People v. Bladel

People v REMAND) (AFTER v BLADEL PEOPLE v PEOPLE JACKSON (Calendar 8). 69615, 4, 7, Argued April 69749.

Docket Nos. Nos. 28, 29, January Decided December 1984. Released 1985. Af- 1986). (April firmed 475 US Rudy jury Bladel was convicted in the Jackson Circuit Noble, Court, J., first-degree E. Russell of three counts of challenged post- murder. The defendant the admission of a ground confession on the that it had been made requested without assistance of counsel. The Court of P.J., MacKenzie, JJ., Appeals, Beasley, and Bashara and af- firmed, upholding the decision of the trial court that knowingly understandingly defendant had waived his (Docket 48082). granting to counsel of leave to No. lieu appeal, Supreme Court remanded the case to the Court of Appeals light People in in v for reconsideration of its decision Conklin, (1982), Paintman and 412 Mich 518 that statements made to assistance of without remand, Appeals, counsel were inadmissible. the Court of On P.J., MacKenzie, JJ., Beasley, and R. B. reversed in Burns and (Docket 63834). opinion per appeal. people curiam No. Wayne by jury Robert B. Jackson was convicted in the Circuit Court, Gilmore, J., second-degree Horace W. murder and of conspiracy second-degree to commit murder. The defendant challenged post-arraignment the admission of statements made Danhof, C.J., Appeals, in the absence of counsel. The Court of (J. Bronson, Gillis, J., concurring part J. H. and dissent- ing part), affirmed the defendant’s conviction of second-de- murder, gree conspiracy but vacated the conviction of to com- second-degree ground mit murder on the that the defendant References for Points in Headnotes 2d, seq. 21A Am Jur Criminal Law 988 et [1-5] §§ interrogation” What constitutes "custodial within rule of Miranda v requiring suspect Arizona be informed of his federal consti- rights interrogation. tutional before custodial 31 ALR3d 565. Necessity informing suspect privilege against under self- incrimination, prior police interrogation. 10 1054. ALR3d prior arraignment. Accused’s to assistance of counsel at or 5 ALR3d 1269. by definition conspired commit a crime have could not (Docket premeditation and deliberation without is committed 51655). appeals. The defendant No. Cavanagh, joined by Chief Justice opinion by Justice In an Levin, Supreme Kavanagh Court and Justices Williams held: following by police interrogated may not be A defendant magistrate arraigning until request before an for counsel a available; to chooses where a defendant made been counsel has communications, exchanges, with or conversations reinitiate sufficiently Fifth and Sixth aware of his police, be he must voluntary, know- rights a to effectuate to counsel Amendment interrogation commencing intelligent ing, waiver. Before defendant, obligation police to determine an have a arraigned and has has been the defendant whether counsel. by guaranteed Fifth and right both the counsel is 1. The to Constitution, as well to the United States Sixth Amendments However, Michigan are distinct Constitution. as necessarily has a Fifth and An accused coextensive. and not present during right to have counsel Fourteenth Amendment protect interrogation the Fifth Amend- in order to custodial compulsory privilege against Once self-incrimination. ment present during right custo- counsel invokes his to have accused interrogation, interro- must refrain from further dial available, gation unless the accused until counsel is made communications, exchanges, or conversations initiates further right police. not to counsel is with the The Fifth Amendment arraign- interrogations prior to conducted limited to custodial ment. guarantees that in all criminal 2. The Sixth Amendment prosecutions right of counsel an accused has the to assistance right only the initia- for his defense. The attaches at or after against adversary judicial proceedings the accused tion of indictment, way charge, preliminary hearing, infor- of a formal mation, arraignment. not or The accused is entitled to counsel i.e., trial, only stages prosecution, but at all critical stages might derogate those absence from the where counsel’s right Regardless whether an accused accused’s to a fair trial. custody subjected interrogation, the Sixth is in or to formal right Amendment to at- counsel exists whenever tempt incriminating right not to elicit statements. The does accused, depend upon indulge request by and courts will every presumption against reasonable waiver. cases, clearly 3. In because the defendants were sub- these (After Rem) jected they post- to custodial when made their confessions, right Fifth their Amendment to coun- addition, they interrogated In sel had attached. because were subsequent arraignment, they were also entitled to counsel However, under the Sixth Amendment. the defendants’ re- arraigning magistrates quests appointment to the of counsel implicated only right Sixth their Amendment to counsel. Al- though custody arraign- defendants were at the time of their ments, they addition, subjected interrogation. were specifically any subsequent did not counsel for interrogations might custodial which be conducted. The find- ings of the trial courts that the defendants never invoked their right post- Fifth Amendment to counsel before or their arraignment interrogations they knowingly and that and volun- tarily prior making waived their to counsel their clearly statements were not erroneous. given 4. warnings The defendants were standard Miranda prior post-arraignment However, interrogations. to their these warnings designed only to advise an accused of his Fifth rights. The Sixth Amendment to counsel is considerably counterpart broader than its Fifth Amendment applies stages prosecution. since it to all critical of a Had the counsel, defendants invoked their Fifth Amendment all interrogation further they would have been barred until had an opportunity counsel, they to consult with since did not reiniti- police. Although ate further judges conversations with the and lawyers may appreciate understand and the subtle distinctions counsel, rights between the Fifth and Sixth Amendment the average person requests does not. When an accused an attor- ney, police magistrate, either before a officer or a he does not know which invoking; constitutional he is he therefore expected should exactly not be why to articulate or for what purposes seeking he is counsel. It makes little sense to afford interrogation relief from further to a defendant who asks a police attorney, permit officer for an but further of a defendant who judge. makes an identical ato The Sixth Amendment protected by to counsel is entitled to be procedural safeguards stringent designed at least as as those judicially for the Thus, right. created Fifth Amendment at a minimum, requests where an accused counsel before the ar- raigning magistrate, police may not conduct further inter- rogations accused, until counsel has been made available to the unless the communications, accused initiates further ex- changes, or police. conversations with the If a defendant communications, chooses to reinitiate sufficiently he must be aware of both his Fifth and Sixth Amendment to effectu- right. intelligent knowing, voluntary, waiver of each and ate a interrogation, addition, commencing have before obligation been ar- an accused has an to determine whether raigned requested re- Because the defendants counsel. during arraignments, quested not af- but were counsel their opportunity to counsel consult with before forded an interrogations, post-arraignment confes- their further initiated improperly suppressed. must be obtained and sions were pre-poly- finding in 5. trial court Jackson by improperly in- graph were not confessions clearly promises Post- threats or was not erroneous.

duced confessions, however, polygraph were inadmissible because delay unnecessary prearraignment obtained trial is as a tool to extract the statements. A new was used may required have because admission of all confessions credibility. jury’s made in the determination of a difference Bladel, affirmed. Jackson, reversed. part joined by Brickley, concurring Ryan, Justice Justice dissenting part, stated that because the rule that state- derives made without the assistance of counsel ments analysis from unneces- of the United States Constitution it is sary inappropriate to result in cases on the base the these addition, Michigan the record in Jackson does Constitution. In support majority not defendant’s the conclusion of the that the prearraignment post-polygraph de- statements resulted from lay employed as a tool to them. extract Boyle, dissenting, agreed Ryan that the Justice with Justice support record in Jackson did the conclusion that post-polygraph delay were the result of defendant’s statements designed them, also Jackson’s to extract and would find that post-arraignment repetition statement was a of earlier which he he the shoot- statements in which confessed that had done ing, error, overwhelming light evi- if was harmless in Bladel, dence. In the Sixth Amendment counsel was

