People v. McElhaney

• Citation: 215 Mich.App. 269,545 N.W.2d 18
• Decision Date: 30 January 1996
• Docket Number: Docket No. 162330
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Randy Allen McELHANEY, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 18

545 N.W.2d 18

215 Mich.App. 269

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Randy Allen McELHANEY, Defendant-Appellant.

Docket No. 162330.

Court of Appeals of Michigan.

Submitted Nov. 15, 1995, at Detroit.

Decided Jan. 30, 1996, at 9:05 a.m.

Released for Publication March 19, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Raymond P. Voet, Prosecuting Attorney, and J. Ronald Kaplansky, Assistant Attorney General, for the People.

State Appellate Defender by Norris J. Thomas, Detroit, and Randy A. McElhaney, Carson City, in pro. per.

Before FITZGERALD, P.J., and WAHLS and CHERRY, ^* JJ.

WAHLS, Judge.

Defendant was convicted by a jury of three counts of first-degree criminal sexual conduct, M.C.L. § 750.520b(1)(a); M.S.A. § 28.788(2)(1)(a). The trial court sentenced defendant to concurrent terms of thirty to sixty years' imprisonment. The jury acquitted defendant of kidnapping. Defendant appeals his convictions as of right. We affirm.

The nine-year-old complainant testified that she rode her bicycle to a party store. Upon leaving the store, she found defendant talking to an unidentified man who had just run over her bike. Defendant offered to give the complainant a ride home, and she accepted. Defendant stopped the car in a wooded area and told the complainant that he had a knife under the seat. According to the complainant, he then forced her to perform fellatio on him. Defendant took the complainant out of the car and penetrated her mouth, vagina, and anus. When defendant went back toward his car, the complainant ran through the woods and reached the home of Crystal Packard. Packard called the complainant's mother and the police.

The complainant was taken to the hospital where she was examined by physician's assistant Karen Bittner. Bittner testified that the complainant's mother was present during the initial part of the interview and that the complainant stated that the man who had given her a ride merely put his hand on her shoulder. When asked if she was hurt anywhere else, the complainant shook her head and hid her face against her mother.

When her mother left the room, the complainant told Bittner about the sexual assault. The complainant told Bittner that her mother had cried enough and that she did not want to make her mother cry any more. Bittner testified that she conducted an examination and found the complainant's vaginal and rectal areas were quite red, swollen, and tender.

The police obtained a search warrant for a "suspect vehicle" parked near defendant's trailer. Belding Police Officer Thomas O'Connor testified that, during a discussion with defendant, defendant admitted that he had given a girl a ride at approximately the same time that the complainant had reported that she was abducted. Upon making this statement, defendant was placed under arrest.

After his arrest, defendant wrote to the trial court and demanded a polygraph examination. Pursuant to his demand, defendant met with Michigan State Police Sergeant John Palmatier in Lansing, who advised defendant of his Miranda ¹ rights. Following the examination, Palmatier told defendant that he did not believe that defendant was being truthful. Palmatier asked defendant what really happened. Defendant admitted that he drove the complainant to a secluded spot and "accidentally" inserted his finger into the complainant's vagina.

The trial court denied defendant's motions to suppress his statement to O'Connor during the consensual search of his trailer, his confession to Palmatier after the polygraph examination, and the complainant's in-court identification of him as her attacker. At trial, defendant testified that he gave the complainant a ride, but immediately let her out of the car when she became upset. He denied touching the complainant.

I

Defendant argues that the statements he made following the polygraph examination were taken in violation of his right to counsel. We disagree. This Court reviews a trial court's ruling on a motion to suppress evidence on legal grounds for clear error. People v. Smielewski, 214 Mich.App. 55, 62, 542 N.W.2d 293 (1995). The trial court's findings will not be reversed unless they are clearly erroneous. People v. Haywood, 209 Mich.App. 217, 226, 530 N.W.2d 497 (1995). A finding is clearly erroneous if it leaves this Court with a definite and firm conviction that a mistake has been made. People v. Kvam, 160 Mich.App. 189, 196, 408 N.W.2d 71 (1987).

Once the Sixth Amendment right to counsel has been invoked, any subsequent waiver during a police-initiated custodial interview is ineffective with respect to the formal charges filed against the defendant. Smielewski, supra, at p. 61, 542 N.W.2d 293. However, if an accused chooses to initiate communications, the accused must be sufficiently aware of both his Fifth and Sixth Amendment rights to effectuate a voluntary, knowing, and intelligent waiver of such rights. Kvam, supra, at p. 195, 408 N.W.2d 71.

