People v. Kowalski

230 464 464 PEOPLE v KOWALSKI 8, 1997, at Decided June Docket No. 190352. Submitted October Detroit. 26, 1998, at 9:05 A.M. jury Stanley in was in a the Oakland Cir- Kowalski convicted 1975 O’Brien, J., first-degree Court, N. murder. The defend- cuit John fatally shooting had to two vic- ant and a codefendant confessed robbery. during The had come tims a codefendant’s confession speak attorney when, had to an dur- first. The defendant asked to ing interview, rights pursuant a he was advised of his to 1602; Arizona, 436; 384 86 S Ct 16 L Ed 2d 694 Miranda v US ninety (1966). later, About minutes detective had informed made The the defendant that the codefendant had a statement. he had asked the defendant whether still wanted an attor- detective ney. replied longer The defendant had that he no wanted an attor- ney. prosecutor, taking An assistant before the defendant’s confes- sion, rights. had readvised the defendant of his Miranda appointed appellate timely the counsel filed a motion defendant’s trial, arguing denying for a that trial court had in the new the erred pretrial suppression defendant’s motion of evidence of his con- for fession, arguing that the had been obtained in violation confession right hearing A on motion was defendаnt’s counsel. adjourned hearing and no new for was set. In date a letter to unsuc- defendant wrote the trial court inform it of his inquire cessful efforts to contact his counsel and to about the sta- assigned Gage, Judge tus of his case. The matter was Hilda R. appointed who new counsel filed a for the defendant. That counsel “supplement” trial, arguing to the 1976 for a new that the motion had defendant’s confession been obtained violation of Edwards Arizona, 477; 1880; (1981), v US 101 S 68 L Ed 2d which Ct 378 given Louisiana, limited in Shea v retroactive effect Judge Gage 84 L Ed 2d the motion S Ct denied trial, ruling for new the defendant had abandoned the appealed by granted. motion. leave The Appeals held: Court of suppression hearing 1. the law in effect the time of the Under at trial, admitting trial court did err in defendant’s not requirements confession into evidence. Consistent with Whealon, (CA Miranda, supra, as F 2d 629 construed Hill 6, 1974), interrogation immediately of the defendant ceased when speak attorney, the defendant asked to to an and without further prompting coercion, or the defendant later indicated that he attorney give wished to waive his to an a statement. The again rights defendant was advised of his Miranda before confess- ing. right questioning The defendant’s to cut off reinitiated scrupulously required by Michigan Mosley, honored as 96 S Ct 46 L Ed 2d 313 Assuming deciding supra, Edwards, applies 2. without that to case, this the confession was not in obtained violation of Edwards. Edwards, requested attorney Pursuant to an accused who has an is subject police interrogation not to further in the absence of coun- sel, unless the accused initiates further communication. Words or part police (other normally actions on the than those attend- custody) police ant to arrest and that the should know are reasona- bly likely incriminating response suspect to elicit from the are equivalent interrogation. Here, the functional after the defendant right counsel, detective, invoked informing the to the when the defendant of asking the codefendant’s statement and the defendant attorney, whether he still interrogation wanted an did not resume of the defendant. It was the defendant who initiated communica- unequivocally tion that led to the confession when he indiсated longer attorney that he no give wanted an and that he wished to a statement. Affirmed.

