People v. Hoffman

• Decision Date: 02 May 1994
• Docket Number: Docket No. 120228
• Citation: 205 Mich.App. 1,518 N.W.2d 817
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Horace HOFFMAN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 817

518 N.W.2d 817

205 Mich.App. 1

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Horace HOFFMAN, Defendant-Appellant.

Docket No. 120228 Court of Appeals of Michigan.

Submitted Sept. 7, 1993, at Detroit.

Decided May 2, 1994, at 9:35 a.m.

Released for Publication June 30, 1994.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Donald E. Martin, Pros. Atty., and Guy L. Sweet, Asst. Pros. Atty., for the People.

State Appellate Defender by Chari Grove, for defendant on appeal.

Before HOOD, P.J., and CORRIGAN and LATREILLE, ^* JJ.

CORRIGAN, Judge.

Defendant appeals as of right his conviction of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549, and his sentence to a term of imprisonment of thirty to fifty years. We affirm.

Following an initial police investigation in 1984 and an intensive police and grand jury investigation four years later, on November 3, 1988, the Ingham County grand juror indicted defendant and codefendant Luciano Lino ¹ on one count of open murder in the February 25, 1984, stabbing death of Douglas Perry in Lansing. After a preliminary examination, both defendants were bound over for trial as charged. Defendant and codefendant Lino were then tried before separate juries and convicted of second-degree murder in 1989, following a three-week trial.

I. ADMISSION OF GRAND JURY TESTIMONY

A. Miranda Warnings

Although defendant has raised eleven issues on appeal, only one is jurisprudentially significant. Defendant, a state prison inmate incarcerated on unrelated charges, contends that a target ² who is subpoenaed to testify before a grand juror must be advised of Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 [1966] before he may be questioned. The subpoena to defendant recited various rights, including a right to appointed counsel. Before commencing questioning, the prosecutor gave defendant explicit Miranda-style warnings, but never orally advised defendant that counsel would be appointed if defendant was indigent. Defendant orally acknowledged receipt of the written advice of rights and stated that he understood those rights.

It is undisputed that the prosecutor advised defendant before he testified:

Q. Mr. Hoffman, you have been served with a subpoena to be here today?

A. Yes sir, I have it right here.

Q. Do you have it with you? Here, do you want me to help you with that?

The Grand Juror: Just put it in front of him.

Q. Did you have an opportunity to read the bottom of that subpoena about your rights?

A. Yes, sir.

Q. Do you understand your rights?

A. Yes, sir.

Q. Would you like (sic) have an attorney with you here when you testify today?

A. Is that right?

Q. Yes, sir.

A. No, sir.

Q. You sure about that?

A. Yes, sir.

Q. If there comes a time when you feel you need an attorney, will you tell me that?

A. Yes, sir.

* * * * * *

Q. I am going to ask you a series of questions about the Doug Perry murder. You are the focus.

A. I understand that.

Q. Of our investigation: you have the right to an attorney here with you?

A. Yes, sir, I know that.

Q. I would encourage you to have one, if you want one.

A. I have no involvement in this case. I don't see where I need to have--and where I need--where I have need for an attorney.

Q. Well, anything that you say can and will be used against you in a court of law.

A. I realize that.

Q. You have the right under the Fifth Amendment not to answer the questions that I will put to you. ³

A. I know all of this.

Defendant then admitted certain facts, which the prosecutor sought to introduce against him in redacted form at trial. Defense counsel objected to the prosecutor's failure to give defendant the Miranda warnings, specifically oral advice of the right to appointed counsel. Without deciding precisely which rights were implicated, the trial court found that defendant had been sufficiently apprised of his rights to allow admission of the statement.

Because defendant has advanced no argument in reliance on the Michigan constitution or statutes, we confine our analysis to what the United States Constitution dictates. Overlooking nearly three decades of case law interpreting Miranda, defendant relies only on Miranda v. Arizona, supra, and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), for the duty to administer Miranda warnings in the grand jury. Defendant has not posed the more difficult question whether some form of constitutionally sufficient Miranda-type warnings is required. We conclude that the federal constitution does not require the administration of Miranda warnings, including the right of appointed counsel, before questioning of a target of a grand jury inquiry. Assuming in the alternative that some type of Miranda warnings is necessary, we conclude that the written and oral warnings, together with defendant's oral acknowledgment that he understood his rights, sufficed to permit admission of defendant's subsequent statements.

