People v. Parker

• Citation: 84 Mich.App. 447,269 N.W.2d 635
• Decision Date: 05 July 1978
• Docket Number: Docket No. 31252
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Allan PARKER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 635

269 N.W.2d 635

84 Mich.App. 447

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Allan PARKER, Defendant-Appellant.

Docket No. 31252.

Court of Appeals of Michigan.

July 5, 1978.

Released for Publication Sept. 18, 1978.

George S. Buth, Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., David H. Sawyer, Pros. Atty., for plaintiff-appellee.

Before CAVANAGH, P. J., and BRONSON and KELLY, JJ.

BRONSON, Judge.

Defendant was convicted on July 12, 1976, after a bench trial, of kidnapping, M.C.L. § 750.349; M.S.A. § 28.581, second-degree criminal sexual conduct, M.C.L. § 750.520c(1)(a); M.S.A. § 28.788(3)(1)(a), and assault with intent to do great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279. He appeals of right.

We reverse all three convictions, holding that a confession introduced at trial was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In early December, 1975, defendant appeared at the Wyoming, Michigan Police Department and attempted to turn over some marijuana and drug paraphernalia. No arrest was made. A few days later, defendant attempted suicide by taking a drug overdose. After emergency treatment, he was transferred to a mental institution. While at the institution, defendant began to discuss his criminal sexual involvement with a young child in conversations with hospital staff. Someone ¹ at the hospital informed the Wyoming police of these admissions. The police obtained a warrant and arrested defendant upon his release on a marijuana charge, based on defendant's attempt to turn over the drug to police prior to his hospitalization. Officer Cline of the Wyoming Police Department admitted that at the time of defendant's arrest on the marijuana charge, the information received from the hospital had caused him to focus upon defendant as the prime suspect in the 1975 kidnapping, sexual assault and stabbing of a five-year-old girl.

Defendant was taken to the Wyoming police station. Officer Cline testified that he then asked defendant to sign a Miranda rights waiver form:

"Q. Did he sign this?

"A. No, sir, he did not.

"Q. Do you know why he did not, or did he indicate why?

"A. He advised me at that time that he would rather talk to an attorney before talking to me about it."

No attorney was ever furnished. Different versions of what happened next were presented by defendant and Officer Cline. Defendant testified that immediately after he requested an attorney, Officer Cline began to interrogate him, stating that he had a good idea that the defendant had something on his mind, and suggesting that he could insure that defendant would get the psychiatric treatment he desired if he confessed. Officer Cline testified that he first "processed" defendant on the marijuana charge and then the two engaged in "general conversation" for about an hour. Cline testified that defendant initiated the idea of treatment at a forensic center and confessed after Cline had indicated that treatment could be obtained.

There is no dispute that about one and one-half hours after defendant had asked for an attorney, he waived his rights and confessed. An hour after that he again waived his rights and confessed on video tape.

After a pretrial Walker ² hearing, the trial judge held the confession admissible, relying on Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), although he expressed doubts about the applicability of that case.

As stated in Mosley, the procedure to be followed after an accused requests counsel is detailed in Miranda :

" 'If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.

" 'This does not mean, as some have suggested, that each police station must have a "station house lawyer" present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person's Fifth Amendment privilege so long as they do not question him during that time.' " Michigan v. Mosley, supra, at 101, n. 7, 96 S.Ct. at 325, quoting Miranda v. Arizona, supra, 384 U.S. at 474, 86 S.Ct. 1602.

See People v. McGillen # 1, 392 Mich. 251, 220 N.W.2d 677 (1974), People v. Brannan, 64 Mich.App. 374, 236 N.W.2d 80, Lv. granted, 395 Mich. 812 (1975), People v. Lewis, 47 Mich.App. 450, 209 N.W.2d 450 (1973).

The difficult question presented in this case is whether a suspect who has asserted his right to counsel may later waive that right without having spoken to a lawyer. The courts which have considered this issue have reached different results.