waived. (1982) App 118 Mich affirmed. NW2d (1982) App NW2d 613 reversed. Opinion op the Court Right Arraignment — — Request 1. Criminal Law Counsel at — Waiver. police following may interrogated by A defendant not be a request magistrate arraigning for counsel before an until coun- available; sel has been made where a chooses to communications, exchanges, reinitiate or conversations with police, sufficiently he must be aware of his Fifth and Sixth knowing to counsel to effectuate a (US intelligent Const, V, VI; 1963, 1, waiver Ams Const art 20). 17, §§ Right— — Arraignment 2. Criminal Law Request to Counsel at — Waiver. commencing interrogation defendant, Before of a have obligation to determine whether the defendant has been arraigned and whether by for counsel was made (US arraigning magistrate Const, V, defendant before the Ams 20). VI; 1, Const art §§ Right— — — 3. Criminal Law to Counsel Self-Incrimination Waiver. right present An accused has a to have counsel a custodial prior protect conducted to or after privilege against compulsory self-incrimination; once an right, accused invokes the must refrain from further interrogation until counsel is made available unless the accused communications, exchanges, initiates further or conversations (US XTV). Const, V, Ams Right— Adversary Proceedings. — 4. Criminal Law to Counsel right An accused has a to the assistance of counsel for his defense prosecutions in all criminal only that attaches at or after the adversary proceedings initiation of by way charge, of formal preliminary hearing, indictment, information, arraignment; or trial, only accused is entitled to counsel not but at all stages i.e., prosecution, stages critical those where coun- might derogate sel’s absence from the accused’s to fair (US VI). Const, trial Am Right Adversary — Proceedings. — 5. Criminal Law to Counsel regardless to counsel attaches whether an accused is in custody subjected interrogation; or is to formal exists police attempt statements, incriminating whenever the to elicit depend upon request and does not for counsel the accused (US VI). Const, Am Kelley, Attorney Frank J. General, Caruso, Louis J. Appel- General, Solicitor Thiede, and Brian E. Chief Attorney, people late for the in Bladel. Bretz) Appellate (by

State Defender Ronald J. for defendant Bladel. 39 Mich 421

44 Opinion Court J. Louis General, Kelley, Attorney J. Frank O’Hair, Prose- D. John General, Caruso, Solicitor Wilson, Deputy Reilly Edward Attorney, cuting II, Best, George A. and Chief, Appeals, and Civil in people Attorney, Prosecuting Assistant Jackson. Krogsrud) James (by Defender Appellate

State Jackson. for defendant in presented issue

Cavanagh, The common J. after obtained statements is whether appeals these of counsel appointment a defendant has pursuant are admissible at Arizona, 451 v in Edwards enunciated principles (1981), 378 and 1880; 68 L Ed 2d 477; 101 Ct US S Paintman, 418 315 NW2d People v 412 L 995; 102 S Ct cert den (1982), 456 US Ed 2d

I A jury convicted a by Defendant Bladel was first-degree premedi- three counts of July, concur- tated murder.1 He was sentenced to three at trial mandatory Testimony rent life sentences. revealed that three railroad were shot employees 31, 1978, to death on Amtrak December Defendant, Jackson, Michigan. station a dis- gruntled prime former railroad was the employee, 1, 1979, suspect.2 He was arrested on and January 750.316; MCL MSA 28.548. against Shortly The evidence he defendant was substantial. before died, one of the victims indicated that the assailant was a white male. tall, husky person walking away A ticket clerk observed a from the shootings, passerby carrying station after the similarly A soft-sided suitcase. wearing jacket stocky testified that he observed a man cap walking away carrying from the station a case. He entered a (After Rem) twice Detective Gerald Rand on questioned 1 and 2. Defendant was advised January properly of Miranda3 questioning before each agreed both times to talk without an attorney. being Defendant admitted in and around the sta- 31, 1978, tion on December but denied any killings. involvement in the He was released on 3. January 18, 1979, shotgun March the

On used killings weapon was found. The had been pur- chased defendant two by years killings. before the strong The also obtained scientific evidence linking him to the killings. Defendant was ar- Elkhart, Indiana, 22, rested in on March 1979. He waived extradition after being by magis- advised trate of his to a full hearing representa- and tion counsel.

Defendant was driven back to Jackson the same afternoon. Detective Rand questioned again him that evening. questioning, Prior to defendant was advised of properly rights, agreed talk with- counsel, out signed and a waiver form. He did not killings. confess to the

Defendant arraigned 23, was on March Friday, nearby hotel. Defendant had rented a room at that hotel on December 31, 30 and 1978. 1, 1979, January When defendant wearing was arrested on he was nylon jacket cap a blue suitcase, carrying and was a brown soft-sided gun which contained a can of oil. Defendant first claimed station, that he had been nowhere near the but later stated that he had used the restrooms recently there twice. He claimed to have job, arrived in though Jackson to holiday look for a even it was a weekend. 12-gauge shotgun A jacket and duck were found in mid-March 1979. spent Ballistics shotgun evidence disclosed that a shell found at the killings scene shotgun. weapon came from had been purchased by Elkhart, Indiana, years defendant two before the killings. gun jacket Fibers found on the and the duck and in defen- speck dant’s suitcase were identical. A of human blood was also found cap wearing on the defendant was when he was first arrested. Arizona, Miranda v 384 US 86 S Ct 16 L Ed 2d 694 Mich 39 op Opinion the Court Defendant Rand. of Detective

1979, presence in the him be- appointed for be that counsel requested appointment A notice of indigent. he was cause not but was day, firm to a law mailed 27, Defendant March 1979. Tuesday, until received that counsel interim informed was not several although inquired he appointed, had been times. inter- police officers two March

On Although the county in the jail. defendant viewed Rand on this working with Detective officers were had re- case, told they were questioning, the defen- Prior quested counsel. his Miranda again advised of properly dant was that he had he informed officers rights. When counsel, he inquired whether present during ques- attorney to have an wished agreed without tioning. proceed Defendant form, counsel, signed subsequently a waiver killings. confessed challenged admissibility Defendant three statements exculpatory confession Walker4 hearing. The trial court ruled pretrial the that all of statements were admissible because defendant was and properly advised of knowingly had them understandingly and waived 5 each time. appeal, challenged the admis- only On Appeals confession. The of sibility Court upheld trial court’s decision and affirmed the Bladel, convictions.6 People v 397; App 106 Mich 4 (On People Rehearing), 331; v Walker 374 NW2d Mich 132 87 (1965). 5 acknowledged opportunity The court the lack of consult with counsel before does the voluntariness and affect However, required of a effectiveness waiver. it knew which of no case suppression under these circumstances. Appeals rejected 6 The Court of defendant’s assertion that interro gation requests can never a defendant occur once counsel. court People 47 v (1981). granting In lieu of leave to 230 308 NW2d Ap- to the Court of this Court remanded appeal, People v Paint- light in for reconsideration peals Conklin, 412 315 man and Mich (1982). remand, Ap- the Court of On NW2d concluded that Paintman and peals summarily Conklin, read in with this conjunction when order, "compelled” reversal. Court’s remand (1982). granted 325 NW2d 421 We App application appeal. for leave to prosecutor’s 885; 330 NW2d

B Defendant Jackson was charged first-degree with murder, murder,7 conspiracy first-degree commit possession of a firearm during the commission in of a connection with the felony8 death of Rothbe Elwood He was Perry. by convicted jury February, of second-degree murder9 and con- to commit spiracy second-degree murder. He was sentenced to two concurrent life terms.