Corrigan, C.J., concurring, stated that the defendant abandoned original by his failing motion a for new trial to establish an eviden- tiary neglect by original appellate foundation for counsel or to pursue motion, otherwise the that the trial court did not err in admitting the controlling defendant’s confession under the law at suppression hearing trial, the time of required the and which law by prosecution demonstration the that the defendant was advised rights knowingly voluntarily of his them, and waived and that apply retroactively Edwards does not to this case because this pending case was not when Edwards was decided. If the United prophylactic States Court’s establishment of the rule legitimate, apply Edwards were and if Edwards were to to this case, the defendant’s confession would have been obtained in viola- interrogation tion of Edwards because resumed when the detective informed the defendant of the codefendant’s statement and asked the attorney. defendant whether he still wanted an — — — — Suppression Apрeal. 1. Criminal Law Evidence Confessions Appeals, reviewing ruling The Court of when a trial court aon motion suppress confession, to evidence of a reviews the record de novo 230 findings, will not gives court’s which be the trial but deference to clearly they are erroneous. disturbed unless Right — Interrogations — to Counsel. Law Police 2. Criminal upon invoking suspect interrogation, to the coun- A under subject interrogation sel, absence of counsel is not further suspect which further initiates communication unless longer suspect unequivocally is no wanted indicates counsel suspect give statement; is not and that the wishes merely inquire suspect where into whether resumed counsel. continues want Attorney Kelley, General, Thomas L. Frank J. Gorcyca, Casey, G. General, Solicitor David Prosecut- Attorney, Acting ing H. Browne, Chief, Richard Appellate Richards, Thomas Assistant Division, people. Prosecuting Attorney, for the Appellate (by Hoek), Van State Defender Peter Jon appeal. for the on C.J., Hoekstra, Before: Grifíin Corrigan, JJ. 18, 1975,

Per Curiam. On December defendant was jury first-degree murder, a of convicted MCL January 750.316; MSA28.548. He sentenced on imprisonment. appeals by 1976, to life He now 22, denying granted motion for a leave from an order We new trial. affirm.

i procedural history. This case an unusual has Defendant’s conviction arises from the November shooting gasoline deaths of two station attend police prosecutor trial, ants. At the introduced con in which that he and a fession defendant admitted shot codefendant, Sands, Ronald the two attendants during robbery. Codefendant Sands was tried sepa rately and also found guilty of first-degree murder.1 pertinent facts surrounding police defendant’s confession are not in dispute.2 3Onthe morning of 30, 1974, police November questioned defendant and codefendant Sands about a shooting that occurred earlier that at a morning Tulsa gasoline sta tion. Sands was a former employee of gasoline station and had been observed in vicinity gasoline station the company of defendant. Defend ant was advised of his Miranda3 rights, and he denied knowledge the offense, following which he was released. Later that day, defendant and codefend ant Sands returned to the station for further questioning.

At 2:13 an assistant prosecutor, Richard P.M., Thompson, interviewed defendant presence Detective Robert Lister. After being advised of his Miranda rights, defendant speak asked to to an attor- ney. The questioning immediately ceased, and Thomp- son informed they would not talk to him until he had an attorney. Defendant was then taken to another office and left alone. He had access ato telephone, but was not free to leave. While wait- in the ing office, defendant used the telephone to call a friend to ask for assistance in locating attorney. The friend apparently informed defendant that he would call back, but defendant never received a return telephone call. In the meantime, People Sands, App 25; See 82 Mich 266 NW2d 652 2 brief, acknowledges In his that “there is no conflict over during interrogations the facts of what occurred the two of Mr. Kowalski on November 1974.” Arizona, Miranda v 86 S Ct L16 Ed 2d 694 230 Mich

Opinion Court codefendant Sands a statement from obtained gasoline describing the Tulsa what occurred at station. Shortly returned to 3:40 Detective Listеr before P.M., located, informed where defendant

the office given a state codefendant Sands had defendant that still like to talk to and asked him if he “would ment, attorney.” discuss the substance of an Lister did not mention what with defendant or Sands’ statement might any, if the statement have on defendant’s effect, Lister, [Sands] “if Ron didn’t case. Defendant told attorney, give and he would want an neither did he Thompson, telling then contacted statement.” Lister willing defendant was now to waive his him that Thompson give rights a statement. returned and and a second recorded interview. Before ask conducted Thompson any questions ing once offense, about the rights again advised defendant of his Miranda and inquired specifically speak to whether he wished to attorney. Thompson that he under Defendant told willing rights and was now to waive his stood rights give a statement.4 Defendant thereafter told Thompson following colloquy occurred between and defendant: you your Thompson: Kowalski, gave I Mr. Mr. I know that lawyer warnings you speak before and that wanted to to a

