PEOPLE v CRUSOE
Docket No. 84017
Supreme Court of Michigan
Argued June 7, 1989. Decided December 7, 1989.
433 Mich 666
In an opinion by Justice BOYLE, joined by Chief Justice RILEY and Justices BRICKLEY and GRIFFIN, the Supreme Court held:
The defendant‘s request for counsel at his arraignment on charges of breaking and entering and assault invoked his Sixth Amendment right to counsel and prohibited subsequent police-initiated postarraignment interrogations on those charges. The request did not invoke his right to counsel under Miranda v Arizona, 384 US 436 (1966), in the context of a custodial interrogation, and therefore a subsequent police-initiated interrogation concerning an unrelated bank robbery charge was not prohibited. Thus, his voluntary and knowledgeable waiver of Miranda rights during the interrogation was valid, and his statements were admissible at trial.
1. Once a defendant has been formally charged, the Sixth Amendment guarantees the right to counsel at postarraignment interrogations on those charges. The Fifth Amendment prohibits police-initiated interrogation only after a suspect has invoked the right to counsel under Miranda during a custodial interrogation. While a defendant remains in continuous custody, a request for counsel during a custodial interrogation on any charge cannot be circumvented by police-initiated interro-
2. In this case, the defendant did not invoke his right to counsel under Miranda in the context of a custodial interrogation. His request for appointed counsel was made as a routine arraignment matter. Thus, a subsequent police-initiated interrogation regarding the bank robbery charge was not prohibited, and his waiver of his rights and his statements implicating himself in the robbery were admissible at trial.
Reversed.
Justice CAVANAGH, joined by Justices LEVIN and ARCHER, dissenting, stated that because the defendant invoked his Fifth and Sixth Amendment rights to the assistance of counsel when he requested appointment of counsel at his arraignment on unrelated charges prior to questioning by authorities, his statements made in response to police-initiated interrogation should have been suppressed.
A suspect who has expressed a desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available, unless the accused initiates further communication, exchanges, or conversations with the police. A suspect‘s waiver of Miranda rights at police-initiated custodial interrogation following a request for counsel at an earlier interrogation is not sufficient to demonstrate that a waiver of the Fifth Amendment right to remain silent was voluntary. It is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect‘s own instigation, is itself the product of the inherently compelling pressures and not the purely voluntary choice of the suspect, even when the crime investigated in the subsequent police-initiated interrogation was unrelated to the crime investigated at the interrogation in which the suspect requested counsel. In order to ensure that a suspect‘s waiver of the Fifth Amendment right to remain silent is voluntary and not coerced, courts may suppress any statement obtained during police-initiated questioning in the absence of counsel if the suspect requested counsel at a preceding interrogation.
A suspect‘s request for an attorney during custodial interrogation, as well as in other contexts such as at arraignment, demonstrates that the suspect wants a lawyer to help in dealing with police questions. The request initiates the waiver
While burdensome, barring law enforcement officials, even those from some other jurisdiction, from questioning a suspect about an unrelated matter while in custody and after counsel has been requested to assist in answering questions about the crime for which the suspect was arrested would have the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogations and of informing courts under what circumstances statements obtained during such interrogations are not admissible.
170 Mich App 403; 427 NW2d 634 (1988) reversed.
CRIMINAL LAW - RIGHT TO COUNSEL - POLICE-INITIATED INTERROGATION.
Once a defendant has been formally charged, the Sixth Amendment guarantees the right to counsel at postarraignment interrogations on those charges; the Fifth Amendment prohibits police-initiated interrogation only after a suspect has invoked the right to counsel under Miranda v Arizona, 384 US 436 (1966), during a custodial interrogation; while a defendant remains in continuous custody, a request for counsel during a custodial interrogation on any charge cannot be circumvented by police-initiated interrogation regarding a new charge; the rationale for extending the right to counsel under Miranda to separate investigations while a person remains in continuous custody does not support extending a defendant‘s Sixth Amendment right to counsel invoked at an arraignment to postarraignment interrogations on unrelated charges (
Frank J. Kelley, Attorney General, Louis J.
State Appellate Defender (by Fred E. Bell) for the defendant.
BOYLE, J. This Court granted leave to appeal in this case, limited to the issue whether the trial court erred in holding the defendant‘s confession admissible at trial. That issue requires that we determine whether the defendant‘s request for appointed counsel at arraignment invoked the right to counsel under Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), and thus prohibited subsequent police-initiated custodial interrogation on unrelated charges. We hold that the Court of Appeals erred in extending the no-access rule of Michigan v Jackson, 475 US 625; 106 S Ct 1404; 89 L Ed 2d 631 (1986), to a charge unrelated to that for which the defendant had invoked his Sixth Amendment right to counsel. Once a defendant has been formally charged, the Sixth Amendment guarantees prohibit subsequent police-initiated postarraignment interrogations on the charges. Jackson, supra. Under the facts in this case, there was no violation of the defendant‘s Sixth Amendment rights1 because the defendant had not been formally charged with the bank robbery at the time of either interrogation.
In regard to defendant‘s Fifth Amendment right to counsel, Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981), and People v
In this case, the defendant did not invoke his right to counsel under Miranda in the context of a custodial interrogation, and thus, a subsequent police-initiated interrogation in relation to the bank robbery charge was not prohibited. Therefore, the defendant‘s voluntary and knowledgeable waiver of his rights under Miranda was valid, and his statements were admissible at trial.