Mr. Perry was shot and killed in his home in Livonia, Michigan, 12, 1979, on July during an apparent 28, 1979, robbery. On July Mildred Perry (the wife) (Chare) deceased’s Knight Charles were arrested for the murder. Knight subsequently acknowledged knowledgeable prosecutor heavy proving bore a burden in voluntary police may waiver and that have unethically obtaining Nevertheless, acted the confession. waiver was valid because defendant had been warned the Indiana magistrate prior rights, counsel, not to talk to until he met with he had justice contact with system the criminal and understood his signed form, he had a waiver and had not reasserted his interrogation. to counsel Finally, four-day delay be- tween sonable. meeting and the first with counsel was not unrea- kept There was no evidence that defendant was from his attorney in order to obtain a confession. 28.354(1) 750.157a; 750.316; MCL MSA and MCL MSA 28.548. 28.424(2). 750.227b; MCL MSA 750.317; MCL MSA 28.549. 421 op Opinion the Court solic- Perry had Mildred police Livonia

told turn, He, had her husband. to kill him ited that de- Knight maintained defendant. contacted into had broken man another fendant the deceased. shot house and arrested on Michael White Defendant on an 30, 1979, police Detroit Monday, July over to turned They were charge. unrelated the follow- p.m. approximately at police Livonia several times questioned was Defendant ing day. statements.10 three similar gave 31 and July on kill the house to breaking into admitted Defendant Knight had fired maintained Perry, Mr. but the shots. a.m., defen- approximately at August

On after examination polygraph to a dant submitted his Miranda When defen- rights. being advised of he told passed, he had not informed that dant was and White that he was the shooter the examiner gave substan- him. Defendant accompanied had shortly and written statements similar oral tially Hoff, one of the Sergeant William thereafter of the charge officers case.11_ p.m. given 3:30 A similar first oral statement was Defendant’s p.m., retaped tape at 8:48 recorded at 5:52 but was statement was p.m. recording. poor quality prior Defendant of the because rights until maintained that he was not advised of his Miranda shortly taping requested attorney before the first and that he had an during suggested murder. He was also afraid that he would be beaten. interrogation. agreed police the first He to confess because the first-degree might plead to less than that he be able contrast, police several officers testified that defendant being transported from Detroit to advised of his as he was given. They Livonia and denied that before each statement was promis- attorney. They denied had ever also ing threatening him a "deal” or court found the him. The trial testimony officers’ to be more credible. statements, Subsequent reinterrogated Michael these White, brought repeatedly any had Defendant was who denied involvement. interrogation persuade to confess. into the room to White tape subsequently This session was recorded. White arraignment. confessed to the murder after (After Rem) Opinion op the Court Perry, Knight Defendant, White, and were ar- raigned raignment, p.m. During at 4:30 that afternoon. ar- requested that counsel be appointed Sergeants Shirley for him. Hoff and present requested Garrison were when defendant counsel. morning,

At 10:24 a.m. the next defendant was rights by Sergeants readvised of his Garrison and agreed give tape-recorded Hoff and to another statement to "confirm” that he was the shooter. yet opportunity Defendant had not had an consult with counsel. When asked whether he had promised anything been statement, for his defen- replied nothing guar- actually dant had been something anteed, but would be worked out. lengthy hearing trial, Prior to Walker was conducted. The trial court ruled that all of defen- dant’s statements were admissible because he had rights been advised of his Miranda before each given, statement was he never an attor- ney during interrogations, knowingly he and voluntarily time, waived his each no im- proper promises by or threats were made police, and the statements were not the result of any illegal delay arraignment.12 affirming defendant’s conviction for second- degree Appeals upheld murder,13 the Court of findings post-arraign- trial court’s of fact. As to the original statement, ment panel the Court noted that the knowledgeable in Bladel had found a 12However, suppressed being White’s confession was as coerced. Primarily August on the basis the recorded session of ignored the trial requests court found that had White’s improperly plea bargains. for counsel and offered Appeals The Court of vacated defendant’s conviction and sentence conspiracy second-degree for could not have committed to commit murder because the crime logically exist. The Court reasoned that defendant could not conspired to commit a criminal act which definition is premeditation prosecutor without and deliberation. The challenged ruling appeal has not this on to this Court. 421 Mich 39

voluntary almost on counsel waiver distin- Paintman were facts. Edwards identical guished grounds for asked that defendant on arraignment, attorney rather than an police interrogation. made was "not This effectively way exercise the as subsequent such interrogation” preclude any Fifth Amendment to defendant’s unrelated App 649, 658-659; 319 NW2d 114 Mich to counsel. application granted We defendant’s appeal. 885; 330 NW2d leave to (1983).

II argue post-arraignment their Defendants in of their statements were obtained violation rights Fifth and Sixth Amendment to counsel arraigning magistrate because asked appointed these counsel. To determine whether following questions admissible, the statements are must first be resolved:

1) right(s) to counsel at- What constitutional interrogations? post-arraignment tached at the 2) right(s) invoke What to counsel did defendants they requested arraignment? when counsel at 3) right(s) pur- What to counsel did defendants portedly prior post-arraignment waive to their interrogations?

A right guaranteed by is counsel both Fifth and Sixth Amendments to the United States Constitution, 1, §§ 17 as well as Const art v Opinion Court However, are constitutional 20.14 these necessarily See Rhode coextensive. distinct and Innis, 291, 300, 4; fn 100 S Ct 446 US v Island (1980). 1682; 64 L Ed 2d 297 Supreme Miranda, States Court the United Fifth and Four- accused has a that an declared right present to have counsel Amendment teenth protect interrogation during order custodial against privilege Fifth Amendment the accused’s supra, p compulsory Innis, 297; self-incrimination. supra, However, Fifth Edwards, 481. US only counsel attaches when Amendment Henry, custody, United States v an accused is 264, 273, 2183; 65 L Ed 2d fn 100 S Ct 447 US (1980), interrogation. subjected Innis, supra, p Kirby Illinois, 688; 92 406 US 1877; L an accused S Ct 32 Ed 2d Once present to have counsel invokes custodial interrogation, police must refrain is made until counsel from further available, further com- unless the accused initiates exchanges, munications, with the or conversations police. supra, pp Paintman, Edwards, 484-485; su- prog- pra, 412 Mich 526. Miranda nor its Neither eny Fifth to counsel limits the interrogations prior to ar- to custodial conducted clearly raignment. sub- Since defendants they jected made to custodial when post-arraignment confessions, their Fifth their Amendment

right to counsel had attached. guarantees "[i]n all The Sixth Amendment enjoy prosecutions, criminal the accused shall 14 1963, 1, provides part: Const art 17 in relevant § person compelled any "No shall be in criminal case to be witness life, himself, property, against deprived liberty or without nor be of process of law.” due provides part: 20 in relevant Const art § right every prosecution, have the "In criminal the accused shall for his defense . . . .” ... to have the assistance of counsel

right ... to have the Assistance of Counsel for his right However, defence.” only this counsel attaches adversary judicial at or after the initiation proceedings against by way the accused of a for- charge, hearing, preliminary indictment, mal in- arraignment. formation, or United States v Gouv- eia, 180, 187-188; 2292; 467 US 104 S 81 L Ct Ed 2d (1984); Kirby, supra, 406 US 688-689. The only trial, accused is entitled to counsel not but stages” prosecution, i.e., at all "critical stages those might derogate "where counsel’s absence right from the accused’s fair trial.” United Wade, 218, 226-227; States v 388 US 1926; 87 S Ct (1967). Regardless 18 L Ed 2d 1149 of whether the custody subjected in accused is rogation, or to formal inter- the Sixth Amendment to counsel police attempt exists whenever the to elicit incrim- inating Henry, supra, statements. 447 US 271-273. See Williams, 387; also Brewer v US S Ct (1977); 1232; 51 L Ed 2d 424 Massiah v United States, 377 US 84 S Ct 12 L Ed 2d 246 depend upon This to counsel does not request indulge a every the accused and courts presumption against

reasonable waiver. supra, pp Brewer, 404-405. Since defendants were interrogated subsequent arraignment, were also entitled to counsel under the Sixth Amend- ment.

