People v. Brown

People v Brown 535 PEOPLE BROWN 2, 1993, Docket No. 139411. Submitted November at Detroit. Decided 6, 1994, September sought. appeal at 9:00 a.m. Leave to following joint Kevin A. Brown was convicted a bench trial in the Court, Shamo, J., Recorder’s John Detroit M. two of counts of murder, second-degree one count of assault with intent to possession robbery, during commit armed and of a firearm the felony. of a commission The defendant was to sentenced concur- prison twenty forty years to rent terms of the murder for and convictions, years assault and to consecutive two term of felony-firearm appealed. the conviction. The defendant Appeals Court of The held: The defendant’s and convictions sentences are affirmed. J., Gribbs, P.J., Deegan, opinion P. E. in an with which n only, concurred the result stated: against privilege compelled 1. The defendant’s self-incrimina- tion, 1963, guaranteed 1, by protected by as Const art 17 and § Arizona, procedural safeguards 436; the 348 in Miranda v US (1966), right 76 L 86 S Ct Ed 2d 694 and the defendant’s counsel, 20, 1963, 1, to as Const secured art were not § interrogation violated defendant’s second while in police custody conducting interroga- when the officer tion failed to inform the defendant that an retained waiting his mother was and available to confer him. suppress correctly The trial court refused to evidence voluntary interrogation defendant’s statement the second session. denying err in 2. The trial court did not the defendant’s request separate admitting for a or in trial evidence of the statements codefendants. principle 3. The defendant’s do not sentences violate the proportionality. J., dissenting, Shepherd, stated that counsel 1963, 1, compelled right against and under art § encompass self-incrimination under Const § attempts be retained informed about counsel’s suspect. should be and contact The case reversed remanded trial at for a new which evidence of the defendant’s statement interrogation at the session second would be excluded. Opinion Deegan, of P. E. Kelley, Attorney General, L. Frank J. Thomas Casey, General, O’Hair, D. Solicitor John Prosecut- ing Attorney, Timothy Baughman, A. Chief of Training, Appeals, Nancy Research, A. Prosecuting Attorney, peo- Neff, Assistant for the ple.

Cyril appeal. Pessina, C. for the defendant on Shepherd Gribes, P.J., Before: P. E. and and Deegan,* JJ. agree Shepherd’s Judge

P. E. J. I with Deegan, recitation of the facts. Shepherd agree Judge

I also with that we respect should defer to the trial court with findings to its regarding police activity of fact the questioning the leged of the defendant. Defendant al- police engaged variety

that the in a of im- proper including misrepresentation behavior, attorney. of the defendant’s whereabouts to an Shepherd Judge agree, concluded, and they deliberately "there is no evidence that tried [the] to conceal defendant’s location.” Post at 547. agree important I further the most issue regarding the defendant’s second statement is [failure] "whether the officers’ to inform attorney’s attempts post [an] him,” to contact privilege against compelled 547, violated the self- guaranteed by 1, incrimination as Const art protected by procedural safeguards § 17 and in Arizona, 1602; Miranda v 384 US 86 S Ct 76 L (1966), Ed 2d or the to counsel as secured 1, § 20, or both. agree Shepherd Judge However, I do not justify extending the facts of this case privilege against compelled self-incrimination. I do

* judge, sitting Appeals by assignment. Circuit on the Court of v Brown op Opinion Deegan, P. E. required police in this case were not believe interrupt interrogation the defendant in their attorney, him that an hired a order to inform asking party, I find it to talk with him. third knowing significant a that the defendant made against privilege voluntary self-in- waiver of his crimination, police that he never indicated to the attorney. an