Further, while the United States Supreme Court refused to comment on the specific issue in Jackson, supra, whether a defendant invokes his Sixth and Fifth Amendment rights to counsel at an arraignment, we disagree with the Court of Appeals that the rationale of Roberson for extending the right to counsel under Miranda to separate investigations while an individual remains in continuous custody supports extending a defendant‘s Sixth Amendment right to counsel invoked at an arraignment to postarraignment interrogations on unrelated charges.
Accordingly, we reverse the decision of the Court of Appeals that defendant‘s statement should have been suppressed and reinstate the determination of the trial court.
The defendant was charged with and convicted of bank robbery2 after a bench trial in Ingham Circuit Court and was sentenced to serve from ten to twenty years in prison.3
At the preliminary examination, defense counsel objected to the admission of defendant‘s statement incriminating himself in the robbery, which he made during an interrogation initiated by FBI agents on May 7, 1985.4 The defendant argued he asserted his right to remain silent when Detective Miller of the Lansing Police Department questioned him on May 6, 1985, about the same robbery.5
The magistrate addressed the issues regarding the effect of later questioning once a person has invoked his right to counsel and to silence6 and
Detective Miller questioned the defendant regarding the bank robbery at approximately 11:30 A.M. on May 6, 1985, while the defendant was in custody on other charges.9 The detective testified he advised the defendant of his Miranda rights and that the defendant signed a waiver, indicating a willingness to talk. He further testified that the defendant never said he did not want to talk or
on voluntariness of statements and confessions that could be applicable here.
* * *
So I don‘t believe that I can, at this point, without examining those authorities—not only Michigan law, but Edwards v Arizona and the other cases that dealt with—I think there‘s a case out of Detroit that dealt—that went to the Supreme Court of the United States and dealt with questioning after someone invoked the right to silence. There was questioning in that case and it was found to be okay. But invoking the right to an attorney as well as silence leads to a little different body of law.
So before admitting the statement, we‘re going to have to examine those authorities and make a determination if we can based on these facts. We may need some additional facts before making a determination.
During cross-examination, defense counsel did question the FBI agent regarding whether she was aware that the defendant had been arraigned on other charges earlier in the day, and if counsel had been appointed at the time of the second interrogation. However, the defendant did not raise the issue whether the defendant‘s request for an attorney at an arraignment on unrelated charges prior to the interrogation by the FBI agents should result in the suppression of his statement.
On direct examination, the defendant testified that the questioning stopped because he would not give answers to Detective Miller‘s questions concerning the robbery. However, on cross-examination he admitted he never said he did not want to answer questions, only that he did not wish to speak anymore after saying that he had not been involved in the bank robbery.
Later that same day, the defendant was arraigned on the charges of breaking and entering an occupied dwelling and assault with intent to commit great bodily harm, and was cited for failure to appear for trial on an outstanding bench warrant for an unrelated offense. The judge first questioned the defendant regarding the failure to appear for trial,10 and then addressed the new
Defendant: Your Honor, I—I still don‘t get to understand what . . .
The Court: Here‘s the understanding: Our clerks sent . . .
Defendant: I mean, please. Please.
The Court: . . . you a notice of trial to the address you requested it to be sent.
Defendant: To 1127 Hamilton.
The Court: You didn‘t come.
Defendant: I . . .
The Court: You are in contempt for not coming because you should open your mail. It didn‘t come back here. We sent it to where you told us to send it.
Defendant: Right.
The Court: And your lawyer was here. He came here to represent you at a trial in my court. You didn‘t come. It was assault and battery which I consider a serious matter.
Defendant: It is.
The Court: That‘s right. And you‘re assessed $100 costs for the witnesses who did come. The other bond that you posted in this matter has been forfeited and you‘re to post a new bond that I‘ve ordered here.
Defendant: Your Honor, honestly . . .
The Court: Would you like to apply for a lawyer? You also have another, more serious matter, Mr. Crusoe.
Defendant: I know, your Honor.
The Court: You‘re gonna [sic] be with us in any event. So what do you want to do?
Defendant: Your Honor, I‘m trying to get that straightened out. I‘m trying to explain to you I did not have no [sic] knowledge of that.
The next day, after the arraignment, two FBI agents conducted another interrogation regarding the bank robbery. The defendant testified that FBI Agent Askin readvised him of his Miranda rights, and that he talked to the agents voluntarily and of his own free will.12 Agent Askin testified that while at first the defendant denied knowledge of the robbery, when she told the defendant that fingerprints had been taken from the bank, he said he would talk, but wanted other people “to go down with him.”13 The defendant then dictated a state-
crime of murder, contrary to law. The maximum for that is ten years and a fine of up to $5,000. Now, you are entitled, sir, to a preliminary examination that will be held within 12 days of today‘s date. Would you like a preliminary hearing?
Defendant: Yes, I would, your Honor.
The Court: All right. You are entitled to a lawyer. If you cannot afford counsel, you may apply for a lawyer through our court at public expense. Would you like to apply for a lawyer?
Defendant: Yes, I would. Your Honor, can I ask you a couple questions?
The Court: What is your question?
Defendant: What—what was that—breaking and entering and A & B.
The Court: That‘s a thing to ask your attorney. I cannot give you legal advice, sir.
Defendant: That‘s not legal. I‘m just asking a question. What makes thes [sic]—I live there at that address. I been living there for eight months.
The Court: Then you should confer with your counsel and advise them [sic] of that.
* * *
The Court: Yeah. If you keep talking, it will go up.
Defendant: Your Honor, I still can‘t understand why in the world it‘s like this.
The Court: I suggest that you wait and talk to your counsel.