B foregoing analysis demonstrates that defen- arraigning magistrate dants’ appointment to the implicated only

of counsel their Sixth Although to counsel. defendants custody arraignments, at the time their People 53 v Opinion op the Court In addi- interrogation. not to subjected were they counsel tion, specifically request they did which interrogations custodial subsequent any ap- Defendants conducted. might be inca- financially because were pointed counsel unwilling and were retaining attorney pable of 296 Sparklin, See State v themselves. represent (1983). 1182, 1185-1186 85; 672 P2d Or C never found that defendants The trial courts to counsel right Fifth Amendment invoked their interroga- post-arraignment their before or Furthermore, and vol- knowingly defendants tions. their Miranda their rights prior waived untarily the record independent review of statements. Our findings clearly these are does not disclose #1, People v McGillen erroneous. Robinson, (1974); 386 NW2d 551, 557;

Mich 194 NW2d Ill question remains whether defendants’ right of their Fifth to counsel waiver Amendment to coun- also waived their Sixth Amendment Miranda given sel. Defendants were standard warnings prior post-arraignment to their interro- gations. However, warnings designed these advise an accused Fifth Amendment only rights. The Sixth counsel is Amendment considerably broader than its Fifth Amendment counterpart applies stages since it to all critical prosecution. Neither the United States Su- preme Court nor this specific Court has delineated op Opinion the Court procedural requirements for waiver of the Sixth to counsel.15 15Although arguably Edwards involved a statement after obtained commenced, judicial proceedings Supreme criminal had Court specifically question declined to address the Sixth Amendment be Edwards, 480, supra, cause the state court had not done so. 7. 451 US fn (the Similarly, companion Paintman), in Conklin case to a confes days requested sion was obtained seven after the defendant counsel Paintman, arraignment. supra, See 412 Mich 526. This Court did not discuss the Sixth Amendment ramifications of this request since Paintman and Conklin had also their Fifth invoked right prior arraignment. Amendment to counsel to attempted procedural require- Numerous courts have to define what ments are sufficient to ensure that a defendant’s waiver of his Sixth right knowing voluntary, intelligent. Amendment to counsel is People and (Levin, J., dissenting), See cases cited in v Green 273, 302-304, 5-8; (1979), Note, Proposed and fns 274 NW2d 448 and requirements counsel, right for waiver of the Sixth Amendment to 363, 369, (1982). 82 Colum L R fn 42 Some courts have held that a sufficient, valid waiver of Miranda alone is while other courts require specifically the defendant be informed of his Sixth rights by police magistrate. Amendment apparently or a neutral Some cases particular presented, e.g., have turned on the facts whether the defendant or the initiated the conversation which confession, resulted in the or whether the were aware that counsel, arraigned, defendant had been had or had obtained counsel the time the was conducted. Id. generally higher Recent law review articles advocate that standards implemented safeguard be right the Sixth Amendment to counsel. See, (defense e.g., R, supra, p 82 Colum L counsel should be present right counsel); Note, when defendant waives his Sixth right knowing intelligent Amendment to counsel: Standards for waivers, pretrial 738, (1980) (in 60 Boston U L R 762-764 addition to warnings, Miranda formally defendant must be told that he has been charged, thereof, significance attorney and how an could assist him); Grano, Rhode Island v A Innis: need to reconsider the consti- premises underlying confessions, tutional the law of 17 Am Crim L (1979) 1, (police R 35 cannot elicit information from defendant unless notify counsel; exists, attorney seek to if no defendant’s waiver govern right must meet the standards that waiver of the to counsel at pursuant California, 806; 2525; trial to Faretta v 422 US 95 S Ct 45 L [1975]); Right counsel, Ed 2d 562 cf. Constitutional 49 Geo law— (1981) Washington (Miranda warnings L R 409-410 sufficient arrest). Supreme unless defendant indicted before United States Court Thurgood consistently higher Justice Marshall has also advocated a standard for waiver of the Sixth Amendment to counsel. See (Marshall, Wyrick J., dissenting), 54-55; v Fields 459 US 103 S Ct 394; (1982), 74 L Ed 2d 214 cert den añer remand 464 US 104 S Ct 78 L Ed 2d 728

A addressed specifically have Courts which for counsel at requests problem differing results both before have reached after Edwards Circuit was decided. The Second proce- the strictest Appeals adopted has Court Amend- for waiver of the Sixth requirements dural States v Satter- United to counsel. ment ñeld, (CA 2, 1976), 655, 657 defendant’s 558 F2d statements post-arraignment post-indictment though even he had executed a suppressed, were of his Miranda rights. The Court written waiver if that even the statements were volun- reasoned Fifth "they tary purposes 'regard higher with . . . involuntary [to] respect with to waiver of the standard Sixth Amendment applies counsel when the ” has attached.’ safeguards adopted were Specific procedural Mohabir, (CA United States v 2, 624 F2d 1980).16 Mohabir explained higher court that a after required standard for waiver of counsel is judicial proceedings have commenced because government prosecute, to has committed itself for questioning government only can be any facie case. purpose buttressing prima its of his Miranda rights Informing defendant insufficient, the fact that he has been indicted is this not allow the accused may since information " 'appreciate gravity legal position, of his request arraign indirect for counsel to the Mohabir involved an ing magistrate. interrogation, was advised several Before defendant him, rights, charges against the nature of the times of his Miranda given copy and the fact that he had been indicted. He was also the During interrogation, indictment, significance thereof. but was not informed of was asked if he would need counsel questioning appointed continued. The request arraignment. replied affirmatively, but He arraigning magistrate informed of defendant’s represent attorney defendant. and contacted Mich op Opinion the Court urgency lawyer’s

and, of his need for a ” pp Id., assistance.’ its 1148-1150. In the exercise of power, supervisory the Mohabir court held that may validly an accused waive his Sixth right judi- to counsel unless a federal explained signifi- cial officer has the content and right.17 Furthermore, cance of this the accused must be shown the indictment and informed of its significance, counsel, and the serious- ness of his situation should he decide to answer police questions further without counsel. The procedure court believed that this would minimize disputes warnings actually given as to what fully comprehended and whether defendant rights. p Id., 1153. Circuit,

The Fifth hand, on the other has conflicting primarily reached results, because it adequately distinguished has not the Fifth and Sixth Amendment to counsel. In Blasin- game (CA 1979), Estelle, 604 F2d 895-896 inquiry the court stated that the crucial is whether defendant’s assertion of his to coun- arraigning magistrate sel before the was made in subsequent police ques- such a manner tioning "impinged suspect’s on the exercise of the continuing option to cut off the interview.” It was may noted that some defendants wish to have an attorney represent legal proceedings, yet them in police by responding questions wish to assist the attorney being present. without an found that The court Blasingame’s was not an invo- cation of his Fifth Amendment to confer 17 prosecutor give Mohabir court refused to allow the this adversary advice since postponed he is an of the defendant. It consid alternative, i.e., eration of a "outlawing” third all statements made following an indicted defendant an uncounseled waiver. The court approach noted that such an could conflict with the defendant’s represent California, constitutional himself under Faretta v supra. Mohabir, supra, 624 F2d 1151-1153. (After Rem) present during questioning. with or have counsel rights Since he was informed of his Miranda at subsequent interroga- and before his voluntarily intelligently tion, and had waived rights, post-arraignment these statements were Blasingame, however, admissible.18 solely was decided grounds. on Fifth Amendment contrary A result was Estelle, reached Silva v (CA 1982). 672 questioned magistrate 5, F2d 457 There, defendant was arraigning

one hour he after asked the permission attorney. to call his This request unequivocal was construed as an exercise of defendant’s to counsel. The Silva court concluded Edwards, that under were not entitled to initiate further unless first honored defendant’s for counsel. Blasingame, distinguish Like Silva did not between rights defendant’s Fifth and Sixth Amendment counsel.