Miranda any questions. answering before Uh-huh. Defendant: Thompson: has us Mr. You do know that Mr. Ron Sands talked to gas concerning incident at the Tulsa station? Uh-huh. Defendant: you Thompson: Mr. And as I understand it at this time wish to you your rights waive will make a statement as to what happened. Yes. Defendant: promises you. Thompson: Mr. There’s been no threats or made to No. Defendant:

Thompson that he and codefendant Sands shot the gasoline robbery. two station attendants a during Defendant that stated one attendants had whereupon “smarted to Sands, off” Sands shot attendant a then with rifle. Sands handed rifle to defendant, and defendant the rifle and reloaded shot the other attendant. your Thompson: record, going you rights Mr. For the I’m to read again go through procedure through and we’ll the same that I went One, you right Two, anything you before. say have a to remain silent. against you Three, you can be and will used in a court of law. right lawyer any answering questions have a talk to a to before and

you lawyer present right you you have to have a with while are questions. answering any Four, you if can not afford to hire a law- yer appointed you represent any questioning one will be to beforе you one; five, you right any if wish have to decide at time during your questioning right before or your to use to silent remain you right lawyer being questioned. to talk with a while are Do you rights? each of understand these (Shaking yes) head Defendant: you Thompson: speak audibly Mr. Would so she can take down your you rights? answer? Do understand those Eight. Defendant: you Thompson: lawyer any Mr. Do wish talk to a before questions? going one, If Eon ain’t to talk I ain’t either. Defendant: Thompson: words, you right. Mr. In other waive that Yes. Defendant: Thompson: you your right Mr. And will waive silent remain questions? and answer (Shaking yes) head Defendant: Thompson: Mr. Yes or no? you doWhat mean that? Defendant: you Thompson: your right Mr. Will waive to remain silent and you any questions might you? will answer we ask guess questions I’ll I talk. You can ask me the then. Defendant: Thompson: Mr. You will talk then? to us Yes. Defendant: voluntary Thompson: Mr. To make a statement? Yes.

Defendant: Thompson: happened. Mr. Just tell us what

Opinion of Court pretrial challenging motion brought Defendant confession, maintaining that it admissibility his his involuntary and obtained violation evidentiary the trial hearing, Following to counsel. ruling: to suppress, denied the motion court rights. view of this Kowalski It is the Mr. did exercise physical reviewing after all of the circumstances Court that, to waive after that he decided on his own occurred implied rights, and find no or these I can coercion either psychological do so. It or that caused him to otherwise entirely by appears to this it was a decision made Court pressure. himself without outside or undue 11, appointed appellate March defendant’s On for a attorney timely trial, filed a motion new alleging suppress to pretrial error in the denial of the motion Although hearing a on defendant’s confession. 24, 1976, was for March the record motion scheduled adjourned was indicates that the matter without a For hearing being new date set. reasons that are was unclear, motion, no further action taken on the motion nor was decision on the ever entered. years later, More than fifteen defendant a letter to inquiring wrote the court about status his case. The mentioned unsuccessful letter several attempts appointed to contact attor- ney during the fifteen regarding preceding the case presided who years. judge Becausе the over defend- suppression hearing ant’s 1975 and trial had retired, a new there- judge, the matter to who assigned attorney to upon appointed represent a new defend- attorney subsequently Defendant’s filed a ant. new trial, 1976 motion for a new tak- “supplement” position pend- was “still ing the that the motion it been or other- ing” because had never withdrawn supplemental wise resolved. The alleged motion defendant’s confession was obtained in viola- Arizona, tion of Edwards v 451 US 101 S Ct 1880; 68 L Ed 2d 378 (1981). Although Edwards was years decided more than four after defendant was convicted, it was limited given retroactive effect Shea v Louisiana, 51, 59; 105 S L Ct Ed 2d 38 (1985), cases that were on direct pending review at the time it was decided. Defense counsel the position took that defendant’s case was pending on direct review at the time Edwards was decided because admissibility the issue of the of defendant’s police confession had been raised in timely filed motion for a new trial, which motion was never with- drawn or otherwise resolved.