Afterwards, the trial judge agreed to accept briefs addressing the issues whether after arraignment and request for counsel a defendant can be questioned on other charges,14 whether the indication by the interrogator that certain proofs were in existence affected the voluntariness of a defendant‘s subsequent statement, and whether the advice pertaining to Miranda rights given prior to the second interview were sufficient in light of the evidence that in the first interview there was some indication from the defendant that he did not want to answer any further questions.
The judge subsequently denied the motion to suppress the defendant‘s statement15 and con-
ted the robbery, that he wore a black jacket and mask, and used a taped-up broom handle to simulate a weapon.
Prior to trial, defense counsel brought motions to quash and suppress the defendant‘s statement.17 On September 4, 1985, Judge Bell conducted proceedings on the matter and, in his opinion denying the motion, held in part:
From a review of the preliminary examination transcript and testimony given on September 4, 198[5], before This Court it appears the evidence demonstrates the defendant at no time told Detective Miller he did not want to talk with him, that he didn‘t have anything to say or that he wished to remain silent. The record more clearly indicates the defendant stated he had no knowledge of the bank robbery and wasn‘t involved in it. The second interview by the FBI some twenty-seven hours later, again, contained no evidence of defendant not wanting to talk or wishing to remain silent. Thus, the record does not support defendant‘s
to procure an untrue statement. . . . The totality of the circumstances, including the Defendant‘s own testimony that the statement was voluntary and of his own free will demonstrate that the confession was voluntary. The statement should not be excluded from evidence for the reason advanced.
* * *
This Court is constrained to find no fifth amendment assertion took place at the first interrogation and therefore subsequent questioning was permissible. Even if it were to be assumed that the initial questioning resulted in defendant‘s assertion of fifth amendment rights, the scrupulous nature with which Detective Miller terminated the interview, the twenty-seven hours [sic] interval between questioning and the second giving of Miranda warnings, by itself does not render the subsequent incriminating testimony involuntary.
* * *
[W]here the defendant was charged and arraigned on unrelated charges and apparently was to receive court appointed counsel on these charges, recent caselaw would suggest he could not be interrogated as to these unrelated charges without presence of counsel, unless he initiated the conversation with the police. People v Bladel (After Remand), 421 Mich 39 [365 NW2d 56] (1984).
* * *
The question presented, then, is whether the defendant‘s assertion of his sixth amendment right to counsel on unrelated matters vitiates his waiver of fifth amendment right to remain silent on this charge. This Court does not believe that it does.
The facts here suggest that defendants [sic] request for Court appointed counsel, or the Courts [sic] initiation of the request, was made as a routine arraignment manner [sic]. It is nowhere suggested that at the arraignment the defendant was interrogated or that an atmosphere of coercion existed. In fact quite the contrary, the evidence suggests that the sixth amendment right was conferred upon him as it pertained to judicial proceedings held in the unrelated charges.
Further, it appears that a clear and unambiguous waiver of Miranda rights preceded the second
At trial, the defendant admitted he robbed the bank and that he told the FBI agent he understood his rights during the interrogation.19 On the basis of the teller‘s testimony, the trial judge found beyond a reasonable doubt that a robbery occurred and that there appeared to be no contest as to the truthfulness of the defendant‘s confession which the court previously had found constitutionally sound:
This Court is satisfied that the standard for determination of voluntariness is made based upon [sic] a preponderance of the evidence. It appears that this Court has issued an opinion and order following considerably well-drafted briefs, and well-prepared reasoning by both parties on 25th of September of 1985. . . . [T]his Court concluded that on the three issues that the Court had before it, that in fact, constitutionally, there was no violation of the Fifth and Sixth Amendment rights
* * *
This Court has to conclude, based upon [sic] the incorporation of its earlier rulings on September the 25th, together with the findings of fact that it has just now made, that this statement was in fact a free, voluntary statement made by the Defendant after a waiver of his Miranda rights on the particular day of the—I believe it‘s the 7th of May of 1985.20
On appeal,21 the Court of Appeals reversed the
When defendant requested counsel at his arraignment on the charges of breaking and entering and felonious assault, we presume that he was invoking both his Sixth Amendment right to be represented at every critical stage of the prosecution of those two charges as well as his Fifth Amendment right to be represented during interrogation on the breaking and entering and assault charges or on any other crime for which he may have been a suspect. Thus, the FBI‘s interrogation of defendant after the arraignment violated defendant‘s Fifth Amendment right to be represented by counsel during custodial interrogation. [170 Mich App 403, 408; 427 NW2d 634 (1988).]
The Court of Appeals found the reasoning employed by the United States Court of Appeals for the Seventh Circuit in United States ex rel Espinoza v Fairman, 813 F2d 117 (CA 7, 1987), persuasive and adopted the analysis of that court:
[T]he Seventh Circuit concluded that an individual who requests an attorney at arraignment invokes both Fifth and Sixth Amendment protections since that individual is essentially requesting
suppressed where the FBI-initiated interrogation occurred after an arraignment and request for court-appointed counsel, even when the interrogation concerned an unrelated charge, and less than twenty-four hours after the defendant exercised his Fifth Amendment privilege against compulsory self-incrimination during an interrogation concerning the same offense.
However, the panel of the Court of Appeals did not address the issue, accepting the trial court‘s finding that the defendant did not invoke the right to remain silent during the first interrogation. We do not reach this issue and accept the trial court‘s findings regarding the factual issue whether the defendant invoked the right to silence, and the issue whether his statements were voluntary, which was determined at a Walker hearing.
