People v. Giuchici

• Citation: 324 N.W.2d 593,118 Mich.App. 252
• Decision Date: 07 October 1982
• Docket Number: Docket No. 55298
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Anthony GIUCHICI, Defendant-Appellant. 118 Mich.App. 252, 324 N.W.2d 593
• Court: Court of Appeal of Michigan (US)

Page 593

324 N.W.2d 593

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Anthony GIUCHICI, Defendant-Appellant.

Docket No. 55298.

118 Mich.App. 252, 324 N.W.2d 593

Court of Appeals of Michigan.

Submitted May 12, 1982.

Decided July 20, 1982.

Released for Publication Oct. 7, 1982.

[118 MICHAPP 254] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Earl H. Morgan, Jr., Pros. Atty. and Nick O. Holowka, Chief Asst. Pros. Atty., for the People.

Taylor, Carter, Butterfield, Riseman, Clark & Howell, P. C. (by David J. Churchill), for defendant on appeal.

[118 MICHAPP 255] Before ALLEN, P. J., and CYNAR and C. J. FALAHEE, ^* JJ.

PER CURIAM.

Defendant appeals as of right his conviction for first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, upon a jury's verdict of guilty but mentally ill. He was sentenced to life imprisonment.

The instant action arises out of the February 24, 1979, shooting death of defendant's father. On appeal defendant raises numerous issues, only some of which merit discussion and none of which merit reversal.

I

The first issue raised by defendant involves whether the trial court erred in refusing to suppress incriminating statements made by defendant to the police while defendant was in custody.

Prior to trial a hearing was held to determine whether defendant's confession should be suppressed on the grounds that it was involuntary and made in contravention of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966).

At that hearing it was established that Detective Gary Parks brought defendant into his office at the Lapeer County Jail at about 1:10 a. m. on February 25, 1979. Detective Parks informed defendant that defendant's father was dead and that defendant was a suspect. Defendant also was handed a form labeled "Miranda warning". Detective Parks read defendant each of the Miranda warnings listed on the form and had defendant [118 MICHAPP 256] give a verbal answer and write out an answer on the form. Question # 2 on the "waiver" portion of the form read, "Do you want to talk to a lawyer before any questions?" Next to this question defendant wrote "yesan no". Detective Parks asked defendant to clarify his answer to this question--did he or did he not want a lawyer. In response, according to Detective Parks, defendant crossed out the word "yesan".

For his part, defendant testified that he wrote "yesan no" on the form because he was willing to talk about some questions and unwilling to talk about others without having a lawyer present. According to defendant, Detective Parks told him it would be better if he talked before seeing a lawyer. Defendant also asserted that it was Detective Parks who crossed out the word "yesan" on the form.

After completing the "Miranda warning" form defendant made an exculpatory statement. He was placed in a cell and spoken to again at 9:50 a. m. on February 25, 1979. At about 11:30 a.m., defendant was given a polygraph examination and again given the Miranda warnings. At approximately 2 p. m. defendant made a confession. Detective Parks, apparently, did not give defendant Miranda warnings before taking this written statement, but the waiver was incorporated into the written statement, acknowledged as read and signed by defendant.

The trial court refused to suppress defendant's confession on the basis that when defendant wrote "yesan no" it was not an answer or, at best, was an ambiguous answer requiring clarification. The trial court held that Detective Parks acted properly[118 MICHAPP 257] in instructing defendant to answer the question whether he wanted a lawyer and found that Detective Parks had made no inducement or threats to defendant. The court found a knowing and voluntary waiver by defendant.

On appeal, defendant argues that he did not make a voluntary waiver of his right to counsel and that all questioning by police should have ceased, until an attorney was present, after defendant answered "yesan no" to the question of whether he wanted to speak to an attorney.

