immediately. He then called attorney Elizabeth Pezzetti who agreed to represent Bender.

Ms. Pezzetti called the police station at approximately 9:00 a.m. and asked to speak with Bender and the detective in charge as soon as possible. The officer who answered the telephone told Ms. Pezzetti that Bender was being held, but that his paperwork had not been completed and that she would tell the detective that Ms. Pezzetti wished to speak with him and Bender. The detective did not return her call, so Ms. Pezzetti called the station again at 10:00 a.m., and was also unsuccessful. Detective Genereaux finally returned Ms. Pezzetti's call between 11:00 and 11:30 a.m. He stated that he had talked to both defendants, that they had been cooperative, and that they would be released without bond to their parents. Ms. Pezzetti stated that had she been given the opportunity to speak with Bender, she would have told him not to talk to anyone and that she would be at the station.

Without informing either defendant of his attorney's attempted contacts, Detective Genereaux interrogated both defendants. Zeigler was interrogated first. He read aloud and signed a Miranda ⁴-warnings form at 9:08 a.m., and gave his statement during the subsequent thirty- to forty-minute interview. Next, Bender was interviewed and also read aloud and signed a Miranda-warnings form at 9:50 a.m. His interview also lasted between thirty and forty minutes.

Each defendant testified regarding his statement. Zeigler was twenty years old, had no prior contacts with the police, and was a college student. On the night in question, he had been drinking beer, although Detective Genereaux stated that he saw no signs of intoxication. Zeigler stated that he was not given the opportunity to make a telephone call. He was not offered food or water, and he had not slept for about twenty-six hours.

Bender was also twenty years old, had no prior contacts with the police, and was attending college. He had also been drinking that night. He was not given food or water and had not slept for about twenty-five hours. When he was being fingerprinted, he asked to make a telephone call, but he was told that he could make a telephone call later. He was never given that opportunity. Bender testified that he thought he would have to remain in a holding cell if he requested an attorney.

It is undisputed that Bender was never informed by the police that Ms. Pezzetti had attempted to call him and had been retained for him. It is also undisputed that Zeigler's mother was not permitted to see her son and that no message was given to Zeigler that she had retained an attorney for him. Both defendants stated that they understood the Miranda-warnings form, and neither requested counsel before or during the interviews.

On the basis of the evidence given at the Walker hearing, the trial court ruled that the conduct of the police had not been reprehensible and that each defendant had made a voluntary statement with full knowledge of his Miranda rights. However, the trial court ruled that the postarrest statements had to be suppressed because the defendants were not informed that counsel had been retained for them before the statements were given and that the statements were, therefore, made without a knowing waiver of the right to counsel. The trial court made this ruling on the basis of People v. Wright, 441 Mich. 140, 490 N.W.2d 351 (1992).

On appeal, the Court of Appeals affirmed. 208 Mich.App. 221, 232, 527 N.W.2d 66 (1994). The Court of Appeals stated:

[W]e extend the rights afforded under Const 1963, art 1, § 17 to include information of retained counsel's efforts to contact a suspect. We believe that such a protection is necessary to allow suspects in custody to make a knowing, intelligent, and voluntary waiver of their right to counsel and right to remain silent. Therefore, the trial court did not err in suppressing defendants' postarrest statements where the police failed to inform them that counsel had been retained and of counsel's attempts to contact them.

We agree with the analysis of the Court of Appeals and, therefore, affirm its holding that the suppression of both defendants' statements was proper. II. Waiver of Right to Counsel

The Fifth and Fourteenth Amendments of the United States Constitution protect a defendant's federal rights to remain silent and to counsel. ⁵ Additionally, the Michigan Constitution protects a defendant's corresponding state rights. Const. 1963, art. 1, § 17. ⁶

In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." While the Court in Miranda required procedural safeguards, it also recognized that the defendant may waive his rights to remain silent and to counsel. Thus, it also required that the waiver be made voluntarily, knowingly, and intelligently. Id., citing Escobedo v. Illinois, 378 U.S. 478, 490, n. 14, 84 S.Ct. 1758, 1764-1765, 12 L.Ed.2d 977 (1964), and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 ALR 357 (1938). See also People v. Paintman, 412 Mich. 518, 315 N.W.2d 418 (1982).

Whether the waiver is valid involves a two-part inquiry. First, the waiver must be a "product of a free and deliberate choice rather than intimidation, coercion, or deception." Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140-1141, 89 L.Ed.2d 410 (1986). Second, "the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Id. ⁷

In the instant cases, neither defendant claims that procedural safeguards were not heeded. In fact, both defendants signed a...