Recognizing that its opinion conflicted with the opinion in People v Buckles, 155 Mich App 1; 399 NW2d 421 (1986),22 the Court of Appeals certified this case as a conflict. Crusoe, supra, p 409.23
This Court granted leave to appeal, limited to the issue whether the trial court erred in holding that the defendant‘s confession was admissible because the defendant had waived his rights under Miranda v Arizona, supra.24
II
As a rule, the admissibility of an accused‘s confession made during a police-initiated custodial interrogation depends on the results of two distinct inquiries. First, courts must determine whether the accused actually invoked his right to
The Court of Appeals held that the defendant effectively invoked his Fifth Amendment right to counsel26 with respect to the bank robbery charge when he availed himself of his Sixth Amendment27
Accordingly, because Crusoe‘s subsequent statements concerning the bank robbery were made during a police-initiated questioning following his request for counsel at the arraignment on other charges, the Court of Appeals essentially concluded that Crusoe‘s Fifth Amendment right against compelled self-incrimination was violated, notwithstanding the defendant‘s apparently voluntary and knowledgeable waiver of this right.29
This case requires the resolution of two distinct issues: (1) whether a defendant‘s request for appointment of counsel at an arraignment invokes both Sixth and Fifth Amendment rights to counsel and, if not (2) whether the Court should extend Fifth Amendment protections to prohibit subsequent police-initiated questioning following a defendant‘s request for court-appointed counsel at an arraignment on unrelated charges while a suspect remains in custody.30
In concluding that when the defendant requested counsel at his arraignment he invoked his Fifth Amendment right to be represented during interrogation on those charges or any other crime for which he may have been a suspect, Crusoe, supra, p 408, the Court of Appeals adopted the reasoning employed by the United States Court of Appeals for the Seventh Circuit in Espinoza v Fairman, supra. The Espinoza court, relying on Michigan v Jackson, supra, held that individuals who assert the right to counsel at an arraignment invoke both their Sixth and Fifth Amendment rights to counsel. However, in my opinion, the Espinoza court‘s reliance on Jackson is misplaced.
In Jackson, the Court held only that the Sixth Amendment right to assistance of counsel guarantees that right at postarraignment interrogations on those charges because such interrogations represent “critical stages” of adversary judicial proceedings to which the Sixth Amendment applies.31 Id., pp 629-630. The Court recognized a defendant‘s invocation of the Sixth Amendment right to counsel is as protected as is the invocation of the right to counsel under Miranda at a custodial interrogation:
[A]fter a formal accusation has been made—and a person who had previously been just a “suspect”
sented is whether defendant‘s request for appointed counsel at arraignment was an invocation of his right to the assistance of counsel during custodial interrogation.” Post, p 698. We disagree. The precise question is whether the defendant‘s request invoked the right to counsel during custodial interrogation on unrelated charges.
The Court extended the rule of Edwards v Arizona, finding that “if police initiate interrogation after a defendant‘s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant‘s right to counsel for that police-initiated interrogation is invalid.”32 Id., p 636.
This Court, from which Jackson was appealed, held that the defendant‘s request for counsel at his arraignment implicated only his
We recognize that the United States Supreme Court did not pass judgment on the validity of this Court‘s
Nevertheless, the Court did not hold that the invocation of the
The question is not whether respondents had a right to counsel at their postarraignment, custodial interrogations. The existence of that right is clear. It has two sources. The
Fifth Amendment protection against compelled self-incrimination provides the right to counsel at custodial interrogations. Edwards, 451 US at 482; Miranda v Arizona, 384 US 436, 470 (1966). TheSixth Amendment guarantee of the assistance of counsel also provides the right to counsel at postarraignment interrogations. The arraignment signals “the initiation of adversary judicial proceedings” and thus the attachment of theSixth Amendment , United States v Gouveia, 467 US 180, 187, 188 [104 S Ct 2292; 81 L Ed 2d 146] (1984); thereafter, government efforts to elicit information from the accused, including interrogation, represent “critical stages” at which theSixth Amendment applies. [Id., pp 629-630.]
We disagree with the conclusion reached by the Espinoza court upon which the Court of Appeals relied that from Jackson, which bars police-initiated interrogation after indictment in the absence of counsel, it follows that once an accused‘s Sixth
This conclusion ignores the fact that the constitutional basis upon which the right to counsel is invoked determines both when the right attaches and what constitutes a valid waiver of the right.35 Project, Eighteenth annual review of criminal procedure, 77 Geo LJ 489, 647 (1989). In Maine v Moulton, 474 US 159, 180; 106 S Ct 477; 88 L Ed 2d 481 (1985), the Supreme Court distinguished the
[T]o exclude evidence pertaining to charges as to which the
Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public‘s interest in the investigation of criminal activities. Consequently, incriminating statements pertaining to pending charges are inadmissible at the trial of those charges, notwithstanding the fact that the police were also investigating other crimes, if, in obtaining this evidence, the State violated theSixth Amendment by knowingly circumventing the accused‘s right to the assistance of counsel.
Contrary to the dissent‘s conclusion, the Supreme Court has never rejected Moulton as authority in the context of the
At issue in the case before this Court is whether the defendant‘s waiver of his rights under Miranda was valid and whether his statements are
Accordingly, we find the defendant‘s subsequent waiver of his Miranda rights during the police-initiated interrogation concerning the bank robbery offense was not rendered invalid under the rule of Edwards v Arizona, and, in light of the inapplicability of Edwards and Paintman, supra, the defendant‘s statements implicating himself in the robbery are admissible at trial.
