People v. Lewis, Docket No. 14345

• Decision Date: 24 May 1973
• Docket Number: No. 3,Docket No. 14345,3
• Citation: 209 N.W.2d 450,47 Mich.App. 450
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Wayne LEWIS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 450

209 N.W.2d 450

47 Mich.App. 450

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Wayne LEWIS, Defendant-Appellant.

Docket No. 14345.

Court of Appeals of Michigan, Division No. 3.

May 24, 1973.

Released for Publication Aug. 6, 1973.

Joseph J. Jerkins, Kalamazoo, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William C. Buhl, Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and T. M. BURNS and CHURCHILL ^*, JJ.

T. M. BURNS, Judge.

Defendant was convicted by a jury of breaking and entering with intent to commit a larceny. M.C.L.A. § 750.110; M.S.A. § 28.305. He was sentenced to from 1 1/2 to 10 years imprisonment and appeals.

At approximately 2:00 a.m. on September 18, 1971, the defendant was arrested at the scene of a breaking and entering. Defendant was 17 years old and had a tenth grade education. He was conveyed to the State Police post in Paw Paw, Michigan where after an hour and a half of questioning, he signed an inculpatory statement at 6:30 a.m.

Prior to trial, defense counsel moved to have the statement suppressed from evidence. A Walker hearing was held to determine the voluntariness of the statement. At the hearing defendant took the stand and testified that before the interrogation began he was advised of his constitutional rights, that he asked the officers whether it was possible to obtain an attorney at that hour and that the officers replied it was not possible. Defendant then told the officers to 'forget it' and the questioning began. Two police officers who were present when defendant was questioned testified that defendant did not request the assistance of an attorney at any time.

After considering the evidence presented at the Walker hearing, the trial court found that:

'The evidence discloses, there is no question about it, that the defendant was again given all of his constitutional rights. There is no claim that he didn't understand what his rights were. He asked if it were possible to get an attorney at that time, and when told he could not, he said, 'Forget it', and went ahead with the statement which certainly indicates a clear waiver of the right to have an attorney present at the time.'

Accordingly, the trial court denied defendant's motion to suppress the statement from evidence. ¹ The statement was subsequently admitted into evidence at trial.

In Miranda v. Arizona, 384 U.S. 436, 444--445, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706--707 (1966), the United States Supreme Court held that where, as here, a person has been taken into custody:

'Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.'

The Court continued more particularly with respect to the right to counsel:

'The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he Indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.' (Emphasis supplied.)

Applying the doctrine of Miranda to the case at hand, it is readily apparent that the defendant, by inquiring as to whether it was possible to obtain an attorney at that early hour, sufficiently indicated a desire to consult an attorney before speaking. We are not unmindful that the police may have acted innocently by stating that an...