People v. Armstrong, 523 N.W.2d 878

523 N.W.2d 878

Mich. Ct. App.

1994

Per Curiam.

The people appeal by leave granted the trial court’s orders suppressing the statement of each defendant. Relying on People v Wright, 441 Mich 140; 490 NW2d 351 (1992), the trial court determined that the statements were given involuntarily, because neither defendant was informed before mаking his statement that counsel had been retained to represent him. We reverse.

An armed robbery occurred at a Southfield сonvenience market during the afternoon of September 30, 1992. Defendants were arrested in Detroit shortly ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍after the incident; both wеre taken to the Twelfth Precinct before being transferred to the custody of the Southfield Police Department.

Upon leаrning of her son’s arrest, defendant Armstrong’s mother contacted attorney Michael Smith. Smith is defendant Armstrong’s cousin. Smith telephoned the Twеlfth Precinct at 8:30 p.m. on the date in question in an attempt to contact Armstrong. An unidentified officer informed the attorney that Armstrong wаs being processed and thus was unavailable. Smith again telephoned the Twelfth Precinct at 9:30 p.m., but was told that Armstrong had been transferred to the Southfield Police Station. In fact, Armstrong did not arrive at the Southfield Police Station until 11:00 p.m. Smith made several attempts tо contact Armstrong by phone at the Southfield Police Department, but was told each time that there was no record of Armstrong being there. Smith’s last call to the Southfield Police Department on the date in question was made at 11:30 p.m.

The officers responsible for interrogating Arm strong claimed that they were not aware that attorney Smith was attempting to contact Armstrong and that, therefore, Armstrong was not informed that counsel had been secured for him. At approximately 11:10 p.m., Armstrong signed a form setting forth his Miranda 1 rights and waiving his right to remain silent. He then gave the police а written confession. In answering question number seven on the waiver form ("Do you want to talk to a lawyer before answering any questions?”), Armstrong claims that he originally began to write down Smith’s name, but crossed it out at the instruction of one of the detectives. An examination of the waiver ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍form supports Armstrong’s assertion. Likewise, regarding question number eight ("Will you waive your right to remain silent and answer any questions we may ask you?”), Armstrong claims that he originally began to write "no,” but crossed it out and wrote "yes” at the urging of one of the detectives. Again, Armstrong’s account is supported by a review of the waiver form.

Regarding defendant Raglin, the record reveals that his mother went to thе Twelfth Precinct at approximately 5:30 p.m. on the date in question after learning that he had been arrested. Ms. Raglin was not allоwed to speak with Raglin because, according to her, an officer stated that Raglin was being interviewed. Ms. Raglin claims that, befоre leaving the Twelfth Precinct, she told the police that she was "going to get an attorney.” Ms. Raglin retained attorney Randall Uрshaw on her son’s behalf. Upshaw proceeded immediately to the Southfield Police Station, but claims that the desk attendant infоrmed him that he would not be allowed to see or speak to Raglin. Raglin, without being aware that an attorney was at the station, proceeded to waive his rights and make an incriminating statement. We note that Raglin claimed in the trial court that his requests for an аttorney (while being fingerprinted) were ignored.

The trial court concluded that Wright, supra, mandated suppression of the statements. Therefore, we must decide whether the statements properly were suppressed as involuntary solely because defendants arguably were not informed before mаking their statements that attorneys had already been retained for them. Traditionally, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a determination by a trial court concеrning whether a statement is involuntary, and therefore inadmissible, is a determination made on the basis of the totality of the circumstanсes, and this Court reviews that determination under a clearly erroneous standard. People v Brannon, 194 Mich App 121, 131; 486 NW2d 83 (1992); People v DeLisle, 183 Mich App 713, 719; 455 NW2d 401 (1990).

However, in Wright, supra at 153, a case that involved facts similar to the present one, Justice Mallett, joined by Justice Levin, concluded that defendant Wright did not make a voluntary and knowing waiver of his rights because the police had failed to inform him before he gave his statement that counsel had been retained for him and, further, that сounsel was attempting to make contact with him. The two justices declined to consider other factors typically considеred in a "totality of the circumstances” analysis. Instead, Justices Mallett and Levin opined that the failure by the police deрartment to so inform defendant Wright of retained counsel’s presence and efforts rendered defendant’s statement involuntary per se.

It is axiomatic that the Michigan Supreme Court must decide cases by concurrence of a majority of the justices vоting. MCR 7.316(C). To create bind ing precedent, a majority must agree on a ground for decision. If a majority merely agrees with a particular result, then ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the parties are bound by the judgment, but the case provides no binding authority beyond the immediate parties. See People v Petros, 198 Mich App 401, 407; 499 NW2d 784 (1993). In Wright, though Chiеf Justice Cavanagh deemed the reasoning and conclusion of Justices Mallett and Levin as "supportable,” he concurred in result only in a separate opinion. Chief Justice Cavanagh was joined by Justice Brickley. Justices Boyle, Griffin, and Riley dissented. Thus, five of the seven Justices did not endorse the principle embraced by Justices Mallett and Levin that, in effect, would create an exсeption per se to the traditional "totality of the circumstances” analysis.

Therefore, Justice Mallet’s opinion in Wright is not binding precedent, because a majоrity of the justices did not support the rule of law set forth in that opinion. Petros, supra. Accordingly, the trial court was not "confined” to analyzing the question of voluntariness in the manner that it did. Instead, the trial court should have analyzed the issue of voluntariness ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in light of the "totality of the cirсumstances.” Because the trial court did not do this, we find that its decision to suppress the statements was clearly erroneous. Brannon, supra; DeLisle, supra. By sо holding, we do not suggest that on remand the trial court is precluded from taking into account the fact that the defendants were not advised by the police that attorneys had been retained for them. To the contrary, we believe that this factor can be appropriately considered along with the other circumstances presented in this case.

The trial court’s decisiоn to suppress the statements is reversed, and the cases are remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

Notes

Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).