IV
The dissent finds that Crusoe requires us to reevaluate the analysis in Bladel, noting that ”Bladel‘s
The dissent‘s rationale for extending the holdings of Edwards and Roberson is that
when defendant requested counsel at his arraignment, he felt that he was not “sufficiently capable of dealing with his adversaries singlehandedly” [and] [h]is request expressed a desire for a lawyer‘s help, not just with formal legal proceedings, but with all subsequent adversarial confrontations, including custodial interrogation. His request was as effective an invocation of his
Fifth Amendment right to counsel as a request to a police officer during interrogation would have been. [Post, p 706.]
However, this conclusion does not take into consideration that the two prerequisites that trigger Miranda procedural safeguards are custody and interrogation,41 and, assuming that the suspect is in a sufficiently coercive atmosphere to even warrant Miranda protections,42 that there must be
In Roberson, the Supreme Court found that it is reasonable to assume that when an accused undergoing custodial interrogation about one charge asserts he wants counsel before making a statement, he wants counsel before making statements concerning any charges while he remains in continuous custody.45 However, a request for counsel at an arraignment does not reflect a similar sub-
Therefore, absent the Edwards concern “with police conduct that might badger an accused into abandoning a previously invoked right,” or evidence that the defendant‘s arrest on the unrelated charges was a sham intended to make him available for questioning on the bank robbery charge, we do not agree that Roberson supports the argument that this Court should presume that a request for counsel invoked at an arraignment reflects the desire for legal assistance during custodial interrogation on different and unrelated charges.
The dissent‘s interpretation would hold that once an accused has asserted his
The United States Supreme Court has not yet interpreted the
CONCLUSION
In sum, we find that the defendant‘s request for counsel at his arraignment invoked his
Therefore, we reverse the decision of the Court of Appeals and reinstate the decision of the trial court that the defendant‘s confession was admissible at trial.
RILEY, C.J., and BRICKLEY and GRIFFIN, JJ., concurred with BOYLE, J.
CAVANAGH, J. (dissenting). Defendant invoked both his
I
We agree with the majority to limit the analysis in this case to the
The precise question presented is whether defendant‘s request for appointed counsel at arraignment was an invocation of his right to the assistance of counsel during custodial interrogation. If it was, then the rule in Edwards and Paintman,
A
Edwards, supra, pp 484-485, held that a suspect who has
expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.
Under this rule, a suspect‘s waiver of Miranda rights at police-initiated custodial interrogation following his request for counsel at an earlier interrogation is not sufficient to demonstrate that this waiver of the
[T]he prophylactic protections that the Miranda warnings provide to counteract the “inherently compelling pressures” of custodial interrogation and to “permit a full opportunity to exercise the privilege against self-incrimination,” 384 US at 467, 86 S Ct at 1624, are implemented by the application of the Edwards corollary that if a suspect believes that he is not capable of undergoing such questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect‘s own instigation, is itself the product of the “inherently compelling pressures” and not the purely voluntary choice of the suspect. As Justice White has explained, “the accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities’ insistence to make a statement without counsel‘s presence may properly be viewed with skepticism.” Michigan v Mosley, 423 US 96, 110, n 2; 96 S Ct 321; 46 L Ed 2d 313 (1975) (concurring in result).
In Roberson, the Court held that the Edwards rule applied even when the crime investigated in the subsequent police-initiated interrogation was unrelated to the crime investigated at the interrogation in which the suspect requested counsel. The Court rejected the view “that fresh sets of Miranda warnings will ‘reassure’ a suspect who has been denied the counsel he has clearly requested that his rights have remained untrammeled.” Roberson, supra, p 686.
Roberson and Edwards clearly hold that in order to insure that a suspect‘s waiver of his
B
The Supreme Court declined to comment on this question in Michigan v Jackson, supra, which affirmed our decision in People v Bladel, supra. In Bladel, each defendant had requested counsel at his arraignment, but was later interrogated about the crime charged. During interrogation, each defendant waived his Miranda rights and then incriminated himself. Both defendants argued that their postarraignment statements were obtained in violation of their
We held in Bladel that the defendants’
Although defendants were in custody at the time of their arraignments, they were not subjected to interrogation. In addition, they did not specifically request counsel for any subsequent custodial interrogations which might be conducted. Defendants requested appointed counsel because they were financially incapable of retaining an attorney and were unwilling to represent themselves. See State v Sparklin, 296 Or 85, [90-91]; 672 P2d 1182, 1185-1186 (1983).
Regarding the defendants’
This case requires us to reevaluate the analysis in Bladel on which the United States Supreme Court refused comment. We do not feel bound today by the two-paragraph
C
1
A suspect‘s request for an attorney during custodial interrogation demonstrates that the suspect wants a lawyer to help him deal with police questions. The request triggers the waiver protections of Edwards. A suspect‘s expression of the same desire in contexts other than custodial interrogation, at arraignment for instance, deserves the same respect.
Plaintiff argues that a defendant requesting counsel at arraignment does not express a need for help with questioning, but instead seeks legal assistance only “to help him with the adversary proceedings on the charged offense.” Plaintiff asks this Court to conclude first, that at the time defendant requested counsel at arraignment, he wanted counsel only to help him with the charges on which he was arraigned and second, that defendant wanted assistance only with “adversary proceedings” and not with custodial interrogation.
