PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v LARICCA SEMINTA MATHEWS, Defendant-Appellee.
SC: 158102
Michigan Supreme Court
June 12, 2020
COA: 339079; Oakland CC: 2016-260482-FC
Order
On October 3, 2019, the Court heard oral argument on the application for leave to appeal the May 22, 2018 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
VIVIANO, J. (dissenting.)
I dissent from the majority‘s decision to deny leave in this case because I believe that the Court of Appeals erred in concluding that the warnings provided to defendant were insufficient under Miranda v Arizona, 384 US 436 (1966), and its progeny. I would reverse.
I
Defendant Laricca Mathews was charged with open murder,
Before any questions are asked of you, you should know: (1) you have a right to remain silent; (2) anything you say may be used against you; (3) you have a right to a lawyer, and (4) if you cannot afford a lawyer, one will be provided free.
I understand what my rights are and am willing to talk.
Detective Stowinsky orally reviewed the advice-of-rights form with defendant, and the following exchange took place:
[Detective Stowinsky]: Ok, um, I‘m going to review these, ok?
[Defendant]: Uh hmm.
[Detective Stowinsky]: I‘m going to read these to you.
[Defendant]: Uh hmm.
[Detective Stowinsky]: Um, before I question, start asking you, you should know that you have a right to remain silent.
[Defendant]: Uh hmm.
[Detective Stowinsky]: Anything you say maybe [sic] used against you. You have
a right to a lawyer, if you cannot afford a lawyer, one will be provided for free. Do you understand your rights? [Defendant]: Yes.
[Detective Stowinsky]: Do you want to talk with me?
[Defendant]: Yeah, we can talk.
Defendant signed the form, and Detective Stowinsky proceeded to interview her. During the interview, defendant claimed that she and Dumas had been fighting and that she had shot Dumas in self-defense after Dumas attacked her.
Later that day, Sergeant Michael DesRosiers conducted a second interview with defendant. Before the interview, the following exchange took place:
[Sergeant DesRosiers]: . . . Alright, so um, Detective Stowinsky, remember he talked about your rights and everything?
[Defendant]: Uh hmm.
[Sergeant DesRosiers]: Same thing applies. Um, you don‘t, you don‘t have to even talk to me if you don‘t want to. You can get an attorney um, if you can‘t afford one, we‘ll make sure you get one.
[Defendant]: Ok.
[Sergeant DesRosiers]: So, um, we‘re just continuing the interview that you started with him. I just looked over the statement and have a couple questions about it. Um, so I‘m looking at the statement and the problem I have, and you can stop me at any time you want, is, it‘s from the things in the statement don‘t necessarily match up with the evidence we found.
During the second interview, defendant claimed that she shot the victim when they were “face to face.” When Sergeant DesRosiers told defendant that Dumas had been shot in the back of the head, defendant speculated that the bullet may have ricocheted off the wall. She also suggested the shooting may have been an accident.
Defendant filed a motion to suppress the statements that she made to police arguing, in pertinent part, that the police failed to advise her that she had the right to have an attorney present both before and during questioning.1 The trial court granted defendant‘s motion, concluding that the police had failed to inform defendant that she had the right to have an attorney present during the interrogation. The Court of Appeals initially denied the prosecution‘s interlocutory application for leave to appeal, but on remand from this Court, in a split decision, the Court of Appeals affirmed the trial court‘s ruling that suppressed defendant‘s statements. After recognizing the conflicting authority on the issue, the Court of Appeals agreed with the trial court, holding that “a general warning regarding a ‘right to a lawyer’ does not comply with the dictates of Miranda.” People v Mathews, 324 Mich App 416, 429 (2018). Because there was no binding caselaw addressing this issue, the Court of Appeals undertook a lengthy and thorough review of its own cases, along with cases from the federal circuits and our sister state courts. Ultimately, the Court of Appeals majority decided to follow its own prior decisions, see, e.g., People v Whisenant, 11 Mich App 432, 434 (1968),2 and those of
II
Miranda has been called a “pathmarking decision.” Florida v Powell, 559 US 50, 53 (2010). It ruled that “an individual must be ‘clearly informed,’ prior to custodial questioning, that he has, among other rights, ‘the right to consult with a lawyer and to have the lawyer with him during interrogation.‘” Id., quoting Miranda, 384 US at 471. It is beyond dispute, however, that Miranda was not intended, and has not been interpreted, as establishing a precise incantation that must be given prior to a custodial interrogation. Miranda itself said that either the warnings it laid down or “a fully effective equivalent” were required. Miranda, 384 US at 476; see also Rhode Island v Innis, 446 US 291, 297 (1980) (noting that the safeguards include the ”Miranda warnings . . . or their equivalent“).
The Supreme Court‘s post-Miranda pronouncements on the topic similarly make clear that the “Court has not dictated the words in which the essential information must be conveyed.” Powell, 559 US at 60; see also California v Prysock, 453 US 355 (1981) (“This Court has never indicated that the ‘rigidity’ of Miranda extends to the precise formulation of the warnings given a criminal defendant. . . . Quite the contrary, Miranda itself indicated that no talismanic incantation was required to satisfy its strictures.“). The question is whether the warning that was given reasonably conveyed the rights specified in Miranda, and in making this determination the warning need not be interpreted as though it were a legal document. Duckworth v Eagan, 492 US 195, 203 (1989).
With regard to the specific warning at issue here—the notice of the right to an attorney—the Supreme Court has not established that the warning must expressly notify the suspect of the right to consult an attorney before questioning or have one present during it. Some comments in Miranda suggest such a requirement. See Miranda, 384 US at 471 (“Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation . . . .“). But other statements mentioned the right to an attorney‘s “presence” without specifying when and where the “presence” would occur.3 And when the Court gave an example
As courts have recognized, Miranda‘s various statements thus create some ambiguity.5 And, while it appears the discussion of the FBI warnings was not necessary to decide the case,6 the bottom line is that the Court specifically approved a warning that lacked any explicit reference to the time when the right to counsel attached, i.e., that it attached before or during the interrogation. The Sixth Circuit Court of Appeals explained it well:
To be sure, Miranda clarified that “presence” includes the right to consult with an attorney before and during questioning. But Miranda did not require a warning exactly to that effect. Case in point: Miranda acknowledged that the warnings employed by the FBI at the time of its decision were “consistent with the procedure which we delineate today.” And those warnings, while advising of the right to counsel, conspicuously did not state expressly that counsel may be present during interrogation. [United States v Clayton, 937 F3d 630, 639 (CA 6, 2019) (citation omitted).]
See also United States v Lamia, 429 F2d 373, 376-377 (CA 2, 1970) (relying on Miranda‘s approval of the FBI warnings); cf. People of Territory of Guam v Snaer, 758 F2d 1341, 1342 (CA 9, 1985) (“The Supreme Court in Miranda . . . , although making clear that one does have the right to consult with counsel before questioning, . . . is ambiguous as to how explicitly the person must be warned of that right.“). And Miranda was not the only time the Supreme Court has endorsed a general
In other cases, the Supreme Court has approved warnings that offered less than was encompassed in Miranda‘s more expansive passages. These cases instead focus on whether the warnings indicated limitations on the right to counsel. In California v Prysock, 453 US at 356, for example, the Court approved a warning that the defendant had a “right to talk to a lawyer before [being] questioned.” Miranda was satisfied because “nothing in the warnings . . . suggested any limitation on the right to the presence of appointed counsel different from the clearly conveyed rights to a lawyer in general[.]” Id. at 360-361. Similarly, in Duckworth v Eagan, the defendant had been warned, “You have a right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. . . . We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court.” Duckworth, 492 US at 198 (emphasis and quotation marks omitted). The Court concluded that those warnings, when taken together, satisfied Miranda because they informed the defendant of his rights and did not specifically inform defendant that the right to counsel only attached during trial. Id. at 204-205. Most recently, in Florida v Powell, the Court upheld a warning that informed the defendant of his right to “talk to a lawyer before answering any of our questions” and that he could invoke his rights at any time but did not expressly state that the defendant could have the lawyer present during the interrogation. Powell, 559 US at 54 (quotation marks omitted). A commonsense interpretation of the warning, the Court concluded, conveyed the defendant‘s rights. Id. at 62-64.
Among other courts, a split exists over whether the advisement must expressly mention that the right to a lawyer applies before or during the interrogation.7 Some courts have concluded that the right to have an attorney present at these times is independently critical and not adequately conveyed by a notice that mentions neither period or only one but not the other. See, e.g., United States v Noti, 731 F2d 610, 615 (CA 9, 1984) (“There are substantial practical reasons for requiring that defendants be advised of their right to counsel during as well as before questioning.“).8
cases is
F3d at 639.12 This approach thus trusts that Miranda meant what it said regarding the FBI warnings. As I explain below, this is the proper way to interpret Miranda. Under these rationales, numerous courts have upheld advisements like that in the present case, i.e., without any express reference to the temporal scope of the right to counsel.13
at 444, 467-468, 479. That an unqualified statement reasonably conveys the full breadth of the right to remain silent suggests that the same is enough for the right to an attorney: the former right is at the core of Miranda‘s protection, whereas the latter is a means of protecting that core right.14 Thus, it would make little sense, linguistically or logically, to demand additional details about the auxiliary right but not the fundamental right it was designed to protect. Cf. Carter, 398 P3d at 128 (“[I]t would be highly counterintuitive for a reasonable suspect in a custodial setting, who has just been informed that the police cannot talk to him until after they advise him of his rights to remain silent and to have an attorney, to understand that an interrogation may then proceed without permitting him to exercise either of those rights.“). Indeed, even the Court of Appeals in this case found that the police did not need to specifically inform defendant that she was able at any time to invoke her right to remain silent. See Mathews, 324 Mich App at 428, quoting Miranda, 384 US at 467-468 (“An individual who has been informed in ‘clear and unequivocal terms’ at the outset of the interrogation that ‘he has the right to remain silent’ will understand ‘that his interrogators are prepared to recognize his privilege should he choose to exercise it.’ “). Consequently, I believe that an unqualified statement, unadorned with temporal components, is sufficient to advise a person of both rights.
III
In the present case, I conclude that the general warning defendant received satisfied Miranda. Defendant was given a form at the outset that notified her the warnings were necessary “[b]efore any questions are asked of you.” She then received, both on the form and verbally, advisement of an unqualified right to an attorney. Nothing
But even more important, to my mind, is that Miranda approved of FBI warnings no more detailed than the ones administered here and the Court has never required more since Miranda.16 Thus, the Court of Appeals’ decision below stands for the proposition that warnings like those approved in Miranda actually violate Miranda. Instead of second-guessing Miranda, I would take the Supreme Court at its word on whether this way of phrasing the warning is permissible.17 Demanding anything more elaborate, as the Court of Appeals did here, exceeds what Miranda required and is therefore not an application but an extension of the case‘s holding.
In taking the narrower reading of Miranda, I am guided by first principles. I am not the first to notice that the rule crafted in Miranda lacks a discernable relationship to the actual text and original meaning of the Constitution.18 Of course, Supreme Court caselaw
is binding and must be faithfully applied. Abela v Gen Motors Corp, 469 Mich 603, 606 (2004). But if a fair reading of the precedent does not resolve the issue we face, we have the power and the responsibility to decide the issue for ourselves. We are under no obligation to extend the scope of a precedent to cover the matter at hand, especially when, as here, the Supreme Court has already signaled its approval of the practice.
I would not extend a decision like Miranda unless the extension can be independently justified under the proper interpretive approach, that is, unless the extension is required by the Constitution‘s original meaning.19 It is no easy task, however, to discern original meaning in an area where the caselaw has long since been uncoupled from that meaning. Here, for example, the interpretive endeavor required by Miranda revolves around a specific set of warnings promulgated by the Court. A judge‘s traditional tools of textual and historical inquiry mean little in this analytical framework. Does the text of the Fifth Amendment, as originally understood, require the conclusion that a person has been “compelled . . . to be a witness against himself” on the basis of statements he made without first being explicitly warned that he has a right to consult an attorney before and during custodial interrogation? Certainly, no one in this case has offered such an argument, and accordingly I will not assay an answer. Merely posing the question demonstrates the need for caution in this area.20
For these reasons, I would not extend Miranda to provide that preinterrogation warnings must expressly advise of the right to counsel before and during the questioning. It is enough that a suspect, like defendant here, be notified of her unqualified right to counsel.
IV
In denying leave in this case, the Court declines to exercise the proper measure of circumspection that the issue requires and instead submits, without comment, to the Court of Appeals’ extension of Miranda in a published opinion. I disagree that the warnings here were deficient under Miranda, and I would not extend that decision to prohibit these warnings. Accordingly, I believe the Court of Appeals’ decision should be reversed, and I therefore respectfully dissent.
MARKMAN and ZAHRA, JJ., join the statement of VIVIANO, J.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.
June 12, 2020
Clerk
Notes
Some of these cases warrant additional comment, as the state of the law in these circuits is not entirely clear. Recently, the Sixth Circuit has explained that other errors in Tillman—specifically, the failure to advise that the defendant‘s statements could be used against him—were the thrust of the case, and thus its brief comment on the warning related to the attorney was “not persuasive.” Mitchell v MacLaren, 933 F3d 526, 535 (CA 6, 2019) (habeas proceedings). Additionally, the Ninth Circuit has subsequently held that a defendant “need not have been informed explicitly of his right to consult with counsel prior to questioning” when the warning adequately conveyed that right by stating he could have counsel appointed before the interrogation and present with him during it. United States v Loucious, 847 F3d 1146, 1151 (CA 9, 2017); see also Sweeney v United States, 408 F2d 121, 124 (CA 9, 1969) (finding sufficient a general warning that the defendant “was entitled to an attorney” because “following, as it did, immediately on the warning as to the right to remain silent and the risk in not doing so, would, we think, be taken by most persons to refer to the contemplated interrogation, not to some other time“).
See United States v Caldwell, 954 F2d 496, 502 (CA 8, 1992) (“When the only claimed deficiency is that of generality, the teaching of Duckworth that we are not construing a will or defining the terms of an easement convinces us that we cannot hold the warning in this case amounts to plain error.“); Lamia, 429 F2d at 376-377 (“Lamia had been told without qualification that he had the right to an attorney and that one would be appointed if he
This conclusion—that unqualified statements do not expressly or impliedly convey qualifications—not only comports with common sense, but it also makes sense under a well-known linguistic theory of conversation developed by H. P. Grice. He posited that participants in conversations generally adhere to the maxim of “Quantity,” by which they expect that the information contained in statements will “be neither more nor less than is required.” Grice, Logic and Conversation, in 3 Syntax and Semantics: Speech Acts (New York: Academic Press, 1975), p 47. This means that contributions to the conversation will not be “overinformative” because “overinformativeness may be confusing in that it is liable to raise side issues; and there may also be an indirect effect, in that the hearers may be misled as a result of thinking that there is some particular POINT in the provision of the excess of information.” Id. at 46. Thus, for example, the statement “Jane has two children” does not implicate that Jane has more than two children, even though the statement would remain true if she had a third child. Kaplan, Linguistics and Law (New York: Routledge, Taylor & Francis Group, 2020), p 7. In the same way, an unconditioned assertion that a suspect has the right to counsel does not implicate a temporal restriction on the right.
See also United States v Warren, 642 F3d 182, 186 (CA 3, 2011) (“[The defendant] offers no rationale for a reasonable person‘s belief that the clear, unmodified statement ‘[y]ou have the right to an attorney’ would be regarded as time-limited.“); State v King, ___So3d___, ___ (La, 2020) (Case No. 2019-KK-01332), slip op at 6-7 (“The unelaborated upon warning given in the present case, which lacked any temporal aspect at all, implied no limitation on the right to counsel.“).
Other courts have upheld similar, but slightly more detailed warnings. See Warren, 642 F3d at 184, 186-187 (upholding warning that “You have the right to an attorney. If you cannot afford to hire an attorney, one will be appointed to represent you without charge before any questioning if you wish“) (quotation marks omitted); Rigterink v State, 66 So 3d 866, 893 (Fla, 2011) (“Hence, by advising Rigterink that he may have counsel ‘present prior to questioning,’ the police reasonably conveyed to Rigterink . . . that counsel, if Rigterink so desired, would have been ‘present’ with Rigterink both before and during the custodial interrogation.“); LaJoie, 95 Mass App at 11, 16-17 (upholding warning that the defendant had the right to counsel and if he could not afford one, an attorney would be appointed “prior to any questioning“) (quotation marks omitted).
And it has passed on more than one opportunity to reverse courts that have upheld general warnings that contain partial or no express temporal components, including very recently. See Carter v Colorado, 583 US ___; 138 S Ct 980 (2018); Warren v United States, 564 US 1012 (2011).