People v. Kowalski

• Decision Date: 26 June 1998
• Docket Number: Docket No. 190352
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stanley KOWALSKI, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 613

584 N.W.2d 613

230 Mich.App. 464

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stanley KOWALSKI, Defendant-Appellant.

Docket No. 190352.

Court of Appeals of Michigan.

Submitted Oct. 8, 1997, at Detroit.

Decided June 26, 1998, at 9:05 a.m.

Released for Publication Sept. 29, 1998.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Richard H. Browne, Acting Chief, Appellate Division, and Thomas Richards, Assistant Prosecuting Attorney, for People.

State Appellate Defender by Peter Jon Van Hoek, for Defendant-Appellant on appeal.

Before CORRIGAN, C.J., and RICHARD ALLEN GRIFFIN and HOEKSTRA, JJ.

PER CURIAM.

On December 18, 1975, defendant was convicted by a jury of first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548. He was sentenced on January 22, 1976, to life imprisonment. He now appeals by leave granted from an order denying his motion for a new trial. We affirm.

I

This case has an unusual procedural history. Defendant's conviction arises from the November 30, 1974, shooting deaths of two gasoline station attendants. At trial, the prosecutor introduced a police confession in which defendant admitted that he and a codefendant, Ronald Sands, shot the two attendants during a robbery. Codefendant Sands was tried separately and also found guilty of first-degree murder. ¹

The pertinent facts surrounding defendant's police confession are not in dispute. ² On the morning of November 30, 1974, the police questioned defendant and codefendant Sands about a shooting that occurred earlier that morning at a Tulsa gasoline station. Sands was a former employee of the gasoline station and had been observed in the vicinity of the gasoline station in the company of defendant. Defendant was advised of his Miranda ³ rights, and he denied any knowledge of the offense, following which he was released. Later that day, defendant and codefendant Sands returned to the police station for further questioning.

At 2:13 p.m., an assistant prosecutor, Richard Thompson, interviewed defendant in the presence of Detective Robert Lister. After being advised of his Miranda rights, defendant asked to speak to an attorney. The questioning immediately ceased, and Thompson informed defendant that they would not talk to him until he had an attorney. Defendant was then taken to another office and left alone. He had access to a telephone, but was not free to leave. While waiting in the office, defendant used the telephone to call a friend to ask for assistance in locating an attorney. The friend apparently informed defendant that he would call back, but defendant never received a return telephone call. In the meantime, the police obtained a statement from codefendant Sands describing what occurred at the Tulsa gasoline station.

Shortly before 3:40 p.m., Detective Lister returned to the office where defendant was located, informed defendant that codefendant Sands had given a statement, and asked him if he "would still like to talk to an attorney." Lister did not discuss the substance of Sands' statement with defendant or mention what effect, if any, the statement might have on defendant's case. Defendant told Lister, "if Ron [Sands] didn't want an attorney, neither did he and he would give a statement." Lister then contacted Thompson, telling him that defendant was now willing to waive his rights and give a statement. Thompson returned and conducted a second recorded interview. Before asking any questions about the offense, Thompson once again advised defendant of his Miranda rights and inquired specifically whether he wished to speak to an attorney. Defendant told Thompson that he understood his rights and was now willing to waive his rights and give a statement. ⁴ Defendant thereafter told Thompson that he and codefendant Sands shot the two gasoline station attendants during a robbery. Defendant stated that one of the attendants had "smarted off" to Sands, whereupon Sands shot the attendant with a rifle. Sands then handed the rifle to defendant, and defendant reloaded the rifle and shot the other attendant.

Defendant brought a pretrial motion challenging the admissibility of his confession, maintaining that it was involuntary and obtained in violation of his right to counsel. Following an evidentiary hearing, the trial court denied the motion to suppress, ruling:

Mr. Kowalski did exercise his rights. It is the view of this Court after reviewing all of the physical circumstances that occurred after that, that he decided on his own to waive these rights, and I can find no coercion either implied or psychological or otherwise that caused him to do so. It appears to this Court it was a decision made entirely by himself without any outside or undue pressure.