Shortly decided, after Silva was Jordan v Wat- (CA 1982), kins, 681 F2d 1073-1075 held police, who were not aware that counsel appointed arraignment, properly had been in- terrogated the defendant. Edwards was distin- guished grounds on that Jordan had never respect counsel with to custodial interro- gation attempted questioning; or to cut off he merely wanted counsel him in assist further (The judicial proceedings. Jordan court relied heavily upon Blasingame reaching this conclu- Silva.) sion, but did not mention After examining totality circumstances, the court found voluntarily, knowingly, that Jordan had and intel- ligently waived both his Fifth and Sixth Amend- ment to counsel._ Appeals The Court primarily Blasingame relied on in conclud

ing post-arraignment that Bladel and Jackson’s statements were admissible. 39 421 58 held, in contrast, United the Sixth Circuit (CA 1983), Campbell, 6, 579 F2d States v incriminating thirteen statements obtained that ap- requested and was after defendant minutes pointed noted that The court counsel were inadmissible. interrogating agents had mani- to, if intentional not an an indifference fested disregard for, Sixth Amendment defendant’s right against and Fifth Amendment to counsel primarily compulsory self-incrimination, because present they coun- when defendant were agents improperly "one last The conducted sel. interrogation” defendant had an before round opportunity Such conduct

to consult with counsel. clearly Jordan was distin- violated Edwards. guished Campbell voluntarily, because had not knowingly, intelligently Fifth waived his initiating post- by Amendment counsel arraignment conversation. supreme courts have addressed

Several state conflicting problem, this but have also reached Commonwealth, 220 results. In v Va Johnson (1979), app 158-159; later Va SE2d (1981), 920; 736; 273 454 US SE2d 784 cert den (1981), police initi- S Ct 70 L Ed 2d 231 re- ated quested five hours after Virginia arraignment. Su-

counsel at preme Court held that defendant’s confession was knowingly, intelli- admissible because he had gently, voluntarily waived his to counsel prior interrogation. The court found coercive, officers’ conduct was not arraigned, not aware that defendant had been requested counsel defendant had never interrogation. However, the Johnson court did not distinguish Fifth and Sixth between defendant’s Furthermore, to counsel. prior case was decided to Edwards. Opinion of the Coukt Supreme ultimately States Court

The United certiorari, over a petition denied defendant’s Marshall. He dissent written Justice lengthy to admit the confession the decision believed letter, spirit, if not contrary attempt He the state’s to distin- rejected Edwards. guish Edwards: attempts distinguish to on "The State Edwards two First, points

grounds. pressed clearly it out that Edwards ex- , police only through deal his desire to with counsel, petitioner simply here whereas asked that an However, attorney obligation appointed. an accused is be under no precisely why lawyer. to state he wants a If distinguish wording we were to cases on based the of an request, right accused’s the value of the to counsel substantially would be diminished. As we stated in Fare C., v Michael 442 US S Ct L61 Ed 2d [99 (1979), request per 'an accused’s for an attorney is rights, se an invocation of Fifth requir- his Amendment ing interrogation that all cease.’ "Second, the State notes that Edwards informed the police attorney, petitioner of his desire for an whereas only judge arraignment. informed the at his The State suggests police that since the did peti- not know about request, tioner’s However, improper. was not police easily could have determined petitioner whether already had exercised his counsel; presumably, prosecutor present a at the arraignment. They did not petitioner’s know about request lawyer for a only because made no effort to determine request whether such a had been made. But even if petitioner could not have discovered that expressed had attorney, desire for an I would hold that the confession should not have been admitted. key question in this case is whether petitioner’s waiver of his knowing, counsel was intelligent, and voluntary. In determining whether these satisfied, conditions were the fact were unaware prior request of a only for counsel is tangentially important, rather, relevant. What is is the state of mind of the accused. I think it is no more safe 421 Mich 39 op Opinion the Court accused has that a waiver is valid when an to assume arraignment request judge to the at his prior made a police. In he has made the both

than when cases, authority the accused informs an individual yet attorney shortly like an there- that he would —and after, officials, disregarding apparently his re- state rights.” 454 922-923. quest, ask him to waive his US Sparklin, In State v Or P2d (1983), Oregon Supreme carefully Court differ- rights constitutional entiated between two There, counsel. attorney stemming on forgery charge evening, of a credit card. That from use stolen him an assault police interrogated concerning on the credit card owner and a unrelated factually Mi- murder Defendant waived his robbery. randa to the murder. confessed

The Sparklin initially court found that defen- dant had not either his state or Fifth invoked privilege against to counsel or during arraignment. self-incrimination compulsory session, interrogation Unlike an a defendant is not confronted with an of coercion or at- atmosphere tempts gain during arraignment. admissions explicit request Without a more or one made of, anticipation during, interrogation, or defen- dant’s request for an was deemed to be attorney merely "a matter of routine.” 672 P2d 1185-1186.

Turning right to the Sixth Amendment to coun- Sparklin sel and its the counterpart, state court pursuant interpretations noted that to its earlier Constitution, Oregon the required state was notify attorney prior defendant’s to interro- gation him pres- afford to be opportunity Furthermore, ent. the defendant could not waive right his state constitutional to counsel until he although had consulted with his he could attorney, volunteer statements on his own initiative. 672 P2d Although comparable 1187. Sixth Amendment right clearly defined, to counsel was not so equal scope. it court believed was of 672 P2d dicta, 1188. In the court noted that if defendant questioned against had been for the crimes interrogation owner, credit card would have improper been since no waiver could have been given before counsel was consulted. 672 P2d 1190.19 Wyer, The most recent decision is State v (W 1984). reviewing Va, SE2d 92 After numerous Virginia Supreme cases, the West Court concluded per against there is no rule se waiver of the right Sixth Amendment However, to counsel. it judged by believed that such a waiver should be stricter standards than a waiver of the Fifth right Wyer Amendment to counsel. The court equate general request refused to arraignment for counsel at

with an Edwards direct interrogating officer, counsel to an since the Sixth regardless Amendment attaches of whether a specific request Thus, is made. could questioning requests initiate after a defendant arraignment, long counsel at is as as the defendant willing right. to waive his Sixth Amendment In order to ensure a valid waiver of the Sixth Wyer counsel, court held that a defendant must execute a written waiver being after the arrest, informed of his the nature of charges against rights. him, and his Miranda If the defendant asserts his Edwards sought, interrogation counsel when waiver is available, must cease until counsel is made unless the defendant initiates further communications with the intent to waive his Sixth Amendment 19However, episode since the related to a criminal arraigned unrelated to the one on which defendant was and for which obtained, Sparklin counsel was sion was court concluded that the confes properly obtained. 6Y2P2d 1188. op Opinion the Court interrogating right knowl- officer’s to counsel. The requested edge deemed was determining that counsel has been ingredient” only "one to be valid, rather than was the waiver whether p Id., 105 and fns absolute bar. 23 & 25. argued persuasively Wyer if dissent inadequate protect the Fifth

Miranda waiver is Edwards, it to counsel under Amendment certainly inadequate protect would be right. greater The dissent be- Sixth Amendment an oral or once a defendant makes lieved that magistrate, to the for counsel written notify lawyer from his and refrain must spo- interrogation until the defendant has further If, consultation, the defendant ken to him. after forego counsel, he can then wishes presence so. The officer’s do consideration, he since both deemed an irrelevant prosecutor duty to discover and the have arraigned and if the defendant has been whether safeguards he counsel. Such would guarantee prevent only confessions, but violating voluntary and obtained without con- to counsel. The dissent defendant’s cluded: recognize time to that all defendants without is "[I]t disadvantaged faced constitutionally counsel are when prosecutors government armory police, of armed with a Id., professional interrogators.” p 111. B foregoing demonstrates, no As the discussion approach problem has consistent to the waiver emerged. However, it is clear that no court has per prevents adopted a se rule which a defendant People (After Rem) v waiving right from ever his Sixth Amendment to adopt counsel.20We also decline to such a rule. if It is also clear that defendants had invoked right Fifth their to counsel to the police, Edwards and Paintman would have barred interrogation until all further opportunity defendants had an counsel,

to consult with since did po- not reinitiate further conversations with the lice. Supreme adopted The United States Court protect prophylactic rule to an this being badgered by accused from police custody. in 1044; while Oregon Bradshaw, 462 (1983). v US 103 S Ct 2830; 77 L Ed 2d 405

Although judges lawyers may and understand appreciate and Fifth and Sixth Amendment the subtle distinctions between the the counsel, average person does not. When an accused re- quests attorney, police an either a before officer or magistrate, a tional he does not know which constitu-

right invoking; he is he therefore should not expected exactly why be to articulate or for what purposes seeking he is counsel. It makes little interrogation sense to afford relief from further a defendant who asks a officer for an attor- ney, permit interrogation but further of a defen- request judge. dant who makes an identical to a simple fact that defendant has attorney indicates that he that he does not believe sufficiently capable dealing is of with his adversar- 20Although Supreme sidestepped the United States Court this issue Brewer, 405-406, supra, suggested 430 US it that a Sixth Amend Smith, 454, 471, precluded ment waiver is not in Estelle v 451 US fn (1981). Moreover, 1866; Supreme 101 S Ct 68 L Ed 2d right may Court has stated that the Sixth Amendment to counsel be Wade, post-indictment lineup. supra, waived at a 388 US 237. In addition, defendant has constitutional to waive the assis trial, long tance of counsel at as as the trial court advises the dangers disadvantages self-representation defendant of the and of and knowingly voluntarily the defendant waives his to counsel. Anderson, Faretta, 361, 368; supra, US 398 Mich 247 NW2d 857 op Opinion the Court noted, if Marshall As Justice singlehandedly. ies wording on the solely cases distinguish we are made, it to whom is an accused’s be to counsel would substan- the value tially diminished.

Furthermore, judicial proceed- adversary once commenced, "everything have have ings to lose” "everything the accused gain” is con- "one last round” when counsel arrives: ducted before Illinois, Kirby supra, Justice Stewart noted "As 689-690: 406 US at " proceedings is far judicial 'The initiation of criminal starting point It is the of our from a mere formalism. adversary justice. criminal For it is system whole of government has committed itself to only then that the only positions prosecute, and then that the adverse government defendant have solidified. It is then prosecuto- that rial forces of intricacies of It is this defendant finds himself faced with the a organized society, and immersed in the procedural substantive criminal law. therefore, point, that marks the commence- prosecutions” ment of the "criminal to which alone the explicit guarantees appli- of the Sixth Amendment are . . . cable.’ point "The indictment thus marks a crucial for the

defendant; it point any also marks after which questioning by government of the defendant can only facie presumably imports cient purpose be 'for the buttressing prima ... . . . finding case. of the indictment [S]ince People legally have suffi- guilt evidence of the defendant’s of the crime , charged . . . appropriate police necessities of in- vestigation crime, "to solve a or even to absolve a suspect” urged cannot be justification any as for subse- quent questioning of the defendant.’ Judge Knapp pointed out in United States v "[A]s Satterfield, (SD Supp NY), affid, 417 F 558 F2d (CA 1976): v Bladel Opinion op the Court " prosecution 'Prior to indictment —before the has shape may why suspect taken be reasons —there might rationally agents wish deal with without getting By good graces intervention of counsel. in their being government might useful to the he be able altogether any legal entangle- to avoid indictment or open opportunity grand ment. No such is to him after a jury spoken. point has At that any he cannot make arrangement agents prosecutor with or is court, subject approval by to ultimate and counsel important obviously is to advise him on what terms approval likely forthcoming such is to be and how best ” Mohabir, supra, it.’ to obtain 624 F2d 1148-1149.21

Finally, every it is clear that court has acknowl- edged that the Sixth Amendment to counsel important, judicially so, is as if not more than the created Fifth Amendment to counsel. As protected procedural such, it is entitled to be safeguards stringent designed at least as as those counterpart. for its lesser We decline to follow the reasoning of those cases which have found valid Sixth Amendment waivers after a magistrate counsel has been made to a based solely rights. majority on waivers of Miranda sufficiently distinguish of these cases did not be- underlying tween the concerns Fifth and Sixth Wyer Amendment to counsel. As the dissent noted, if a Miranda waiver is insufficient to ensure a valid waiver of the Fifth Amendment pursuant certainly counsel Edwards, it should inadequate be greater to ensure a valid waiver of the right.

Sixth Amendment C We need not decide at this time whether stricter procedural standards for waiver of the Sixth

21 R, supra, pp See also 82 Colum L 372-373. 39 66 421 Mich required. to counsel are We only minimum, that, need hold at a Edwards/ applies by analogy to situa- Paintman rule those requests an accused counsel before the tions where arraigning magistrate.22 occurs, Once this police may interrogations not conduct further until counsel has been made available to the ac- cused, unless the accused further initiates commu- exchanges, nications, or conversations with the police.23If a defendant chooses to reinitiate com- sufficiently munications, he must be aware of both Fifth and Sixth Amendment to effectu- voluntary, knowing, intelligent ate each waiver of

right. supra, p Bradshaw, 1046; See Johnson Zerbst, 458, 464; v 304 US L S Ct Ed commencing

We further hold that before inter- rogation, obligation have to deter- arraigned mine whether an accused has been duty counsel. This is no more onerous imposed by than that Edwards and Paintman. As People Justice Williams observed his dissent in (1982): Esters, 34, 64; v 331 NW2d 211 rights may defendant’s not be diminished "[T]he merely respond because the state fails to to defendant’s counsel, request for as it should have done. Once he has counsel, asked for the defendant has done all that is power guaranteed within his to secure this right.”_ police may We do not decide under what circumstances interrogate specifically requested appointed a defendant who has arraignment, already counsel at We note or who has consulted with counsel. only these defendants must waive both rights Fifth their post-arraignment Sixth Amendment to counsel before interro gation may proceed. Green, This rule is consistent with the result reached in (1979), 274 NW2d 448 since defendant there reinitiated However, police. suggest further communications with the we do not warnings given in Green are sufficient to effectuate a valid waiver of the Sixth Amendment to counsel. That issue was not presented in Green and we need not decide it here. 67 Bladel Opinion of the Court in officers who were police note that

We also in both Bladel investigations of the charge arraignments when Jackson present were at Although counsel. requested appointed defendants interrogated Bladel were not officers who later informed them of arraignment, present cases, In both request prior questioning. strengthen their cases attempting conducting "one last round” of by Interrogations counsel arrived. of defen- before represented dants who are counsel without knowledge repeatedly counsel’s have been criti- e.g., Campbell, United States v See, 721 F2d cized. Cobbs, (CA 6, United States v 578, 1983); 481 579 (CA 3, 1973), cert den 980; 94 F2d US United States v 298; (1973); 38 L S Ct Ed 2d (CA Springer, 460 F2d cert den 7, 1972), (1972); 409 US 93 S Ct 34 L Ed 2d 125 Paintman, supra, 529-530. cannot simply ignore defendant’s

unequivocal for counsel. As this Court Paintman, supra: noted significance what "Of is invocation of a cherished and, ignored constitutional if it is by the hearer fact, only plight? seems to exacerbate the defendant’s gap embracing As the time increases between the fulfillment, right and its certainty of its existence surely must dim.” fact, defendant Bladel testified that specifically he began to doubt whether he would have counsel appointed because he did not meet with an attor- ney until three after his Fur- days arraignment. thermore, when personnel he asked the jail the interrogating officers whether counsel had appointed him, been they repeatedly pleaded ignorance.