that he wanted important in The facts of this case differ several respects People Wright, from those (1992). Wright, police 140; 490 NW2d did not advise defendant of his constitutional rights custody until he had been for over five police case, In the instant hours. read the rights shortly voluntarily defendant his after he police walked into the station. The in this police Wright, case, in contrast to the reread to rights questioning the defendant him before here, second time. The defendant unlike the defen- Wright, signed in dant a standard constitutional rights notification form time each before he was questioned. police they The stated that when ad- rights vised the defendant of his constitutional he rights; declared that he understood those he did appear any not to be under the influence of chemi- cooperative. substance, cal dant never asked to a and he was The defen- telephone family or member lawyer. Wright, police engaged in coercive behav- deprived They only food,

ior. the defendant of gave They placed custody. him some water after nine hours in room,

the defendant in a small four by get feet, feet five in order him to confess. In they charge addition, threatened to the defendant first-degree murder In- unless he confessed. concurring opinion deed, Justice in his Brickley, Wright, Wright’s in it makes clear that statement suppressed should have been because "he was Opinion P. E. Deegan, of deprived sleep, friendly food, of and contact with outsiders, the fact he combined with was not informed of available retained counsel.” Id. at 172. expressly Brickley "[t]he Justice relied sum on of these circumstances” in his decision to concur in Wright. the result in Id. police present provided in

The case break- engage any fast for the coercive and did not in Wright. behavior similar in The police justly. treated the defendant That is evi- denced statement, the defendant’s second in response which he wrote the he had been treated. "fair” in word to how egregious Because the facts in this case are not Wright, adopt and are dissimilar to in those dissenting Wright, rationale of Justice Riley, supra JJ., at 172-180 and Griffin (Boyle concur- ring). dissenting opinion, Riley In her Justice relied Supreme opinion on the United States Court’s Burbine, Moran v 412; US 106 S Ct L (1986), Ed 2d 410 which was written Justice majority. O’Connor for the six-member Id. at 415- Judge suggests adopt Shepherd 434. that we Jus- analysis Wright, supra tice Mallett’s at 142- 155. I am convinced such a decision would establish a "rule that focuses on how the treat an that has no relevance —conduct degree compulsion experienced by at all to the during interrogation the defendant [and] would — ignore only both Miranda’s mission and its source legitimacy.” supra Moran, at 425. Judge sug- Shepherd’s Moreover, I believe that of) gestion multiplicity would create a needless and confusing legal questions Michigan for courts applying example: Miranda, when for To what extent should the held be ac- v Brown Opinion op P. E. Deegan, has coun- knowing that the accused for countable house enough in the station it that someone sel? Is knows, himself interrogating the officer or must suspect? Do to contact the of counsel’s efforts know concerning suspect to talk to the efforts counsel’s trigger obligation to investigation criminal one interrogation may before the defendant inform proceed [Moran, separate matter? wholly on a supra at 425.] suggestion Judge Shepherd’s short, would cre- concerning Michigan Mi- a Gordian knot

ate rights. randa distinguishable of this case are

Because the facts Wright that the and I am convinced those from opinion majority reasoning in Justice O’Connor’s superior, of the I find the decision in Moran is police interro- while not to inform attempts attorney’s gating contact him, of an compelled privilege against him did not violate guaranteed by Const as self-incrimination procedural protected by the safe- 1, § 17 and art Accordingly, guards I find no error in Miranda. suppress the defen- not to the trial court’s decision statement. dant’s second right to counsel as I am also convinced that 1, § 20 not include does secured right counsel, retained informed that be suspect. party, attempting to contact third is that a defendant has no general The rule [is] right until attaches automati- right to counsel cally after judicial of adversarial the initiation exception proceedings. . . . criminal [An] [exists] . procedures . . because pretrial identification these unique elements of confrontation interroga- custody . present. . . Normal procedures tions have under the analyzed never been yet has not simply because counsel attached supra investigative stage. [Wright, at this 540 535 op P. E. Opinion Deegan, (Justice dissenting opinion Riley 173, n 4 in an joined by Boyle Justices Griffin).] Therefore, I not do find that the defendant’s second statement right was obtained violation guaranteed by 1963,

to counsel as Const art Accordingly, 1, § 20. I find no error in the trial suppress court’s refusal to the defendant’s second statement.