Although reading the mind of any defendant is admittedly a difficult task, the Supreme Court‘s recent decisions offer some guidance. In Roberson, supra, p 684, the Court wrote:
Roberson‘s unwillingness to answer any questions without the advice of counsel, without limiting his request for counsel, indicated that he did not feel sufficiently comfortable with the pressures of custodial interrogation to answer questions without an attorney. This discomfort is precisely the state of mind that Edwards presumes to persist unless the suspect himself initiates further
conversation about the investigation; unless he otherwise states, see Connecticut v Barrett [479 US 523; 107 S Ct 828; 93 L Ed 2d 920 (1987)], there is no reason to assume that a suspect‘s state of mind is in any way investigation-specific, see Colorado v Spring [479 US 564; 107 S Ct 851; 93 L Ed 2d 954 (1987)].
Roberson undermines plaintiff‘s argument that we must find that when defendant requested counsel at his arraignment on the assault and breaking and entering charges he desired legal assistance on those charges alone. Indeed, when defendant requested counsel at his arraignment on the assault and breaking and entering charges, he had already been questioned about the robbery. As in Roberson, “there is no reason” in this case “to assume that [defendant‘s] state of mind [was] in any way investigation-specific.” Id., p 684.4
The Court‘s decision in Jackson undermines plaintiff‘s other contention—that defendant‘s arraignment request did not evince a desire for legal assistance at subsequent custodial interrogations. In Jackson, supra, pp 632-633, the Court specifically rejected the almost identical claim that a defendant who requests counsel at arraignment does not intend his request to encompass representation during later interrogation, stating:
The State also relies on the factual differences between a request for counsel during custodial interrogation and a request for counsel at an arraignment. The State maintains that respondents may not have actually intended their re-
quest for counsel to encompass representation during any further questioning by the police. This argument, however, must be considered against the backdrop of our standard for assessing waivers of constitutional rights. Almost a half century ago, in Johnson v Zerbst, 304 US 458 [58 S Ct 1019; 82 L Ed 1461] (1938), a case involving an alleged waiver of a defendant‘s Sixth Amendment right to counsel, the Court explained that we should “indulge every reasonable presumption against waiver of fundamental constitutional rights.” Id. at 464. For that reason, it is the State that has the burden of establishing a valid waiver. Brewer v Williams, 430 US [387, 404; 97 S Ct 1232; 51 L Ed 2d 424 (1977)]. Doubts must be resolved in favor of protecting the constitutional claim. This settled approach to questions of waiver requires us to give a broad, rather than a narrow, interpretation to a defendant‘s request for counsel—we presume that the defendant requests the lawyer‘s services at every critical stage of the prosecution. We thus reject the State‘s suggestion that respondents’ requests for the appointment of counsel should be construed to apply only to representation in formal legal proceedings.
The Court expressly agreed with our “comments” in Bladel concerning “the nature of an accused‘s request for counsel“:
“Although judges and lawyers may understand and appreciate the subtle distinctions between the
Fifth andSixth Amendment rights to counsel, the average person does not. When an accused requests an attorney, either before a police officer or a magistrate, he does not know which constitutional right he is invoking; he therefore should not be expected to articulate exactly why or for what purposes he is seeking counsel. It makes little sense to afford relief from further interrogation to a defendant who asks a police officer for an attorney, but permit further interrogation to a defendant who makes an identical request to a judge.
In light of Jackson and Roberson, we conclude that when defendant requested counsel at his arraignment, he felt that he was not “sufficiently capable of dealing with his adversaries singlehandedly.” His request expressed a desire for a lawyer‘s help, not just with formal legal proceedings, but with all subsequent adversarial confrontations, including custodial interrogation. His request was as effective an invocation of his
2
Plaintiff argues its position is supported by language in Maine v Moulton, 474 US 159, 179-180; 106 S Ct 477; 88 L Ed 2d 481 (1985). Moulton does not control the decision in this case. First, Moulton was a
3
Plaintiff also argues that application of the Edwards rule to this situation “severely hampers ongoing investigations by police officers as to unrelated charges.” “[T]he police will simply be unable to approach one who is in custody on a charged offense and who has requested or has counsel at arraignment.” Policy arguments predicting crippling effects on effective law enforcement have invariably been advanced in cases following Miranda, and have generally been rejected. Most recently, in Roberson, supra, pp 688-689, the Court was unswayed by the dissenters’ contention that the Court‘s ruling
will in many instances deprive our nationwide law enforcement network of a legitimate investigative technique now routinely used to resolve major crimes.
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It is a frequent occurrence that the suspect is wanted for questioning with respect to crimes unrelated to the one for which he has been appre-
Like the Court in Roberson, supra, pp 681-682, we find that a bright-line rule would have
“the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible. This gain in specificity, which benefits the accused and the State alike, has been thought to outweigh the burdens that the decision in Miranda imposes on law enforcement agencies and the courts by requiring the suppression of trustworthy and highly probative evidence even though the confession might be voluntary under traditional Fifth Amendment analysis.” [Quoting Fare v Michael C, 442 US 707, 718.]
Contrary to plaintiff‘s contentions, suspects remain free to give statements to the police after requesting counsel at an arraignment. “[A]ny ‘further communications, exchanges, or conversations with the police’ that the suspect himself initiates, . . . are perfectly valid.” Roberson, supra, p 687.8
II
We agree with the Court of Appeals that defen-
LEVIN and ARCHER, JJ., concurred with CAVANAGH, J.
Notes
Defendant does not continue to argue in this Court that he invoked his right to silence during the first interrogation, or that his statements were the product of police trickery. Therefore, we do not reach whether or not the trial court‘s rulings concerning these separate
It is also unnecessary to review the trial court‘s decision that no
The following courts have held or suggested that an arraignment request for counsel does not invoke a defendant‘s
The following courts have disagreed: State v Preston, 150 Vt 511; 555 A2d 360 (1988); Sutherland v State, 299 Ark 86; 771 SW2d 264 (1989).