Since defendants Bladel and Jackson 421 Mich 39 arraignments, not their but were counsel opportunity to consult with counsel afforded interrogations, police initiated further before their improp- post-arraignment confessions were suppressed. erly obtained and must be Plaintiffs nevertheless maintain that defendants’ statements suppressed not be because were tried need Stumes, before Edwards was decided. Solem v 638, 650; 79 L 465 US (1984), S Ct Ed 2d Supreme apply Ed- Court refused retroactively wards to collateral reviews of final specifically Court, however, convictions. de- applied clined to decide whether Edwards could be retroactively to defendants whose convictions were yet not final when the decision was issued. question We need not decide this since viola- tion of the Fifth Amendment to counsel is not involved either of these cases. We have merely by extended the Edwards/Paintman rule analogy involving requests to cases for counsel during arraignment, interpreta- on the basis of our tion of both the Sixth counsel counterpart and its state constitutional embodied Supreme in Court’s § Const art 20. Given holding that Edwards established a new "bright test,24 line” fact that this Court has previously precise procedural articulated stan- dards for waivers the Sixth Amendment approaches adopted counsel, and the diverse jurisdictions, other the rules articulated herein apply cases, will to the instant those cases tried opinion pend- after issued, this is and those cases ing appeal on which have raised the issue.

IV argues Defendant Jackson further that his six 24Solem, supra, Paintman, p supra, cf. 412 Mich 530-531. prearraignment confessions were inadmissible be- police cause the deliberately delayed in order to obtain them or the confessions were police promises. induced threats The trial rejected arguments. Ap- court both The Court of peals agreed prearraignment delay not used to extract a confession. Defendant was advised of his Miranda properly before each and, officers, according session to the he volunteered his statements. 654- App 655.25

A Although probable had sufficient cause to obtain a warrant for defendant Jackson’s arrest as a result of Knight’s codefendant state- ments, did not do so. Defendant was "ar- rested” on the charges murder on Tuesday, July 31, at 2 p.m. when he was turned over to the police. Livonia Since defendant was arrested for a felony warrant, without a arresting officers were required bring him magistrate before a for arraignment without unnecessary delay. MCL 764.13; 28.871(1), MSA 764.26; 28.885; MCL MSA People v Mallory, 421 238-239; Mich 365 NW2d People White, v (1984); 673 392 424; 221 cert (1974), NW2d 357 Michigan den sub nom v White, 420 912; US S Ct 42 L Ed 2d 843 (1975). Immediate required, is not however. require Circumstances may delay a brief Court, appeal challenge On to this defendant does not the trial findings properly court’s that he was advised of his before each given attorney statement was arraignment. and that he never an until independent Our review of the record does not disclose findings clearly that these are erroneous. police credible, Since the trial court found the officers to be more following upon discussion of the facts is based the officers’ testi- mony hearing. at the Walker 421 Mich 39 Opinion Court accused’s verification "booking,” quick de- questioning or a brief "story,”

volunteered or com- of release question immediate termine States, 354 US 449, 454- v United Mallory plaint. (1957); 1356; 1 L Ed 2d 455; 77 S Ct Hamilton, 410, 416-417; 102 NW2d 359 Mich has oc- unnecessary delay where Even during curred, or confessions obtained admissions delay unless the will not be excluded period this the statement. a tool to extract as employed White, supra. Mallory, supra, August until at arraigned not Defendant was hours after his p.m., approximately 4:30 26-1/2 after ar- interrogated shortly arrest. He was first riving the Livonia station. information from background obtained initially rights, and informed him of his defendant him, and the manda- charges against nature of the punishment imprisonment of life for first-de- tory him with gree murder. then confronted They Knight’s statement that defendant and another At person approxi- had committed the murder. that he was mately p.m., 3:30 admitted present murder, during the but maintained Knight was with him and had shot the victim.

We conclude that this first oral statement was de- period obtained of unreasonable lay. The officers’ hours questioning occurred 1-1/2 after the purpose arrest and was for the of deter- mining Knight whether had accused de- unjustly fendant. Ericson,

Sergeant Richard another officer testified at the Walker charge case, hearing confession, that after had police this first the sufficient information to obtain an arrest warrant against defendant. Sergeant Hoff testified simi- larly, explained but that could not have obtained a prosecutor’s warrant because the office no one available to and there was was closed request. Shortly warrant after the the authorize given, police was asked defen- first statement it repeat his statement so that could be dant agreed. recording Defendant The tape-recorded. However, began p.m. quality at 5:52 so that asked defen- recording poor police again. the statement The second repeat dant p.m. at 8:48 The taping began content these two statements did not differ substantially recorded prior from that of the oral statement. doubt,

Giving the benefit of the we conclude that no unreasonable delay occurred be- tween the arrest and the time taped these two given. statements were If any unreasonable delay occurred, it was not used to extract a new state- ment, but merely to memorialize the first oral statement.26 statement,

After the taped second defendant was confronted the fact that his version still differed i.e., Knight’s, from defendant claimed that he and Knight were present Knight but was the shooter, while Knight claimed that defendant White committed the murder. The noted that Knight agreed had undergo a polygraph examination following morning defendant undergo one also. Defendant agreed. began examination approximately

a.m. The polygraph examiner informed defendant 26However, way our conclusion in no condones the officers’ actions. confession, coupled statement, Knight’s Defendant’s first presented when with enough arraign more than evidence to for con spiracy first-degree only purpose recording murder. The defen strengthen prosecution’s against dant’s statement was to case him prior arraignment. and his codefendants The result in this case might have been different if the first oral statement had been ob day, tained materially earlier in the if it had differed from the subsequently statements, recorded or if the recorded statements were product interrogation. of more intensive 421 not have to submit that he did and rights his

of polygraph. to the agreed Defendant still the exam. that informed Afterwards, examiner the the urged him to tell truthful and had not been he maintain in order the truth officers other to the exam- then confessed Defendant credibility. White, that and shot the victim that he had iner im- The examiner present. had been Knight, Hoff, who was wait- Sergeant informed mediately thereaf- Shortly room. polygraph the ing outside defendant, advised ter, met with Sergeant Hoff substantially him simi- and obtained rights, of his and written statements. lar oral testimony the officers’ the Primarily on basis the three at the Walker hearing, we conclude during were obtained post-polygraph statements the delay and that unnecessary prearraignment these as a tool to extract employed delay testified that if an ar- Sergeant statements. Hoff morning been issued the rest warrant had arraigned defendant could have been August time, exam. Ser- except polygraph at that for began preparing that he geant Ericson testified 36-page request warrant for all four defendants August p.m. 9:30 a.m. on and finished at On cross-examination, however, that he he stated had and obtained a war- previously prepared request rant for Perry. requests codefendant The warrant for and Perry substantially defendant were simi- lar, except concerning information Knight’s statements, pre- and defendant’s post-polygraph Sergeant confessions. Ericson there- presented after request prosecutor’s office, warrants, obtained the complaints arrived at approxi- the Livonia District Court at mately p.m. arraignment. 4:30 for the

Although thoroughness with which the war- rant commendable, was prepared may be Opinion op the Court infringing cannot justify upon defen- statutory dant’s and constitutional to a on prompt merely grounds "paperwork” their has not been A yet completed. encourage conclusion would ef- contrary dilatory in seeking obtaining prosecutor’s forts authorization. It must mag- be remembered that a required istrate is to issue an arrest upon warrant presentation proper complaint of a alleging the upon commission of an offense and a finding of cause reasonable to believe that the accused com- 28.860(1). 764.1a; mitted the offense. MCL MSA complaint The need not contain fact every which conclusions, to the contributed affiant’s nor must every allegation factual be docu- independently complaint mented. The simply has to be sufficient enough to magistrate enable the to determine that charges are not capricious and are sufficiently supported to justify further criminal action. Jaben States, v United 214, 224-225; US 85 S Ct 1365; 14 L United States v (1965); Ed 2d 345 Fachini, 1972). (CA 466 F2d addition, In complaint may thereafter be amended if additional evidence so requires. The police and the prosecutor here had sufficient evidence to draft a complaint and obtain a warrant before or after shortly defen- dant was need, arrested. There was no pur- poses of arraignment, to determine whether Knight or defendant was telling the truth.

