People v. McClendon, Docket No. 14998

• Decision Date: 25 July 1973
• Docket Number: Docket No. 14998,No. 1,1
• Citation: 48 Mich.App. 552,210 N.W.2d 778
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth McCLENDON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 778

210 N.W.2d 778

48 Mich.App. 552

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth McCLENDON, Defendant-Appellant.

Docket No. 14998.

Court of Appeals of Michigan, Division No. 1.

July 25, 1973.

Released for Publication Oct. 4, 1973.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

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

Before V. J. BRENNAN, P.J., and DANHOF and BASHARA, JJ.

BASHARA, Judge.

Defendant was convicted by a jury of breaking and entering with intent to commit larceny. On June 7, 1972 he was sentenced to a term of 4 to 10 years imprisonment.

This conviction arose out of a breaking and entering of a warehouse in Highland Park on February 28, 1972. A police officer, responding to a call that this crime was in progress, observed the defendant running from the rear of the warehouse and a second individual emerging from the corner of the building. After apprehending this second individual, the officer radioed defendant's description and direction of flight. Defendant was apprehended by another officer approximately a block from the building.

At trial defendant moved to suppress certain admissions made by him, and a Walker hearing was held. Detective Grimm of the Highland Park police department testified that he had defendant read the 'rights form' and that he then read defendant his rights. However, defendant refused to sign the form. After this refusal, the detective began questioning defendant, who made inculpatory admissions. The trial court upon hearing this evidence, and without making any specific findings or explanation, stated: 'Motion to exclude is denied'. From this ruling and his conviction, defendant appeals.

Defendant first argues that the trial court erred in denying defendant's motion to exclude certain extrajudicial statements made by defendant since no evidence was introduced to show that he had waived his constitutional rights.

At the outset, it must be noted that the state has the burden of establishing that defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); People v. Baker, 19 Mich.App. 480, 488, 172 N.W.2d 892, 896 (1969); People v. Lauderdale, 17 Mich.App. 191, 195, 169 N.W.2d 171, 173--174 (1969). Thus, this Court is required to examine the entire record and make an independent determination as to the ultimate issue of voluntariness. People v. Summers, 15 Mich.App. 346, 166 N.W.2d 672 (1968); People v. Stanis, 41 Mich.App. 565, 200 N.W.2d 473 (1972); People v. Coffey, 42 Mich.App. 683, 202 N.W.2d 456 (1972).

The transcript of the Walker hearing reveals that the prosecution offered the following evidence to prove a voluntary waiver: (1) the fact that defendant was warned of his rights and (2) that he gave a statement. Balanced against these facts are defendant's express refusal to sign a 'waiver of rights' form and the fact that the questioning was apparently initiated by the detective and not the defendant.

We agree with the decisions of this Court which hold that no express waiver is required after an accused had been advised of his rights. People v. Matthews, 22 Mich.App. 619, 178 N.W.2d 94 (1970); People v. McClure, 29 Mich.App. 361, 185 N.W.2d 426 (1971).

However, defendant's express refusal to sign a waiver form has been considered a relevant factor in determining the validity of an asserted waiver. United States v. Nielson, 392 F.2d 849 (C.A. 7, 1968); United States v. Crisp, 435 F.2d 354 (C.A. 7, 1970); United States v. Jenkins, 440 F.2d 574 (C.A. 7, 1971). The mere refusal to sign a waiver does not automatically render inadmissable all further statements of the defendant. United States v. McDaniel, 463 F.2d 129 (C.A. 5, 1972); United States v. Thompson, 417 F.2d 196 (C.A. 4, 1969). It could amount to nothing more than a reluctance to sign any document, or it could be an express refusal of an accused to waive his rights. Therefore, this Court must look to all the circumstances of the detention to ascertain whether or not the refusal to sign the waiver was tantamount to a refusal to waive his rights.

The only real evidence offered by the prosecution to prove waiver was the fact that defendant confessed. The Supreme Court addressed itself to this situation in Miranda, supra, 384 U.S. at 475, 86 S.Ct. at 1628, wherein it was stated:

'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 silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.'

We believe this language is applicable since the only evidence of waiver is that defendant confessed. There is no evidence that defendant initiated the questioning. To the contrary, the testimony indicates that the questioning was initiated by the officer. Under these circumstances, we hold that the prosecution failed to sustain its burden of proving a voluntary waiver.

A review of the testimony adduced at the Walker hearing reveals a second ground on which the admission should have been excluded under the proofs offered by the prosecution. This conclusion is reached in light of the following language in Miranda, supra, 384 U.S. at 473--474, 86 S.Ct. at 1627:

'Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain...