People v. Matthews

• Decision Date: 25 March 1970
• Docket Number: No. 1,Docket No. 6969,1
• Citation: 22 Mich.App. 619,178 N.W.2d 94
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry MATTHEWS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 94

178 N.W.2d 94

22 Mich.App. 619

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry MATTHEWS, Defendant-Appellant.

Docket No. 6969.

Court of Appeals of Michigan, Division No. 1.

March 25, 1970.

Released for Publication June 26, 1970.

Leave to Appeal Denied Sept. 22, 1970.

Carl Levin, Arthur J. Tarnow, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Patricia J. Pernick, Asst. Pros. Atty., for appellee.

Before DANHOF, P.J., and FITZGERALD and McGREGOR, JJ.

DANHOF, Judge.

Following a nonjury trial, defendant was convicted of robbery unarmed, C.L.1948, § 750.530 (Stat.Ann.1954 Rev. § 28.798). On appeal defendant makes numerous allegations of error, the principal one being that he did not specifically waive his right to counsel prior to and during custodial interrogation.

The prosecution accepted the statement of facts presented in the defendant's brief as follows:

'On July 9, 1967, at 8:15 a.m., defendant, who had been arrested the previous day for allegedly snatching a purse from Gladys Pritchard was allegedly informed of his constitutional rights by Detective James Harkness.

"Q What did you say to him?

"A That he had a right to remain silent; that anything he said may be used against him; and he didn't have to answer any questions or make any statement; any statement he may make may be used against him in a Court of Law. I advised him that he had a right to an attorney present before he answered any questions or made any statement, and the attorney could be with him while he made any statement or answered any questions. I advised him that if he could not afford an attorney one would be appointed by the Court prior to any questioning. I advised him that he can at any time exercise his rights and not make any statement or answer any questions.

"Q Did he sign any form at any time?

"A He did. He indicated that he did not wish to make any statement at that time, and he signed it * * *' (T. 62, 63)

'At 3:45 p.m. on July 9, 1967, after defendant allegedly told the doorman at the precinct that he wished to see Detective Harkness, the detective allegedly again advised defendant of his constitutional rights, as follows:

"Q After talking to the doorman, what did you do?

"A I again advised Larry Matthews of his Constitutional rights at 3:45 p.m. I advised him of the same--do you want me to read it again?

"Q No. Did you follow the same procedure in the same general language that you did the first time?

"A I did.

"Q At that time was he asked to sign anything?

"A He was.

"Q And did he sign?

"A He signed his name, yes.

"Q He signed his name on a form?

"A He did, indicating that he understood his Constitutional rights, and further agreed that he wanted to make a statement. (T. 66)

"Q The second time did you tell him that he had a right to have his counsel there, now that he is going to make a statement; 'Do you want your lawyer here?' Did you put it that way?

"A I read the following--

"Q Just answer my question, officer. Did you say to this defendant--

"A I said he could have an attorney present when he made a statement.

"Q Did you do that the second time?

"A I did.' (T. 70)

'Over the objection of defense counsel (T. 63, 67--69, 72), the court ruled that the statement was voluntary (T. 73).

'The statement allegedly made by Defendant Matthews was then read into evidence (T. 73). It placed defendant at the scene of the purse snatching with the other defendant James Kent and placed the responsibility on James Kent. It conflicted with Defendant Matthews' testimony at trial at which he denied being present at all (T. 82--94).

'Defendant was found guilty of robbery unarmed and was sentenced to from 7 or 9 (sic) to 15 years in prison.

'At the time of sentencing, the following statements were made by the court:

"THE COURT: Oh, he has a terrible record. He's seventeen years old now; and I imagine that his record goes back to 1960; and you know that must make him ten years old; and he's been involved in criminal activity since the age of ten; * * *' (Transcript of Sentence, p. 3)

"Now, let me just read you some of the offenses, Mr. Bledsoe, that this boy at the age of seventeen has on his record: * * *' (Transcript of Sentence, p. 4)

"So I would not tolerate one bit the notion that this boy hasn't got a record as an adult; and I want to say that as far as I'm concerned he's got a long record; he's as hardened a criminal as I've ever seen; and the only thing that happened to change the situation was that he had a birthday that made him seventeen and he couldn't even control that. But that carries him right up." (Transcript of Sentence, p. 5)

'Defendant's motion for new trial was denied by the trial court.'