Notwithstanding Michigan established case law Judge contrary, Shepherd to the would extend the encompass suspect’s "right to counsel to attempts [a] be informed about to contact retained counsel’s support [him].” Post at 548. In of his Judge Shepherd view, relies on the decisions of foreign jurisdictions: People three West, v 81 370, NY2d (1993); 599 372-374; NYS2d 615 968 NE2d Hattaway, (La,

State v 796, 2dSo 1993); Lefthand, 799, and State v 488 NW2d 801- 1992). (Minn, I all believe that of those cases inapposite. West, are In the defendant had an existing attorney-client relationship, both Hattaway and Lefthand involved defendants who court-appointed attorneys. present had on case, In the hand, the other did not have an attorney, attorney, did not ask an and did not attorney retain an tained on his own. Counsel was re- by party, by a third not defendant. foreign jurisdictions find no reason to turn to light our own established case law. The creation of such a novel extension would not advance the development Michigan of a sound constitutional right to counsel. summary, I conclude that defendant’s second

incriminating police, statement to the made while by party attempted an retained a third against privilege him, contact compelled did not violate the guaranteed by self-incrimination as Brown by Shepherd, J. proce- 1, 1963, protected 17 and art Const § to coun- in Miranda or safeguards dural Ac- 20. § guaranteed as sel suppress refusal trial court’s cordingly, affirmed. be should statement second defendant’s not err court did the trial I find Finally, separate for a request the defendant’s denying statements the codefendant’s admitting trial or Etheridge, 196 v People trial. bench in a joint (1992); People 490 43, 52-53; 492 NW2d App Mich 430 Butler, 63, 66; 483 NW2d App 193 Mich v concur- (1992). the defendant’s conclude I also imprison- twenty forty years’ of to rent sentences do convictions assault the murder and ment of proportionality. the principle violate not Milbourn, 435 Mich 630, 659-660; 461 NW2d (1990).

Affirmed. only. in the result I concur P.J.

Gribbs, appeals (dissenting). Defendant J. Shepherd, trial1 of two bench joint at a from his conviction murder, 750.317; MCL second-degree of counts intent 28.549, of assault with one count MSA 28.284, 750.89; MSA MCL robbery, armed commit the commission a firearm possession and 28.424(2). I 750.227b; would MSA MCL felony, of a Judge from reverse, dissent respectfully thus opinion. Deegan’s

i arose out charges against The Lindsay Bundy On Jackson. Lorenzo deaths Stubbs, Dwayne codefendants, also were Stubbs and Darrell Two joint matter at the charged with this in connection and convicted pursued appeals under Docket Nos. been Their have bench trial. 139412 and 139413. Bundy deaths, the afternoon before their son left home in their mother’s and Jack-

Mustang. Police Bundy’s body alley later found in an gunshot hands tied behind his back and a wound Bundy’s pulled up to the head. shirt was hanging back, shoulders in the and his coat was body from one arm. Jackson’s also was found alley dumpster, gunshot a near with two Bundy wounds to the head. Neither had wallet or nor Jackson any money when their bodies were Mustang alley, found. The was found in the but no keys were ever recovered.

After defendant was arrested in connection with gave police. matter, he two statements primary Those statements formed the basis for his given convictions. The first statement was to Ser- geant Bivins, James while the second statement given Presley. to Lieutenant William

During hearing, the Walker2 Bivens testified voluntarily that defendant came into the station, where he was arrested. Bivens testified that defendant was write, able to read and he that appear any did not to be under the influence of substance, chemical and that he conversed coher ently. Bivens also testified that defendant was rights signed advised of his constitutional and notification-of-rights standard Further, form. Bi promises vens testified that no threats or were directed toward defendant.