In support of his position defendant cites People ex rel. Wayne Prosecutor v. Recorder's Court Judge, 79 Mich.App. 495, 261 N.W.2d 63 (1977), cert. den. 436 U.S. 958, 98 S.Ct. 3073, 57 L.Ed.2d 1123 (1978), People v. Brannan, 64 Mich.App. 374, 236 N.W.2d 80 (1975), rev'd 406 Mich. 104, 276 N.W.2d 14 (1979), People v. Lewis, 47 Mich.App. 450, 209 N.W.2d 450 (1973), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

Our review of the cited cases indicates that they are all distinguishable from the instant case in that in the cited cases the defendants either specifically requested counsel, and counsel was not made available, or the defendants sufficiently expressed a desire for counsel by asking questions concerning either the availability of counsel or the advisability of procuring counsel.

The critical distinction between the instant case and those relied on by defendant is that in the instant case defendant gave an ambiguous response to the question of whether he wanted counsel and, without attempting to coerce defendant into a waiver, the questioning officer attempted to clarify defendant's response. This was the proper [118 MICHAPP 258] procedure to follow. In this regard we find the following analysis by the Court in Nash v. Estelle, 597 F.2d 513, 517-518 (CA 5, 1979), persuasive:

"When, as in the case at bar, a desire for immediate talk clearly appears from the suspect's words and conduct, but he also states he wants a lawyer (i.e., 'I would like to have a lawyer, but I would rather talk to you'), it is sound and fully constitutional police practice to clarify the course the suspect elects to choose. The precedent of Priest [United States v. Priest, 409 F.2d 491 (CA 5, 1979) ], does not bar this clarification.

"This is not to say that an interrogating officer may utilize the guise of clarification as a subterfuge for coercion or intimidation. As the Supreme Court reiterated in Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977), in examining an alleged waiver of the right to counsel 'courts indulge in every reasonable presumption against waiver.' Miranda stated that a suspect may waive effectuation of his rights but only if 'the waiver is made voluntarily, knowingly and intelligently.' 384 U.S. at 444, 86 S.Ct. at 1612. The critical factor is whether a review of the whole event discloses that the interviewing agent has impinged on the exercise of the suspect's continuing option to cut off the interview."

Based on the foregoing, we find that the trial court did not err in finding a voluntary, knowing and intelligent waiver of defendant's Miranda rights. See also, People v. McGillen # 1, 392 Mich. 251, 220 N.W.2d 677 (1974).

II

Defendant next argues that his confession should have been suppressed in that it was obtained as a result of an arrest made without probable cause. Our review of the record indicates that this argument is without merit. See People v. [118 MICHAPP 259] Summers, 407 Mich. 432, 286 N.W.2d 226 (1979), rev'd on other grounds 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). See also, People v. Kyser, 106 Mich.App. 216, 307 N.W.2d 447 (1981).

III

Defendant also argues that the trial court erred in not suppressing two incriminating statements made by defendant in response to police questioning outside the presence of defendant's lawyer.

The first statement the trial court refused to suppress was made at approximately 9:00 a. m. on February 26, 1979. Deputy Clark Arnold took defendant to the booking room to take a set of defendant's fingerprints. Deputy Arnold informed defendant why he had been brought to the booking room. Defendant stated, "It was like a bad dream." Deputy Arnold responded, "What's like a bad dream?" Defendant replied, "To shoot a man six times and see him still try to get up." Deputy Arnold asked no further questions.

The second statement the trial court refused to suppress was one made to Deputy Arthur White, Jr., while he was driving defendant from district court to jail. Defendant said something while Deputy White was not paying attention. Deputy White replied, "What did you say?" To this defendant replied, "How would you feel if you were in my situation?" Deputy White responded, "I'd probably feel pretty depressed." At this point defendant stated that he "didn't mean to reload the gun but he was afraid his Dad was going to get him".

The trial court refused to suppress defendant's [118 MICHAPP 260] statements on the basis that they were purely voluntary and unsolicited.

Relying, primarily, on Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), defendant argues that his statements to Deputy Arnold and Deputy White should have been suppressed because they were made in response to questioning by police which was reasonably likely to elicit an incriminating response. We disagree.

In Miranda the Supreme Court held that the prosecution may not use statements stemming from a custodial "interrogation" without demonstrating the use of procedural safeguards to secure the privilege against self-incrimination. In Innis, the Supreme Court defined the term "interrogation" as used in Miranda:

"We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an...