People v. Smielewski

• Citation: 214 Mich.App. 55,542 N.W.2d 293
• Decision Date: 20 October 1995
• Docket Number: Docket No. 169592
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Timothy Richard SMIELEWSKI, Defendant-Appellee.
• Court: Court of Appeal of Michigan (US)

Page 293

542 N.W.2d 293

214 Mich.App. 55

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Timothy Richard SMIELEWSKI, Defendant-Appellee.

Docket No. 169592.

Court of Appeals of Michigan.

Submitted April 4, 1995, at Lansing.

Decided Oct. 20, 1995, at 9:05 a.m.

Released for Publication Jan. 23, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, David L. Morse, Prosecuting Attorney, and Daniel J. Garber, Jr., Chief Assistant Prosecuting Attorney, for the people.

Steven A. Ramey, Lansing, for defendant on appeal.

Before CORRIGAN, P.J., and MARKEY and ERNST, ^* JJ.

MARKEY, Judge.

The people appeal as of right from the trial court's order suppressing defendant's statements to the police and dismissing charges against defendant of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2), for lack of admissible evidence. Defendant moved to suppress his confession to the police regarding the armed robbery that he made while in jail as a result of a concealed weapons charge, arguing that those statements were obtained in violation of his right to counsel, which defendant had invoked with respect to the concealed weapons charge. We reverse.

Defendant was arrested for carrying a concealed weapon in a motor vehicle (CCW) on October 31, 1992, and was arraigned on November 1, 1992. At the arraignment, defendant requested an attorney and the court ordered that counsel be appointed. While defendant was incarcerated with regard to the CCW charge, a state trooper investigating an October 21, 1992, armed robbery questioned defendant at the Livingston County Jail on November 2, 5, and 7, 1992. Before each interview, the trooper read defendant his Miranda ¹ rights, after which defendant signed a waiver of those rights. At the November 2 session, the trooper asked defendant a few questions about his CCW arrest as a prelude to questioning him about the circumstances of the armed robbery. The trooper also asked defendant about his car and why he had the gun, a jacket, and a ski mask in his car. ² Defendant denied any knowledge about or involvement in the robbery at that time.

At the November 5 session, the trooper again briefly mentioned the gun and the CCW charge as a means of broaching the armed robbery topic. Defendant then admitted to the trooper that he had planned the robbery, supplied the gun used in the robbery, drove the getaway car, and split the money with the actual holdup man. Defendant also admitted that he was involved in approximately fifteen other armed robberies in Wayne County. During this interview, the trooper specifically asked defendant whether he wanted a lawyer, and defendant replied that he did not. Near the end of the session, however, defendant asked that the questioning stop, and the trooper complied.

On November 7, however, the trooper returned to the jail and met with defendant for a third time. The trooper had spoken to defendant's alleged accomplice in the armed robbery and he wanted to confront defendant with the accomplice's statement that he was not involved in the robbery. Defendant told the trooper that the suspect was lying and made other self-incriminating statements. Again, as with each session, the trooper read defendant his Miranda rights and defendant signed the waiver form before questioning began.

On January 4, 1993, defendant was charged with armed robbery and felony-firearm for the October 21, 1992 robbery. Defendant then filed a motion to suppress his statements to the trooper on the ground that they were obtained in violation of his right to counsel. After a Walker ³ hearing, the trial court partially granted the motion and suppressed defendant's statements made at the November 7 session. The court denied the motion, however, with respect to the other two sessions because the facts underlying the two charges were not sufficiently intertwined to create a factual nexus pursuant to People v. Buckles, 155 Mich.App. 1, 7-8, 399 N.W.2d 421 (1986).

In summary, this Court denies the defendant's motion to suppress statements about this robbery obtained in the first two interviews because the Court does not believe that the CCW and the robbery are so intertwined that the Sixth Amendment right to counsel was violated. The Court also rejects the argument that the questioning about the CCW case so tainted the statements about the robbery that all statements obtained in any of the interviews must be suppressed. However, the Court does suppress any statement about the robbery in this file obtained in the third interview [because, according to People v. Catey, 135 Mich App 714, 725; 356 NW2d 241 (1984), a suspect may not be requestioned on the same subject after he has once asked that the interrogation be terminated, even if he has received his Miranda warnings and a significant period of time has passed since the previous interview].