Initially, only questioned defendant was about Bundy’s death.3 defendant’s first statement to police, Bundy he said that he shot in self- Bundy attempted defense after to rob him. Defen- 2 (On People Rehearing), v Walker 374 Mich NW2d (1965). only investigating Bundy’s Bivens was concerned with death be Bundy’s body day body. cause found Appar was before Jackson’s ently, yet suspect defendant not was a in Jackson’s murder. v Brown by Shepherd, According sign to this statement. to dant refused Bivens, that he indicate did defendant at no time police, or that he to the to talk not want did Although attorney. uncertain an to talk to wanted acknowledged precisely that at when, Bivens about some spoke mother, point who defendant’s he with going an was to retain that she indicated emphasized that defen- It be should for defendant. eighteen years he was arrested old when was dant interrogated. and speak defendant was

The second officer spoke Presley. Presley the follow- with defendant questioned point, ing day. was At defendant According Pres- both deaths. in connection with given ley, morning, breakfast had been defendant Presley cooperative. testified he was given any or not threatened defendant was promises; Presley that defendant ascertained Presley he advised testified that to read. was able ques- rights before constitutional of his defendant tioning matter, and defendant in the defendant notification-of-rights signed again form. acknowledging gave a statement Defendant then participation however, crimes; defendant in the participated only he was because said that he coerced In the initial version to do so. the other codefendants one of given by defendant

of events Presley, attacked stated that he was guy.” Then, decedents, "the tall one of the along and shot individual —"D”—came another pleas despite not defendant’s attacker defendant’s that defendant him. D then demanded to shoot dispose body. help Meanwhile, the tall him grabbed by along guy’s D D. and was came brother Dor to watch the brother then told defendant the man to Defendant told kill defendant. would away. ground D D When while lie on the returned, Then, a short the man’s hands. D bound by Shepherd, J. help later, D time him while forced defendant guy’s attempted guy, tall move the tall brother to run. D demanded defendant shoot handing himself, brother or be shot defendant gun. guy’s Defendant shot the tall brother twice. making statement,

After this initial defendant Presley change begin- told ning that he wanted to story. version, In the revised defendant guy said that two men—the tall and his brother— approached looking they had defendant while were somebody. person for Defendant told that the them they there, was not and so started to leave. How- they leaving approached ever, as D were with a gun stick-up.” and said "this is D took defen- coat, dant’s thing keys and ordered defendant to find some- up which tie D others. took the Mustang, to the and demanded that defen- point, guy dant move the car. At one the tall attacked defendant awith broom—and was guy. money drugs D D when shot the tall took guy. tall from the Defendant stated that the re- way mainder of the events occurred the same as he had recounted earlier.

Presley hearing testified Walker that init- giving statement, after his second defendant signed page all answers, ialed of his each However, the statement. out his later crossed signatures. Presley testified that defendant crossing signatures said that he was cause his mother had out his be- sign any- him not

told thing if she was not there.

Presley then testified that he inwas the middle taking defendant’s statement when he was in- attorney formed defendant was ley another officer that an

present at the station. Pres- attorney did not allow the access to Presley nor did tell defendant that an immediately Presley Rather, available. contin- v Brown by Shepherd, Dissent J. shortly Then, ued to take defendant’s statement. learning presence, attorney’s Presley after requested attorney. if asked defendant he had an According Presley, defendant wrote down "no” handwriting response ques- in in his own to that appears sought attorney it tion. While that judicial attempt gain intervention in an access that was not until after defendant’s completed. statement was When defendant took the stand the Walker hearing, surrounding his version of the events interrogation was different from that of the offi- cers. Defendant signatures testified that he crossed out his because,

from the second statement reading carefully Presley’s after it more ab- Presley typed sence, he discovered that had not everything that defendant had said. Defendant given prom- testified that he was ises of threatened exchange leniency for his statements Presley. Although officers other than Bivens and acknowledged writing defendant response the word "fair” in during

to how he had been treated interrogation, response second only pertained he stated that his by Presley,

to his treatment Further, not the other officers. that he had asked for an defendant testified

attorney both interrogations. writing Defendant denied "no” in response his second statement to whether he requested attorney. had an Defendant testified placed margin that when he his initials on question concerning request next to the attorney, his for an response line was blank at the time. gave Further, defendant testified that before he his second statement he had been told his attorney mother that she had called an for him. kept asking Defendant testified he attorney about an because he knew that his mother had called one. 206 Mich

