Lead Opinion
Dеfendant appeals as of right from his conviction by a jury of first-degree criminal sexual conduct, MCL 750.520b(l)(f); MSA 28.788(2)(l)(f). Defendant was sentenced to a term of ten to thirty years’ imprisonment. We affirm.
On September 29, 1995, defendant voluntarily agreed to participate in an interview at the state police headquarters in Lansing. He was taken into an interview room that was being monitored by closed-circuit television, advised of his constitutional rights, and, upon waiving his rights and agreеing to speak, was then questioned for approximately 2l!% to 3 hours. During the interview, defendant admitted having sexual intercourse with the complainant, but claimed that it was consensual. The entire interview was observed by Detective Kewish; Kewish thereafter conducted his own audiotaped interview with defendant. In the second interview, dеfendant was again advised of his constitutional rights and, after agreeing to speak, told Kewish that he had consensual sexual intercourse with the victim. Defendant was arrested and later convicted of first-degree criminal sexual conduct.
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Defendant first argues that he was denied a fair trial because his trial counsel was ineffeсtive in failing to file a motion to suppress his confession to the
To properly preserve tMs issue defendant would have had to object to Ms counsel’s performance in the court below and establish a record of facts pertaining to such аllegations. He did neither and therefore failed to preserve the issue. People v Ginther,
In determining whether defendant’s confession was knowing, voluntary, and mtelligent, we apply an objеctive standard and examine the totality of the circumstances. People v Cipriano,
In the present case, the record does not support defendant’s contention that his statements were nоt voluntary or that he did not intelligently and knowingly waive his rights. Although defendant may have a less-than-average intelligence level, there is no evidence that he did not understand his right to remain silent, his right to obtain an attorney, or the fact that his statements may be used against him at trial. As the United States Supreme Court has held, a deficiency in the defendаnt that is not exploited by the police cannot annul the voluntariness of a confession unless there is evidence of police coercion. Colorado v Connelly,
The record does not suggest that the police took advantage of defendant’s intelligence level, that he was in any way subjected to coercion or improper police conduct, or that defendant’s statements were the result of confusion or mental deficiency. Accordingly, we believe that his cоnfession was properly admitted at trial, and trial counsel cannot be faulted for failing to raise an objection or motion that would have been futile. See People v Tullie, 141 Mich App
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Defendant next argues that he is entitled to a new trial because the police failed to make an audio or visual recording of his interview. To support his contention that the trial court sua sponte should have suppressed his confession, defendant cites an Alaska case, Stephan v State,
In Stephan, the Alaska Supreme Cоurt opined that electronic recordings of custodial interrogations, while not required by the United States Constitution,
First, we do not believe that the Due Process Clause of our state constitution requires such a practice. Const 1963, art 1, § 17 provides that “[n]o person shall be . . . deprived of Ufe, liberty or property, without due process of law.” The Due Process Clause is violated when there is a “ ‘failure to observe that fundamental fairness essential to the very concept of justice.’ ” Dodge v Detroit Trust Co,
Second, we note that the rule set forth in Stephan is a minority view that has not been generally accepted. Although some state legislatures have adopted statutes requiring that custodial interrogations be recorded, the majority of state courts that have considered this issue have specifically rejected the conclusion reached by the Alaska Supreme Court. See, e.g., People v Raibon,
In the present case, we cannot say that the failure of the police to electronically record defendant’s confession was so “fundamentally unfair” that the concept of justice was offended. In this regard, we note that defendant does not claim that he was threatened or coerced or that he did not, in fact, waive his constitutional rights. In fact, we are hard pressed to see how a recording of defendant’s confession might have benefited the defense. Accordingly, because no claim of material misconduct has been presented, we find that the trial court did not commit error requiring reversal in admitting defendant’s confession without a recording of that statement.
Affirmed.
Notes
Miranda v Arizona,
The court noted that “a recording does not meet the standard of constitutional materiаlity recently enunciated by the United States Supreme Court in California v Trombetta,
In passing, we note that this conclusion is consistent with the Alaska court’s holding in Stephan, supra at 1165, where the court found that there is no reason to exclude a defendant’s statements, even if unrecorded, if no claim of material misconduct has been presented.
Concurrence Opinion
(concurring in part and dissenting in part).
The majority concludes that the record does not support defendant’s contention that his statements were not voluntary or that he did not intelligently and knowingly waive his rights. As a result of this conclusion, the majority holds that a motion to suppress would have been futile and that counsel was therefore not ineffective in failing to move to suppress defendant’s stаtement.
I agree with the majority that the failure of the police to make an audio or visual recording of defendant’s interview did not violate defendant’s rights under the Due Process Clause of the Michigan Constitution. I write separately, however, to urge the Legislature to promulgate a statute mandating the electronic recording of prestаtement conversation and actual interrogation and, unless and until that time, I urge law enforcement officers to make such recordings voluntarily.
The failure of law enforcement officers to record and preserve an accused’s statements frequently results in the loss of essential parts thereof. See Miranda v Arizona,
In Stephan v State,
The technology presently exists to record readily and accurately by both video and sound tapes the statements of witnesses and accuseds. Indeed, when it is to the advantage of law enforcement officers to recоrd the actions or statements of accuseds and witnesses, this is often done. See Stephan, supra. The courts are therefore presented with a situation in which the police, with only a minimal expenditure of effort and money, have the technical capability to preserve vital testimony to assure that the accused’s rights have beеn observed and to validate the integrity of the actual interrogation.
Others have recognized the protections that a recording requirement would provide. See, e.g., Hendricks v Swenson, 456 F2d 503 (CA 8, 1972) (suggesting that videotapes of interrogations protected the defendant’s rights and are a step forward in the
The court system is entitled to receive the best evidence available in order to resolve the serious criminal mаtters that come before it. A logical consequence of this principle is the need for the consistent systematic recording of all interviews of a detained accused conducted by law enforcement officials. Thus, I am persuaded that the electronic recording of prestatement conversation and custodial interrogations, where feasible, and where made in a place of detention, is now a reasonable and necessary safeguard, essential to the adequate protection of the accused’s right to counsel, his right against self-incrimination, and his right to a fair trial.
Defendant’s motion to remand for an evidentiary hearing was denied by this Court.
People v Walker (On Rehearing),
People v Ginther,
The Stephan analysis is relevant despite the fact that the Alaska Supreme Court concluded that recording is a requirement of state due process. Id. at 1159-1160.
In this regard, I note that defendant was interviewed by Sgt. John J. Palmatier of the Michigan State Police. In DelAsle, supra, this Court held that defendant DeLdsle’s statement, which was made during a nearly 3V2-hour interrogation by Sgt. Palmatier, was inadmissible because it was, among other things, the product of coercive police activity.