See also Alston v State, 554 A2d 304, 310 (Del, 1989), cert den 490 US —; 109 S Ct 2455; 104 L Ed 2d 1009 (1989) (a defendant may invoke the right at an arraignment, but did not invoke right by filling out request for counsel form available to warden but not police); Higginbotham v State, 769 SW2d 265 (Tex App, 1989) (precharge request for counsel to a magistrate invokes
[T]he second part of the objection, however, raises some very, very complicated issues, probably one of the most complicated areas of the law in existence, and that is dealing with the question of once a person has invoked his right to counsel and to silence, the effect of later questioning.
We‘ve got a recent Supreme Court of Michigan case on the subject of questioning after arraignment that could be applicable here. We‘ve got a lengthy Michigan Supreme Court opinion
One agent later testified that she began the interview by asking the defendant if he had an attorney and that he told her “he thought they were going to be appointing counsel for him.” She then asked if defendant had met with an attorney yet and he answered that he had not. The agent read defendant his Miranda rights. Defendant then signed a standard waiver form and made incriminating statements linking himself to the robbery.The Court: That‘s fine. Okay. Well, Mr. Crusoe, it‘s my opinion or my decision that you were sent a notice to the proper address.
Defendant: What address is that, sir?
The Court: 1127 Hamilton.
Defendant: 1127—all right, then. I did receive a notice. All right, then. But, I told my lawyer that I‘m not pleading guilty to that.
The Court: Nobody asked you to plead guilty. You were supposed to be here for trial.
Defendant: When was it set?
The Court: April . . .
Defendant: I—I still—I still haven‘t received it.
The Court: Well, we sent it.
Defendant: I mean, I haven‘t received it. I mean, it might be my fault, but I haven‘t received it.
The Court: That‘s fine. You‘re assessed costs of $100 or 15 days. Your new bond is $2,000—ten percent. Would you like to apply for a lawyer again? I‘ll note that you want Court attorney. Is that correct?
The Court: Okay. The next matter, Mr. Crusoe is 85-723-FY. You are charged as follows: that at 1426 Knollwood, in count one; in count two at 1412 Knollwood, Lansing, that you did break and enter an occupied dwelling . . .
Defendant: Judge, may I say something . . .
The Court: house located at 1426 Knollwood, Lansing, Michigan with the intent to commit the felony crime of assault with intent to do great bodily harm less than murder.
Defendant: That is my address.
The Court: The maximum penalty is 15 years in prison. Well, that‘s fine. That‘s why we have preliminary hearings. The maximum penalty on that charge is 15 years in prison, Mr. Crusoe. You are charged in count two that you did assault Marilyn Gadlin with intent to do great bodily harm less than the
Sixth Amendment rights are not interfered with when the interrogation concerns factually unrelated crimes.
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Under the total circumstances, including the somewhat contradictory testimony of Defendant, this Court makes the factual finding that Defendant did not invoke the right to remain silent when being questioned by Detective Miller or at any time before giving the statement to the FBI.
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[This] Court finds no violation of Defendant‘s Miranda right to refuse to answer because it was never invoked.
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Defendant contends that the statement should not be admitted as being the product of trickery or deceit. . . . The rule is that deception or trickery do not violate due process or render a confession involuntary provided the means are not calculated
The defendant argued that without the use of the statement, obtained in violation of his Fifth Amendment right to remain silent, and in violation of his Sixth Amendment right to counsel, the prosecutor had failed to establish by sufficient evidence that there was probable cause to believe that defendant committed the crime in question.
Defendant‘s allegations of trickery and deceit used by FBI Special Agent Askins [sic] to coerce a confession from the defendant deserves very close review. . . . In this matter the questioning appears to not have been lengthy, the agents appear to have conducted themselves with civility, the defendant fully understood the implications both of his waiver of rights and the incriminating conclusions potential from the physical evidence.
Thus, despite the stated intention of making it appear the physical evidence alone would implicate guilt, This Court cannot conclude the agents’ words were sufficient to overbear the defendant‘s free will and render the statement involuntary.
The Court found that, in this case, the authorities could question the defendant without counsel present only if the defendant initiated the conversation, indicated a willingness to discuss the case, was carefully advised of, and then waived, both his Fifth and Sixth Amendment rights.
The United States Supreme Court affirmed the holding of Bladel and Michigan v Jackson, the consolidated case, that confessions obtained during custodial interrogation after an individual requests counsel at arraignment on the same charges, but before the individual is able to consult with counsel, are inadmissible at trial as a violation of the Sixth Amendment right to counsel.
[W]hen an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. [The defendant] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. [Id., pp 478-479.]
In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of Counsel for his defence. [
The Sixth Amendment right to counsel was held to apply to the states through the Fourteenth Amendment in Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963).
Espinoza fails to recognize the fact that Jackson only refused to limit the scope of the
[b]ecause an individual who does not understand his or her rights cannot validly waive them, see Moran v Burbine [475 US 412, 422; 106 S Ct 1135; 89 L Ed 2d 410 (1986)], we are required to presume that an individual who requests counsel at his or her arraignment is asserting both a
Sixth Amendment and aFifth Amendment right even if the individual does not “articulate exactly why or for what purposes he is seeking counsel,” Jackson, [475 US] at [633-634] n 7 (quoting [People] v Jackson, 421 Mich at 63-64; 365 NW2d at 67). [Id., p 123.]