Here, there is no question that defendant's Sixth Amendment right to counsel had attached by the time that he took the polygraph examination. In addition, it is not disputed that Palmatier advised defendant of his Miranda rights. Palmatier testified that he told defendant that although defendant's attorney could not be present in the room during the examination, defendant could stop the questioning at any time to consult with counsel. Before taking the polygraph examination, defendant also signed a written waiver of his right to counsel.

A

The first question is what constitutes an effective waiver of the Sixth Amendment right to counsel when a criminal defendant chooses to initiate communications. The existence of a knowing and intelligent waiver of the Sixth Amendment right to counsel depends upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. People v. Riley, 156 Mich.App. 396, 399, 401 N.W.2d 875 (1986).

Here, defendant allegedly waived his right to counsel for purposes of the administration of a polygraph examination. We agree with the United States Supreme Court that the role of an attorney during police questioning is relatively limited compared to an attorney's role at trial. Patterson v. Illinois, 487 U.S. 285, 299, 108 S.Ct. 2389, 2398, 101 L.Ed.2d 261 (1988). Accordingly, we adhere to the Court's holding that a more formal inquiry is required before allowing a defendant to waive his right to counsel at trial than is required during postindictment questioning. Id.

Second, other circumstances support the effectiveness of defendant's waiver. Defendant was not a stranger to the criminal justice system. Defendant had a lengthy criminal history, having been convicted of at least nine misdemeanors and one felony during the prior ten years. Defendant had had unrelated criminal sexual conduct charges dropped in 1990 after passing a polygraph examination. Also, defendant understood the gravity of his situation. His letter to the trial court requesting the polygraph examination implored, "My life is at stake." Finally, defendant had an opportunity to confer with counsel. His polygraph examination took place more than six weeks after counsel was appointed for him. Indeed, defendant insisted at his Walker ² hearing that he would have proceeded with the polygraph examination despite any advice counsel would have given him. See Cooley v. United States, 501 F.2d 1249, 1250-1251 (C.A. 9, 1974).

Third, defendant was advised of his Miranda rights before undertaking the polygraph examination. The United States Supreme Court has held that Miranda warnings are sufficient to ensure that a defendant's waiver of his right to counsel during postindictment questioning is "knowing and intelligent." Patterson, supra, at pp. 298-300, 108 S.Ct. at pp. 2397-2399.

Since Patterson was decided, the Michigan Supreme Court has declined to address this issue. See People v. Anderson (After Remand), 446 Mich. 392, 403-404, 521 N.W.2d 538 (1994); People v. Ray, 431 Mich. 260, 274, n. 8, 430 N.W.2d 626 (1988). Importantly, this case is distinguishable from Anderson, supra. In Anderson, at pp. 403-404, 521 N.W.2d 538, the defendant requested a polygraph examination before he was arraigned and appointed counsel. Here, defendant wrote a letter to the trial court demanding that he be allowed to take a polygraph examination after his Sixth Amendment rights had attached and after he had invoked this right. In addition, People v. Bladel (After Remand), 421 Mich. 39, 66, 365 N.W.2d 56 (1984), aff'd. sub. nom. Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), did not address the issue whether Miranda warnings would constitute a voluntary, knowing, and intelligent waiver when it is the accused who initiates the communication.

However, the Michigan Supreme Court has stated that where the United States and Michigan Constitutions contain virtually identical provisions, as is the case when the Sixth Amendment of the United States Constitution is compared to Const. 1963, art. 1, § 20, federal construction of the constitution should be followed absent compelling reasons for an expansive interpretation of the state constitution. People v. Stanaway, 446 Mich. 643, 649 n 1, 521 N.W.2d 557 (1994). We cannot find compelling reasons to depart from Patterson, supra, and adopt its reasoning. We specifically decline to adopt the suggestion in United States v. Mohabir, 624 F.2d 1140, 1149, 1153 (C.A. 2, 1980), that would require that a judicial officer inform an accused of "the gravity of his legal position" and "the urgency of his need for a lawyer's assistance." See Patterson, supra, at p. 295, n. 8, 108 S.Ct. at p. 2396, n. 8.

We hold that under the circumstances of this case, the advisement of Miranda rights was sufficient to effectuate a voluntary, knowing, and intelligent waiver of defendant's Sixth Amendment right to counsel. Bladel, ...