On March 11, 1976, defendant's appointed appellate attorney timely filed a motion for a new trial, alleging error in the denial of the pretrial motion to suppress defendant's confession. Although a hearing on the motion was scheduled for March 24, 1976, the record indicates that the matter was adjourned without a new hearing date being set. For reasons that are unclear, no further action was taken on the motion, nor was a decision on the motion ever entered.

More than fifteen years later, in 1991, defendant wrote a letter to the court inquiring about the status of his case. The letter mentioned several unsuccessful attempts by defendant to contact his appointed attorney regarding the case during the preceding fifteen years. Because the judge who presided over defendant's 1975 suppression hearing and trial had retired, the matter was assigned to a new judge, who thereupon appointed a new attorney to represent defendant. Defendant's new attorney subsequently filed a "supplement" to the 1976 motion for a new trial, taking the position that the 1976 motion was "still pending" because it had never been withdrawn or otherwise resolved. The supplemental motion alleged that defendant's police confession was obtained in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Although Edwards was decided more than four years after defendant was convicted, it was given limited retroactive effect in Shea v. Louisiana, 470 U.S. 51, 59, 105 S.Ct. 1065, 84 L.Ed.2d 38 (1985), to cases that were pending on direct review at the time it was decided. Defense counsel took the position that defendant's case was pending on direct review at the time Edwards was decided because the issue of the admissibility of defendant's police confession had been raised in a timely filed motion for a new trial, which motion was never withdrawn or otherwise resolved.

After a series of delays that are not relevant to this appeal, the trial court issued a decision on May 4, 1995, denying defendant's motion for a new trial. In doing so, the trial court found that the 1976 motion for a new trial had been abandoned and, therefore, Edwards was inapplicable to defendant's case. The trial court then proceeded to address the admissibility of defendant's police confession under the law in effect at the time of defendant's suppression hearing and concluded that the confession was properly obtained. This appeal followed.

II

Defendant argues that the trial court should have suppressed his police confession because it was obtained in violation of his right to counsel.

On appeal from a ruling on a motion to suppress evidence of a confession, deference must be given to the trial court's findings. People v. Cheatham, 453 Mich. 1, 29-30 (Boyle, J.), 44 (Weaver, J.), 551 N.W.2d 355 (1996). We review the record de novo but will not disturb the trial court's factual findings unless the findings are clearly erroneous. Id.

A

We will first address whether defendant's police confession was properly admitted under the law in effect at the time of defendant's suppression hearing and trial.

We begin our analysis with the United States Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In Miranda, the Supreme Court established a set of prophylactic rules to safeguard a suspect's Fifth Amendment privilege against compulsory self-incrimination. The Court held that a suspect in police custody must be informed specifically of the suspect's right to remain silent and to have an attorney present before being questioned. Id. at 479, 86 S.Ct. 1602. The Court further held that "[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present." Id. at 474, 86 S.Ct. 1602. Furthermore, "[i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Id. at 475, 86 S.Ct. 1602.

The Miranda decision did not state under what circumstances, if any, a resumption of questioning was permitted after a person in custody invoked the rights under Miranda. Moreover, the law in this area remained unsettled in the immediate aftermath of the Miranda decision. At defendant's suppression hearing, the trial court relied on the decision of the Sixth Circuit Court of Appeals in Hill v. Whealon, 490 F.2d 629 (C.A.6, 1974), in concluding that defendant's confession was properly obtained. We agree thatHill supports the trial court's decision to admit defendant's confession.

In Hill, supra at 632, the police immediately ceased interrogating the defendant after the defendant stated that he did not wish to waive his rights. Approximately ninety minutes later another officer approached the defendant, informed him that a codefendant had made a statement, and inquired of the defendant whether he had anything he wished to say. Id. Without "any further prompting, cajoling, harassment, threats or inducements," the defendant said that he wanted to...