For example, “[i]ncriminating statements pertaining to other crimes, as to which the
On the other hand, the right to counsel under Miranda, once invoked, extends to any subsequent custodial questioning, regardless of whether such questioning pertains to matters wholly unrelated to the crime with regard to which the right was invoked. Roberson, supra.
The dissent concludes the holding in Moulton inapplicable, and thus not controlling in the present case:
First, Moulton was a
Sixth Amendment case and did not consider directly theFifth Amendment issue presented here. See Roberson, supra, pp 684-685 (rejecting Moulton as authority in theFifth Amendment context). Second, the Court in Moulton was discussing suppression of statements “simply because other charges were pending at the time,” id., p 180. It did not address suppression due to a prior, and, at the time of the interrogation, still unfulfilled, request for counsel made at arraignment. Finally, the Court‘s analysis in the later cases of Jackson and Roberson has replaced the Moulton dicta on the issue before us. [Post, pp 706-707.]
The dissent‘s discussion of Moulton is not supported by case law, and, in addition, there is nothing in the record which indicates that the defendant‘s request for counsel made at his arraignment was not honored.
Further, the Court‘s analysis in the later cases of Jackson and Roberson has not replaced the Moulton dicta on the issue before us today. Post, p 707. The Court reaffirmed that dicta in Moran v Burbine, 475 US 412, 431; 106 S Ct 1135; 89 L Ed 2d 410 (1986):
[L]ooking to the initiation of adversary judicial proceedings, far from being mere formalism, is fundamental to the proper application of the
Sixth Amendment right to counsel. [In Moulton] we considered the constitutional implications of a surreptitious investigation that yielded evidence pertaining to two crimes. For one, the defendant had been indicted; for the other, he had not. Concerning the former, the Court reaffirmed that after the first charging proceeding the government may not deliberately elicit incriminating statements from an accused out of the presence of counsel. . . . The Court made clear, however, that the evidence concerning the crime for which the defendant had not been indicted—evidence obtained in precisely the same manner from the identical suspect—would be admissible at a trial limited to those charges.
Similarly the dissent ignores the difference between the
The former arises from the fact that the suspect has been formally charged with a particular crime and thus is facing a State apparatus that has been geared up to prosecute him. The latter is protected by the prophylaxis of having an attorney present to counteract the inherent pressures of custodial interrogation, which arise from the fact of such interrogation and exist regardless of the number of crimes under investigation or whether those crimes have resulted in formal charges. [Roberson, supra.]
The United States Supreme Court held that Miranda warnings are not required even when the defendant is in jail awaiting trial on other charges and is questioned by an undercover person. Moulton, supra, p 180.
However, in People v Perkins, 176 Ill App 3d 443; 531 NE2d 141 (1988), the court held that Miranda protections applied to informal interrogation of the defendant by an undercover officer while the defendant was in jail awaiting trial for an unrelated charge. This holding is contrary to Moulton where the Court found, in a similar situation, that the questioning did not amount to “custodial interrogation,” and thus the
The United States Supreme Court did not establish a new “rule” of law in Roberson, contrary to the conclusion reached by the United States Court of Appeals for the Fourth Circuit in Butler v Aiken, 864 F2d 24 (CA 4, 1988).
The Fourth Circuit, relying on the holding in Colorado v Spring, 479 US 564; 107 S Ct 851; 93 L Ed 2d 954 (1987) that a waiver of the
On rehearing, the court found that the appearance of counsel with the defendant (who had an IQ of sixty-nine and functioned at the mental level of an eight- or nine-year-old) at a bond hearing on an assault charge for which he was first arrested conclusively demonstrated an invocation of the his
The United States Supreme Court recently granted the plaintiff‘s petition for certiorari to address the issue whether the Court of Appeals majority misread Arizona v Roberson as creating a “new” rule of constitutional law. Butler v Aiken, cert gtd sub nom Butler v McKellar, 490 US —; 109 S Ct 1952; 104 L Ed 2d 422 (1989).
Recently, the United States Court of Appeals for the Sixth Circuit distinguished its earlier holding in Boles v Foltz, 816 F2d 1132 (CA 6, 1987), that a defendant‘s statement at his arraignment that he had an attorney did not express a desire to only deal with police through counsel on unrelated charges. United States v Wolf, 879 F2d 1320 (CA 6, 1989). However, while the court held that absent evidence the defendant intends to limit a request for appointment of counsel at an arraignment, the request will trigger the prophylactic rule of Roberson, its decision relied on the facts particular to defendant Wolf‘s arraignment:
Boles is distinguishable from this case. In concluding that the ordinary meaning of Boles’ statement was that he wanted to have his attorney present at an upcoming preliminary hearing, our court relied on evidence in the record that his statement was made as part of an exchange setting up that hearing. [Wolf, supra, p 1323.]
Similarly, it is clear, relying on the evidence in the record, that in the case now before this Court, the defendant‘s request for counsel at his arraignment indicated that the statement reflected only the desire for legal assistance on the assault and breaking and entering charges.
This reasoning is also supported by the holding in Connecticut v Barrett, 479 US 523, 528; 107 S Ct 828; 93 L Ed 2d 920 (1987), where the Court defined the prophylactic purpose of Miranda, with regard to the prohibition on further interrogation once counsel has been requested as
designed to insulate the exercise of
Fifth Amendment rights from the government “compulsion, subtle or otherwise,” that “operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.”
The Court concluded that there was no constitutional objective to be served by suppression of the defendant‘s statement. Id.