The trial court denied defendant’s motion to suppress finding statements, the officers required were not to inform defendant that his present. Following joint bench trial, defendant was convicted as noted above. appeals right. Herein defendant as of

ii appeal, argues prosecu- On proving tion did not meet its burden of that his given voluntarily statements were and without argues police Further, coercion. defendant that the should not be allowed to benefit from their im- proper tactics. In addition to the fact that police present did not tell defendant that his interrogation, the time of alleges police deliberately also misrepre- sented to defense counsel the defendant’s location police headquarters. when counsel arrived at appeal, On this Court must review the trial court’s determination of voluntariness after exam- ining record, entire and must make an inde- pendent totality determination under the of People circumstances. Brannon, v 194 Mich (1992); People Wright, 486 NW2d 83 v (1992). 441 Mich 147; NW2d 351 However, gives great this Court deference to the trial court’s credibility assessment of the witnesses, of the findings its of fact will not be reversed unless clearly supra Brannon, erroneous. at 131. Turning to readily the facts case, of this it is apparent the trial court viewed defendant’s testimony concerning skepticism interrogation with more police

than that of the officers. The Brown police promises officers testified that no threats or obtaining They were made the statements. also testified that defendant morning received breakfast in the giving statement,

before his second appeared cooperative. he Both officers testified that competent defendant rights, seemed to understand signed notifying and that he a written form rights against him silent, of his to remain self- incrimination, and to the counsel, assistance of among Further, others. both officers testified that point request at no did defendant the assistance of respects, Thus, counsel. in these we must defer to credibility. the trial court in its assessment of Id. I clearly do not believe that the trial court erred in findings strongly fact, these which are corrobo- testimony police rated officers. Id. argues police employed Defendant also improper by misrepresenting tactics defendant’s whereabouts allegation However, defense counsel. this simply supported by

is not the record. may While the officers have refused defense coun- sel access to there is no evidence that they deliberately tried to conceal defendant’s loca- Thus, tion. I would conclude that the officers anything misrepresent did not do defendant’s attorney. location to Id. importantly,

However, most there remains the question whether the officers’ refusal to inform attorney’s attempts defendant of his to contact respect improper. him ques- was in some On this compelling analyses tion, I find of Chief Jus- Cavanagh Wright, tice and Justice Mallett in supra respectively. 142, at 155 and While four justices reversing previ- concurred in this Court’s Wright,4 favoring ous in decision those reversal gave separate legal doing three bases for so._ 4 Supreme previous opin The Court’s decision reversed this Court’s ion, People Wright, (1990). App 566; 186 Mich 465 NW2d 339

IV independent suppress First, basis, on an I would defendant’s second statement and reverse his con- analysis victions under the set forth Chief Jus- Cavanagh’s concurring opinion Wright, tice supra agree suspect’s right is, at 155. That I that a encompas- to 1, counsel under § Const art right ses the to be informed about retained coun- attempts suspect. Wright, sel’s to contact the su- pra concurring). (Cavanagh, C.J., at 160-161 Wright