The delay was used as a tool to extract the three post-polygraph Ericson, statements. Sergeants Hoff, and Garrison all testified that they asked to submit to a polygraph so that could determine whether he was telling the truth. Although they did not specifically instruct examiner to obtain statement, Sergeant Hoff testified that they had hoped to obtain another statement if defendant’s original proved confession 421 Mich attempting obviously were The

inaccurate. four defen- all against case their strengthen White, yet not con- had who dants, particularly post-poly- three involvement. any fessed not admissible.27 were therefore confessions graph B record, that conclude we reviewing After finding clearly not err did trial court confessions pre-polygraph three defendant’s promises.28 or threats induced improperly not the post-poly- conclusion prior of our light inadmissible, we need are confessions graph product they were determine whether delay is whether (1983); People NW2d interpreted that this Court now from the issue of voluntariness. vant functions vacated (1965); raignment delay statements have they threats second 156 NW2d ton, dant after after Ms. See have mentioned not informed that offenses. defendant 31. He did mention the discussion occurred Mallory, supra, 421 Mich 239. Plaintiff A review of the supra, inquiry, are obtained. occurred, People Harper, taped or and remanded on Sergeant Wallach, apart Perry. promises the second cooperated an examination in this statement. suggests statement. there would be no reason v statement v Antonio (1968); People from occurred always been held inadmissible Leniency Hoff Although 110 Mich manner, see, e.g., People ultimate test for after the treats the were made Prompt wanting taped police that even preventing improper and possibility testified that no one Sergeant Sergeant 365 Mich obtained other Johnson, and was used could not authorize of was not if the statement polygraph examination. App earlier officers’ arraignment White, v question to grounds to Ubbes, If voluntariness Garrison go if an of a Ericson testified 37, 59, defendant, prosecutor agreed. purposes decisions of supra, mentioned until to testimony plea that voluntary of 374 Mich 113 NW2d jail unnecessary prearraignment to as a fn prearraignment stated that defendant serves analyze whether a v on custodial discussed second-degree App Farmer, tool, 312 NW2d 387 July pleas reveals this Court could or were regardless of when that he told defen- several occurred after 247, 252-253; since exclusionary coerced. 424-425, 31, after the to less serious 132 NW2d interrogations. 331 NW2d However, 380 Mich (1962); pleas that but involuntary delay apart important only murder primarily See, e.g., on he was Hamil reveals if (1981), prear post- rele July may rule 198; this any 730 271 be if Opinion Ryan, J. promises. Although threats or defendant’s three implicated confessions him in the pre-polygraph abettor, least murder as aider and a new required. trial is Defendant testified before the that he did not make the first oral jury statement taped and that the two confessions were induced by police promises. threats The cumulative admitting confessions, effect of seven opposed as three, may have made a difference the jury’s determination of credibility.

V The decision of the Court Appeals of is affirmed in Bladel and reversed in Jackson. These cases are remanded to the trial courts for proceed- further ings consistent opinion. with this Kavanagh

Williams, C.J., Levin, JJ., Cavanagh, concurred with J.

Ryan, J. (concurring in part and dissenting in part). I concur in part III-C brother my Cav- anagh’s opinion exception, however, with the that since the Edwards/Paintman ruling derives from an analysis of the Constitution, United States I find it and, unnecessary indeed, inappropriate base the result in these upon cases Const art 20. §

I do not agree, however, the record in this case supports my brother’s conclusion that "post-polygraph” statements given by defendant Jackson are inadmissible for the reason stated. my judgment, it is appellate mere speculation to conclude the failure arraign Jackson during the morning August 1 was "unnecessary prearraignment delay and that the delay was employed as a tool to extract these statements.” That conclusion carries with it the 421 Mich Opinion Ryan, J.

implicit charge contrived to that the Livonia lawlessly delay on the defendant’s "pa- completing unnecessary pretext of the mere perwork,” extracting purpose of for the actual but knowing proce- him that confessions from more dure to be improper. my judgment, that conclu- unsupported in record. is the sion opinion appellate remove, This Court’s at this years event, after the that the four and one-half enough police may have had evidence at Livonia 9:30 a.m. on recommendation morning August 1 to obtain for a warrant from an assistant prosecuting attorney, Wayne County turn judge, arrest from district to obtain an without benefit might warrant Jackson, of further so, If that it was be correct. the conclusion arraign unnecessary delay defendant Jackson’s might ment until likewise cor afternoon be however, therefrom, rect. It does not follow the decision of the that proceed with Livonia preparation 36-page request, of a warrant polygraph conduct a examination to which defen agreed night before, dant and to Jackson had question following polygraph ex Jackson the failed decisively amination, unnecessarily delayed that the officers demonstrate

arraigning Jackson as a post-polygraph ruse to "extract statements.” plausible, equally us, It is on the record before honestly officers believed prepared request insufficiently and obtain a major warrant in this hire” until "murder for case statutorily required the properly completed warrant approved, previously polygraph completed, scheduled examination was opportunity and the defendant was afforded reconcile, to, to vealed. See United if he the conflicts it re wished Lovasco, States v US (1977) ("[P]rose- 52 L S Ct Ed 2d 752 People 77 v Bladel by Boyle, J. Dissenting Opinion duty charges are under no to file as soon cutors as cause exists but before are probable they satisfied suspect’s will be to establish guilt able doubt”). beyond a reasonable J., J. Brickley, Ryan, with concurred (dissenting). Jackson, v People Boyle, J. I Ryan’s with of part concur Justice opinion regarding post-polygraph I statements. would find appellant also that Jackson’s post-arraign- statement, ment which it undisputed is was a repetition the oral and written statement on 1 in given August which the defendant con- shooter, was, that fessed he was the in light of the evidence, overwhelming error, if harmless beyond California, Chapman v a reasonable doubt. 386 US 18; 87 824; S Ct L Ed 17 2d 705 I would find People v Bladel that the Sixth Amendment counsel, which the people concede had attached, Williams, was waived. Brewer v 430 US 387; 1232; 97 S 51 (1977), Ct L Ed 2d 424 itself permits waiver. In concluding that waiver did not occur, noted, Justice Stewart majority "The Court of Appeals hold, did we, nor do case, under the circumstances of this Williams not, could without notice to counsel have waived under the Sixth and Fourteenth Amend- Id., ments.” pp 405-406. Justice Stewart further emphasized that preface detective "did not this effort elicit response] by telling Williams that [to he had a right presence to the of a lawyer, and made no effort all to ascertain whether Wil- liams wished relinquish 430 right.” US 405. In it is clear that when the defendant mentioned he had asked for appointed attorney he was if asked he wanted an attorney present and the defendant stated that he did not need one. I 39 Dissenting Opinion Boyle, J. of a relinquishment intentional find an

would known right. of the importance recognize I both

While appeal and the to counsel Sixth Ari- v Edwards application symmetrical zona, 1880; 68 L Ed 2d 101 S Ct US Paintman, (1981), fur- (1982), I am unconvinced without NW2d Supreme States guidance from the United ther constitutionally obligated that we are Court this reach result.

Case Details

Case Name: People v. Bladel

Court Name: Michigan Supreme Court

Date Published: Apr 1, 1986

Citation: 365 N.W.2d 56

Docket Number: Docket Nos. 69615, 69749. (Calendar Nos. 7, 8)

Court Abbreviation: Mich.