People v. Plyler

• Decision Date: 03 October 1978
• Docket Number: Docket No. 77-4489
• Citation: 86 Mich.App. 272,272 N.W.2d 623
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Carole S. PLYLER, Defendant-Appellee. 86 Mich.App. 272, 272 N.W.2d 623
• Court: Court of Appeal of Michigan — District of US

Page 623

272 N.W.2d 623

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Carole S. PLYLER, Defendant-Appellee.

Docket No. 77-4489.

86 Mich.App. 272, 272 N.W.2d 623

Court of Appeals of Michigan.

Oct. 3, 1978.

Released for Publication Jan. 3, 1979.

[86 MICHAPP 273] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Gary L. Walker, Pros. Atty., for plaintiff-appellant.

Kendricks, Bordeau, Casselman & Adamini by Ronald D. Keefe, Marquette, for defendant-appellee.

[86 MICHAPP 274] Before V. J. BRENNAN, P. J., and R. B. BURNS and KELLY, JJ.

KELLY, Judge.

Plaintiff appeals from a Marquette County Circuit Court order granting defendant's motion to suppress certain statements made by the defendant during interrogation and other physical evidence. Plaintiff raises two issues on appeal. We affirm as to the first issue and reverse as to the second.

Defendant stands charged with inciting to murder, contrary to M.C.L. § 750.157b; M.S.A. § 28.354(2). This prosecution arises from the following facts:

On March 14, 1977, defendant allegedly telephoned one Kenneth Epps and asked whether he would be willing to cause a fatal accident to an unnamed person for $15,000. Epps told defendant he would have to think about it and later reported the call to the Marquette City Police. The next day, defendant again called Epps and told him to forget the matter and Epps agreed to do so; however, he reported the second call to the police. After the March 15, 1977, telephone conversation, the defendant never again called Epps or initiated any contact with him; all subsequent contacts between the parties were initiated by Epps at the urging of the police.

On March 28, 1977, Epps, at the direction and in the presence of the police, called the defendant. This conversation was tape recorded by the police without the defendant's knowledge and without having obtained a search warrant. During the next two days, the police obtained four separate search warrants to tape record two telephone conversations and a meeting between the defendant and Epps at a local restaurant and to record and film a [86 MICHAPP 275] second meeting between them. Immediately after the second meeting, the defendant was arrested.

During oral interrogation of the defendant, the police requested that the defendant either write out a statement of what she had told them or sign a statement that had been prepared by them. Defendant replied that she did not want to write anything until she talked to an attorney. Oral interrogation, however, continued for 15 minutes to 1/2 hour thereafter. On September 21, 1977, the trial court granted the defendant's motion to suppress, ruling that it was unable to separate the information obtained by the police interrogators prior to the request for an attorney from that obtained subsequent to that request and therefore suppressed the entire interrogation. Further, the court ordered that the first recorded telephone conversation be suppressed because it was made without a warrant and also suppressed the other recordings and films obtained pursuant to warrants on the grounds that they had no separate source independent of the first illegal recording.

The first issue raised on appeal is whether all of the defendant's statements made in the course of the interrogation were rendered inadmissible by further questioning after she said that she did not want to reduce her statement to written form until she had seen an attorney.

Plaintiff argues that the police interrogation of defendant did not have to be terminated under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; 10 A.L.R.3d 974 (1966), merely because she indicated that she desired to speak to an attorney before reducing her oral statements to writing. Alternatively, the plaintiff asserts that, even if defendant's statement should have terminated the interrogation, her oral statements up to [86 MICHAPP 276] the time of her request for an attorney should be admitted because they are severable from the statements made by her after the point at which questioning should have been terminated. We reject both of these contentions.

The decision of a trial judge following a hearing held under People v. Walker (On Rehearing), 374 Mich. 331, 132 N.W.2d 87 (1965), is reversed only if this Court has a "definite and firm conviction that a mistake has been committed". People v. Bradley, 54 Mich.App. 89, 98, 220 N.W.2d 305, 310 (1974). The reviewing court, after examining the entire record, must make an independent determination and may reverse only when convinced that the trial court's decision was clearly erroneous. People v. Brannan, 64 Mich.App. 374, 376, 236 N.W.2d 80 (1975), Lv. gtd., 395 Mich. 812 (1975).

Plaintiff argues that the interruption of the interrogation by defendant did not require termination of the interview. Plaintiff relies on United States v. Frazier, 155 U.S.App.D.C. 135, 476 F.2d 891 (1973), and People v. Bradley, supra, for this argument. However, this reliance is misplaced because in both cases the defendant failed to specifically state that he wished to consult with counsel. In People v. Brannan, supra, we held that questioning of the accused should have ceased as soon as the accused indicated that "he'd have to check with a lawyer" before he could decide whether to submit to a Polygraph test. Characterizing the reference to an attorney as a "red flag", the Court of Appeals' majority said:

"This should have stopped the interrogation forthwith as Miranda requires that if a suspect indicates in any manner and at any stage of the process he wishes to consult with an attorney, there can be no questioning. Miranda v. Arizona, 384 U.S. 436, 477, 86 S.Ct. 1602, [86 MICHAPP 277] 16 L.Ed.2d 694; 10 A.L.R.3d 974 (1966), People v. Ansley, 18 Mich.App. 659, 667, 171 N.W.2d 649 (1969)." 64 Mich.App. at 378-379, 236 N.W.2d at 82.

Similarly, in People v. Recorder's Court Judge, 79 Mich.App. 495, 261 N.W.2d

63 (1977), this Court held that an examining magistrate did not abuse her discretion in holding that a criminal defendant's statement to a police officer was not admissible where the statement was made subsequent to Miranda warnings, and was given after the defendant indicated a desire for counsel by asking the interrogating officer whether he thought she should have an attorney. An ambiguous indication of an interest in having co...