The facts in and the case at bar are strikingly similar. In both cases the defendant was attempting not aware that retained counsel was interrogation. contact him a custodial attorney both cases the refused the access to and refused to inform the defen- attempting dant that his to contact attorney sought him. In both cases the defense judicial intervention, but it was to no avail be- completed cause the defendant’s statement was the interim. agree Cavanagh with Chief Justice that "cus- interrogation repre-

todial of an accused who is prearraignment sented stage counsel” is a "critical” prosecution triggering our state’s constitu- right Wright, supra tional counsel. at (Cav- concurring). anagh, C.J., The fact that retained attempted suspect counsel may has to contact a suspect’s influence the decision whether to consult Refusing suspect the advice of counsel. access to attempted the information about counsel’s contact subsequent suspect "render[s] statements derogation inadmissible as taken in of the Wright, supra counsel.” concurring). at 164 (Cavanagh, C.J., expanded scope While this to coun- sel fairly under 1, § 20 is novel to People v Brown Michigan jurisprudence, a number juris- of other dictions also have recently commented on the scope of their state’s right constitutional to coun- sel.5 particular bar, Of relevance to the case at West, 370, 373-374; 81 NY2d 599 NYS2d (1993), 615 NE2d 968 Appeals the Court of New York concluded that New York’s counsel attached when the accused retained coun- sel: right to indelibly counsel attaches where [T]he uncharged an individual has actually retained a

lawyer has or, in the matter at custody, issue while in requested lawyer in that matter. The Court of Appeals of New York West further expounded on the right to counsel as follows: helps The equalize counsel the bal- ance and assure intelligent. any knowing waiver is . . . Additionally, right protects against undue any existing interference with attor-

ney-client relationship. at [Id. 374.] West, retained counsel previously had been present at the defendant’s lineup, and counsel instructed not to question the defendant. Thus, while there is some distinction between the case bar where counsel had not yet had any contact with I would also emphasize the defendant in the case at bar only eighteen years old. It would not be unreasonable to conclude expectation had an that his family arrangements would make retained counsel. The record is regarding unclear whether defendant actually knew that his mother had secured However, counsel for him. regardless Lefthand, 5 See, e.g., 488 NW2d State v Hattaway, 801-802 621 So 2d (Minn, 1992). (La, 1993); State v by Shepherd, J. Dissent arranged precisely counsel, who for the most

compelling very police offi- fact remains that interrogating cers who were that defendant’s retained counsel was available at the defendant —and the the defendant knew

immediately speak and wanted to with station police interroga- continued the informing tion without sel’s defendant of retained coun- availability. juncture,

At this Judge would make the observation Deegan’s analysis dependent that upon seems "[cjounsel his statement was retained party, a third not the defendant.” Ante at 540. I believe that ing. party” this is a distinction without mean- response, emphasize I would that the "third mother,

in this case was defendant’s only eighteen years that defendant was old at the interrogation. Notably, although time of uncertain precise timing, Sgt. about Bivens acknowl- edged point spoken that at some he had mother, defendant’s who indicated that she was going to retain an for defendant. itAs out, turns defendant’s mother did fact hire the attorney. dependency This theme of defendant’s upon family guidance for in this matter was repeated testimony. Presley in other Lt. testified crossing that defendant said that he was out his signature from the second statement because his sign anything mother had told him not to if she circumstances, was not there. Under these I would unfairly conclude that defendant was denied knowledge attempts of his retained counsel’s contact him. Cavanagh’s

I would concur with Chief Justice reasoning Wright, supra at 155. On this basis suppress alone I would defendant’s second state- police ment to and reverse his convictions. suppress I would also defendant’s second state- v Brown ment and reverse his convictions under the analysis set forth by Justice Mallett Wright, supra at 142. That is, while a suspect’s Fifth right against Amendment self-incrimination does not require police to disclose counsel’s at tempts Burbine, Moran v to contact suspect, 412; 475 US 106 S Ct (1986), 89 L Ed 2d the Michigan counterpart, 1, 17, § may and should be extended to so require it. Wright, supra at 154. As noted by Justice Mal a number of jurisdictions lett, other have recog nized that "it is necessary a suspect to be informed of an attorney’s attempted contacts.” Wright, supra at 148. To update the list of cases from other jurisdictions, I would cite one addi tional, recent case from Supreme the Court of New Reed, State v Jersey, NJ 627 A2d 630 (1993).