Miranda requires that before custodial interrogation, an individual must be apprised of (1) the right to remain silent, and (2) the accompanying explanation that anything said can and will be used against him in court, (3) the right to consult with an attorney and to have one present during interrogation, and (4) the right to appointed counsel before questioning, if he cannot afford counsel.

We conclude that the federal constitution does not require that Miranda warnings be administered before the questioning of a target of a grand jury inquiry. Grand jury witnesses are not entitled under the federal constitution to "target or potential defendant warnings." United States v. Washington, 431 U.S. 181, 186, 190-191, 97 S.Ct. 1814, 1818, 1820-21, 52 L.Ed.2d 238 (1977). Earlier, United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976) (plurality opinion) recognized that judicial inquiry in a grand jury setting does not bear the inherently coercive characteristics of incommunicado police interrogation in the stationhouse found intolerable in Miranda. Mandujano rejected the argument that a target is entitled to Miranda warnings, which "were aimed at the evils seen by the Court as endemic to police interrogation of a person in custody." ⁴ 425 U.S. at 579, 96 S.Ct. at 1777-78. As the Mandujano plurality noted:

[M]any official investigations, such as grand jury questioning, take place in a setting wholly different from custodial police interrogation. Indeed, the Court's opinion in Miranda reveals a focus on what was seen as police "coercion" derived from "factual studies [relating to] police violence and the 'third degree' ... physical brutality--beating, hanging, whipping--and to sustained and protracted questioning incommunicado in order to extort confessions...." To extend these concepts to questioning before a grand jury inquiring into criminal activity under the guidance of a judge is an extravagant expansion never remotely contemplated by this Court in Miranda; the dynamics of constitutional interpretation do not compel constant extension of every doctrine announced by the Court.

The marked contrasts between a grand jury investigation and custodial interrogation have been commented on by the Court from time to time. Mr. Justice Marshall observed that the broad coercive powers of a grand jury are justified, because "in contrast to the police--it is not likely that [the grand jury] will abuse those powers." [Id. at 579-580, 96 S.Ct. at 1778; citations omitted.]

Later cases also suggest that Miranda does not govern proceedings in the grand jury. Miranda is confined to cases involving custodial interrogation in a police-dominated atmosphere. Miranda must be strictly enforced, but only in "those types of situations in which the concerns that powered the decision are implicated." Berkemer v. McCarty, 468 U.S. 420, 437, 104 S.Ct. 3138, 3149, 82 L.Ed.2d 317 (1984). These situations share two irreducible elements: custody and official interrogation. Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990); United States v. Kilgroe, 959 F.2d 802, 804 (CA 9, 1992). In concluding that a subpoenaed witness who is also a putative defendant need not receive Miranda warnings at a criminal trial, the Kilgroe court explained:

Although the courtroom is the paradigmatic setting for invoking the right against compelled self-incrimination, it is not the type of setting that would justify invoking Miranda's prophylactic rule. The Miranda Court itself recognized that "the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery." Miranda, 384 U.S. at 461, 86 S.Ct. at 1621. Nor does the "obligation to appear and testify truthfully" created by subpoena "constitute compulsion to give incriminating testimony" of the sort that implicates Miranda's policies. United States v. Jenkins, 785 F.2d 1387, 1393 (CA 9, 1986). Unlike custodial interrogation--which usually takes place without warning and, therefore, without the chance for reflection or legal advice--the subpoena gives the witness the opportunity in advance to obtain whatever counsel he deems appropriate and carefully contemplate his testimony. He remains free, of course, to refuse to answer questions that would incriminate him.

Defendant was indisputably in custody, although on unrelated criminal convictions. He was also compelled to appear for official interrogation. He was not, however, subjected to police interrogation. This distinction is critical. As Professor Yale Kamisar has written trenchantly:

It is the impact on the suspect of the interplay between police interrogation and police custody--each condition reinforcing the pressures and anxieties produced by the other--that, as the Miranda Court correctly discerned, makes "custodial police interrogation" so coercive. It is the...