Upon reconsideration, however, the trial court reversed in part its earlier decision and suppressed all statements that defendant made to the trooper regarding the armed robbery. According to the court, the trooper questioned defendant about the CCW charge in the hope of obtaining information from him about the armed robbery because both events involved similar guns and similar vehicles. Apparently, the court believed that the trooper's decision to question defendant in this manner was persuasive evidence that the facts underlying these two charges were sufficiently intertwined to create a factual nexus (even though the court originally found no such nexus). The trial court believed that these questions tainted defendant's statements about the armed robbery, so the court granted defendant's motion to reconsider its motion to suppress. The people appeal, and we reverse.

This case presents an issue of first impression to this Court: how "related" must two criminal acts be in order to extend a defendant's properly asserted Sixth Amendment right to counsel concerning one crime to a second crime with which the defendant has not yet been charged. Under the facts of this case, we believe that defendant's CCW charge was not sufficiently intertwined with or factually related to the armed robbery that occurred ten days before the CCW arrest. Accordingly, no factual nexus existed between the two criminal acts and the trial court erred in suppressing defendant's voluntary statements to the trooper regarding his involvement in the October 1992 armed robbery because the statements were not taken in violation of defendant's right to counsel.

A defendant's invocation of his Sixth Amendment ⁴ right to counsel during judicial proceedings is distinct from the invocation of his Fifth Amendment ⁵ right to counsel during custodial interrogation. McNeil v. Wisconsin, 501 U.S. 171, 177-180, 111 S.Ct. 2204, 2208-2210, 115 L.Ed.2d 158 (1991); Buckles, supra 155 Mich.App. at 5-6, 399 N.W.2d 421. The Sixth Amendment right, which is offense-specific and cannot be invoked once for all future prosecutions, attaches only at or after adversarial judicial proceedings have been initiated. McNeil, supra 501 U.S. at 174-177, 111 S.Ct. at 2206-2208; People v. Bladel (After Remand), 421 Mich. 39, 52, 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).

The Fifth Amendment right to counsel simply refers to the right to have an attorney present at a custodial interrogation; this right is not, therefore, implicated when a defendant requests an attorney at arraignment. Buckles, supra 155 Mich.App. at 5-7, 399 N.W.2d 421. One may waive his Fifth Amendment right to counsel by voluntarily waiving his Miranda rights after arraignment. Buckles, supra 155 Mich.App. at 7, 399 N.W.2d 421, citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).

In comparison, 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. McNeil, supra 501 U.S. at 174-175, 111 S.Ct. at 2206-2207. " 'Incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses.' " Id. at 176, 111 S.Ct. at 2207, quoting Maine v. Moulton, 474 U.S. 159, 180, n. 16, 106 S.Ct. 477, 489, n. 16, 88 L.Ed.2d 481 (1985). Indeed, a defendant's request for court-appointed counsel at an arraignment does not invalidate a waiver of the defendant's right to counsel under Miranda during a subsequent police-initiated interrogation concerning a different and unrelated offense. People v. Crusoe, 433 Mich 666, 691, 449 N.W.2d 641 (1989). Thus, when a defendant is interrogated after being arraigned and the interrogation involves charges unrelated to the arraigned charges, the defendant's Sixth Amendment right invoked at arraignment--the initiation of the criminal prosecution--is inapplicable to the interrogation. Buckles, supra 155 Mich.App. at 7-8, 399 N.W.2d 421, citing State v. Sparklin, 296 Or. 85, 96-99, 672 P.2d 1182 (1983).

While we review for clear error a trial court's ruling with regard to a motion to suppress evidence on legal grounds, People v. Bordeau, 206 Mich.App. 89, 92, 520 N.W.2d 374 (1994), the " '[a]pplication of constitutional standards by the trial court is not entitled to the same deference as factual findings.' " Id., quoting People v. Nelson, 443 Mich. 626, 631, n. 7, 505 N.W.2d 266 (1993). Before we can conduct a factual determination to resolve the issue of relatedness between the charged and uncharged offenses in this case, we must define the term "related." Black's Law Dictionary (6th ed.), p. 1288, defines "related" as "[s]tanding in relation; connected; allied; akin." It also defines "related claim" as a "claim resting on substantially identical facts." Id.; see...