Reed involved facts similar to those the case Therein, at bar. a defendant was denied access to information that counsel retained by his family was immediately available at the time of interro- Id. at 243. The Supreme Court of New gation. Jersey made following the enlightening comments, id. 255-256, 257:

Our decisional law on the right against state self-incrimination is based on understanding the the privilege is defined the ancillary rights, interrogation. Moreover, right like the to counsel custodial protections the afforded by which ancillary rights provide those a metric strength to measure the of privilege. the may courts differ on the [W]hile rationale for imposing duty to inform suspect a that an 206 Mich confer, waiting they agree on one attorney is supervening principle: interrogation atmosphere of custodial protecting inherently is coercive and right against self-incrimination entails coun- the teracting Thus, although coercion. "knowl- assessing the factor in edge” always is a relevant right against validity of a waiver of the self-in- crimination, self-incrimination, against compelled because is "knowledge” can be best under-' "voluntariness,” which stood as a condition itself denotes the quently, "compulsion.” absence Conse- ostensibly imposed to enhance standards Miranda suspect’s "knowledge” rights of the also counteract Some courts have coercion and assure "voluntariness.”

recognized that connection. ... Accordingly, practical the most means to over- through come coercion will be normative rules reasonable, specific, apply objective that dards. stan- Although we cannot conclude with confi- suspect’s knowledge dence that a is that an able, willing represent him ready, or her suspect’s knowledge will enhance the to important of the counsel, knowledge surely play will an "dissipating] compulsion role and, interrogation inherent custodial in so do- ing, guard against abridgment suspect’s” right against self-incrimination. . . . requiring believe that to inform [W]e suspect presence attorney’s greatly of an will temptation, reduce the ities, on enforcement law author- pressure suspect into a confession attorney gains suspect. before access to the [Emphasis original.] in I Reed principles find the enunciated in compel- accord with Justice Mallett’s ling, and in opinion Wright. in in Wright, As it cannot be said here that defendant knowingly waived voluntarily right against his self-incrimination under Const 1963, 1, without art access to the information § that retained counsel was available and was at- v Brown tempting majority’s him. contact I find the analysis particularly given troublesome defen- young age, dependency upon dant’s and his family suppress Thus, for assistance. I would also defendant’s second statement and reverse his con- victions on this basis.

vi Finally, light split opinion of the over the applicable legal principles Wright, discussed in supra, a brief discussion of Justice Brickley’s concurring opinion appropriate. also seems Justice Brickley question seems to focus on the whether right the defendant’s waiver of the to remain truly voluntary totality silent was under the Wright, supra J., circumstances. at 172 (Brickley, concurring). Apparently, Brickley Justice would analyze police conduct here for its overall regard nature, coercive and would the denial of attorney’s attempted information about an con- only analysis. tacts as one factor Because present any case does not involve "coercive” activity by other than the denial of counsel, information about defendant’s retained it Brickley is unclear how Justice would rule in this Wright certainly greater case. seemed to involve deprivation coercion, overall food, with the "of sleep, friendly and contact with outsiders.” Wright, supra concurring). J., at 172 (Brickley, disagree implication with the in Justice Brick- ley’s opinion Wright suppression only is warranted in cases of extreme coercion. I believe to counsel—either under 1963, 1, § art 20 or as an element of the against self-incrimination under Const finding § 17—is so fundamental that a of extreme necessary coercion is not where a defendant is deprived of information about retained counsel’s availability attempted contacts a custo- interrogation. dial summary, I would reverse defendant’s convic- parts v,

tions for the reasons discussed iv and supra. Judge Deegan’s respectfully dissent from opinion and would remand for a new trial at which the second statement would be excluded.

Case Details

Case Name: People v. Brown

Court Name: Michigan Court of Appeals

Date Published: Sep 6, 1994

Citation: 522 N.W.2d 888

Docket Number: Docket 139411

Court Abbreviation: Mich. Ct. App.