Defendant does not deny that he was advised of the warnings required by Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974. Rather, defendant asserts that his failure to Specifically waive his right to counsel after being advised of his rights bars the admission at trial of any statements made by him during his custodial interrogation. Some of the language from the Miranda case tends to support defendant's position. For example at p. 470, 86 S.Ct. at p. 1626, 16 L.Ed.2d at p. 721, 10 A.L.R.3d at p. 1009 the Miranda opinion states,

'No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given.'

At p. 475, 86 S.Ct. at p. 1628, 16 L.Ed.2d at p. 724, 10 A.L.R.3d at p. 1012 the Miranda court wrote,

'An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the slilence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.'

The people deny that Miranda or other controlling authority require a defendant's specific waiver of in-custody constitutional rights, in haec verba, in order for a confession or statement to be admissible at trial. Instead, the people urge this Court to adopt a rule consistent with previous decisions of the Michigan Supreme Court stating that a valid waiver of the privilege against self-incrimination and the right to counsel at the accusatory stage of proceedings does not require a specific statement that the accused waives his specific constitutional rights.

Apparently, this issue is now before an appellate court of this State for the first time. Examination of numerous opinions from other jurisdictions where the courts have considered this question demonstrates that there is a split of authority in this country as to what constitutes waiver of the privilege against self-incrimination and the right to counsel since the Miranda decision.

Defendant has relied primarily on United States v. Low (W.D.Pa.1966), 257 F.Supp. 606; Evans v. United States (C.A. 8, 1967), 375 F.2d 355; Sullins v. United States (C.A. 10, 1968), 389 F.2d 985; People v. Anonymous (1968), 58 Misc.2d 13, 294 N.Y.S.2d 248; United States v. Bird (D.Mont., 1968), 293 F.Supp. 1265; and United States v. Nielson (C.A. 7, 1968), 392 F.2d 849.

After careful review of these cases, we think all are distinguishable except Sullins v. United States and People v. Anonymous, and we reject the Per se definition of waiver recognized in those two. Additionally, we note that the Sullins holding, that Miranda requires the accused to specifically decline consultation with a lawyer to constitute a valid waiver, was modified less than six months later by Bond v. United States (C.A. 10, 1968), 397 F.2d 162. The Bond court said, p. 165:

'We do not read Miranda to hold that 'an express declination of the right to counsel is an absolute from which, and only from which, a valid waiver can flow." (citing the concurring and dissenting opinion in Sullins).

The position adopted by the people and followed by the trial court, that there can be a waiver without the use of specific or magic words, is supported by decisions from a number of jurisdictions. In People v. Johnson (1969), 70 Cal.2d 541, 75 Cal.Rptr 401, 450 P.2d 865 (reversing on other grounds) cert. denied, 395 U.S. 969, 89 S.Ct. 2120, 23 L.Ed.2d 758, the court said p. 558, 75 Cal.Rptr. at p. 412, 450 P.2d at p. 876:

'Once the defendant has been informed of his rights and indicates that he understands those rights, it would seem that his choosing to speak and not requesting a lawyer is sufficient evidence that he knows his rights and chooses not to exercise them.'

That rule was followed in People v. Jarvis (1969), 276 A.C.A. 534, 80 Cal.Rptr. 832.

There was a similar holding in Hill v. State (Fla.App.1969), 223 So.2d 548 where the court said p. 549:

'Therefore, Miranda does not require any affirmative oral or written waiver of counsel by the accused, although if 'he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there could be no questioning."

In State v. Flores (1969), 9 Ariz.App. 502, 454 P.2d 172 the court said p. 507, 454 P.2d at p. 177:

'There was evidence the Miranda warnings had been given three times, and a rundown of the wording of the confession as well as the rights cards indicated defendant had an inarticulate but basic understanding of the wording.'

Of like import is the decision in State v. Pace (1969), 80 N.M. 364, 456 P.2d 197.

We think the better rule, that the waiver issue is a matter of proof, is well-stated in United States v. Hayes (C.A. 4, 1967), 385 F.2d 375, 377, 378:

'Thus, we cannot accept appellant's suggestion that because he did not make a statement--written or oral--that he fully understood and voluntarily waived his rights after admittedly receiving the appropriate warnings, his subsequent answers were automatically...