The weight of authority holds that a subsequent waiver of a once-invoked right to counsel may be valid in certain circumstances. See, E. g., United States v. Rodriguez-Gastelum, 569 F.2d 482 (CA 9, 1978), United States v. Massey, 550 F.2d 300 (CA 5, 1977), United States v. Pheaster, 544 F.2d 353 (CA 9, 1976), United States v. Womack 542 F.2d 1047 (CA 9, 1976), United States v. Cavallino, 498 F.2d 1200 (CA 5, 1974), United States v. Lewis, 425 F.Supp. 1166 (D.Conn.1977); People v. Sparks, 82 Mich.App. 44, 266 N.W.2d 661 (1978). These cases generally rely on language in Miranda permitting waiver of rights ³ and Michigan v. Mosley, supra, which allowed a subsequent waiver of the right to remain silent. While we find that Mosley expressly did not decide the issue in the case at bar, ⁴ the rationale of Mosley militates against application of a Per se exclusionary rule:

"(A) blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests." Michigan v. Mosley, supra, 423 U.S. at 102, 96 S.Ct. at 326.

We hold that a person who has invoked his right to counsel may later waive that right without an attorney.

While we reject a Per se rule in this case, we do recognize differences between a suspect's assertion of a right to remain silent and his assertion of a right to counsel. A waiver made after assertion of a right to counsel should be viewed with skepticism; once an individual decides that he is incapable of communicating with authorities absent counsel, we should be very suspicious of a later, counselless waiver. See Michigan v. Mosley, supra (White, J., concurring). ⁵

In light of this difference, a more careful scrutiny of the suspect's waiver is required than for a waiver made prior to the assertion of right to counsel or after assertion of the right to remain silent. United States v. Cavallino, supra, United States v. Lewis, supra. In particular, police should not be allowed to ignore a suspect's request for a lawyer; interrogation must cease until, at the least, a reasonable Opportunity to obtain counsel has been afforded. The normal heavy burden which the prosecution bears in proving the validity of a waiver should be of a very high standard where waiver of a previously invoked right to counsel is involved.

In the case at bar, the prosecution has not borne its very heavy burden of proving a valid waiver. Even accepting Officer Cline's version of the facts as true, there was less than a half-hour break in questioning after defendant requested a lawyer. ⁶ Officer Cline was aware that defendant had been experiencing emotional and drug problems and had just been released from an institution. Finally, defendant testified that there was no break in interrogation at all.

We are left with a "definite and firm conviction" that the trial court erred in holding the confession admissible. See People v. McGillen # 1, supra. The prosecution failed to carry its very heavy burden of proof that defendant validly waived his right to counsel.

We also hold that the admission of defendant's confession at trial cannot be deemed harmless error.

In view of our disposition of this case, we need not address the other issues raised by defendant.

Reversed and remanded for a new trial.

KELLY, Judge (dissenting).

Since the only error alleged is in connection with the admission of defendant's confession, we examine the entire record and independently determine voluntariness. People v. Robinson, 386 Mich. 551, 557, 194 N.W.2d 709 (1972); we reverse where we are left with a definite and firm conviction that a mistake was committed. People v. McGillen # 1, 392 Mich. 251, 257, 220 N.W.2d 677 (1974). See People v. Sparks, 82 Mich.App. 44, 266 N.W.2d 661 (1978). On the record presented I am not left with a definite and firm conviction that a mistake was committed, and, therefore, dissent.

The trial court resolved the conflict of testimony between defendant and Officer Cline, noted by the majority, in favor of the testimony given by Officer Cline. The Fourth Circuit Court of Appeals, when confronted with a similar Miranda issue, noted:

"The trial court, which had the advantage of observing the witnesses and their demeanor, implicitly found that the investigating officer had acted in good faith, without guile or subterfuge, in conducting this inquiry, and such a finding is not to be lightly disturbed." United States v....