After a delays series of that are not relevant to this appeal, the trial court issued a May 4, decision on 1995, denying defendant’s motion for a new trial. doing so, the trial court found that the 1976 motion for a new trial had been abandoned and, therefore, inapplicable Edwards was to defendant’s case. The proceeded trial court then admissibility address the defendant’s confession under the law in effect at the suppression time of defendant’s hearing and concluded that the confession properly was appeal obtained. This followed.

n argues Defendant that the trial court should have suppressed police confession ‍​‌​‌‌​​‌​‌​‌​​‌‌​‌​​​‌​​​‌‌‌‌​​‌‌​‌​‌​​‌‌‌​‌​​‌​‍because it was obtained in violation of his right to counsel. appeal

On from a on a ruling suppress motion to evidence a confession, of given deference must be the trial findings. People court’s v Cheatham, 453 464 230

472 Mich J); J), NW2d 44 551 29-30 (Weaver, (Boyle, will novo but record de We review the findings the unless court’s factual the trial not disturb findings clearly erroneous. Id. are

A whether defendant’s will first address We properly in the law admitted under was confession suppression hearing of defendant’s at the time effect and trial. analysis begin the United States with

We our Supreme Arizona, in Miranda v decision Court’s (1966). In L Ed 2d 694 S Ct US pro- a set of Court established Miranda, the suspect’s safeguard phylactic Amend- a Fifth rules to compulsory privilege against self-incrimination. ment custody suspect must in held that a The Court suspect’s right specifically of the be informed attorney present before silent and to have remain questioned. being further held at 479. The Court Id. wants an attor- states that he “[i]f the individual attorney ney, is until an must cease interroga- present.” “[i]f Furthermore, Id. at 474. attorney presence an tion continues without the heavy burden rests on taken, a statement is government defendant know- demonstrate that the against privilege ingly intelligently waived his to retained or and his self-incrimination appointed counsel.” Id. at 475. under what cir- decision did not state

The Miranda resumption questioning any, if cumstances, custody rights permitted person invoked after a in this area Moreover, the law under Miranda. immediate aftermath remained unsettled 473 suppression decision. At defendant’s hear- Miranda ing, the trial court relied on the decision of the Sixth Appeals Circuit Court of in Hill v 490 Whealon, F2d (CA 6, 1974), concluding thаt defendant’s con- properly fession was obtained. We that Hill agree supports the trial decision to court’s admit defend- ant’s confession. Hill, supra police immediately at ceased the defendant after

interrogating the defendant stated that he rights. Approxi- did not wish to waive his mately ninety minutes later another officer approached the informed him a defendant, that code- fendant statement, inquired had made a defendant whether he had he wished anything say. “any Id. Without further prompting, cajoling, harass- ment, inducements,” threats or the defendant said that he wanted talk, whereupon he was taken fully room and advised of rights, fol- lowing gave which he a statement. Id. In addressing whether the defendant’s statement was obtained in Miranda, violation of the Sixth Circuit Court of Appeals joined majority of other federal and state presented courts with the issue and refused to con- proscription strue Miranda as creating of fur- ther interrogation suspect once a declined to make a adopted statement. The court instead position the Second Appeals Circuit Court оf in United States Collins, 462 F2d 802 (CA 2, 1972), which held: agreed requires axe that what Miranda is that

“[We] ‘interrogation adequate warnings must cease’ until new and given have been there is reasonable basis for infer- suspect voluntarily ring changed has his mind.” [Hill, swpra at 635.] Opinion Court the defendant’s statement

The court in Hill held that case, this because, “under the facts of was admissible ‘heavy prosecution has sustained its burden’ of effectively demonstrating Hill was advised of his voluntarily knowingly rights declined and that he and to exercise them.” Id. at 635. strikingly are similar to those

The facts of this case immediately Thompson ques- Here, in Hill. ceased all attorney. Approx- tioning asked for an after defendant imately ninety minutes later Detective lister approached him that defendant to inform codefend- inquire given ant Sands had a statement and to attorney. whether still wanted an Without defendant any prompting coercion, further or evidence of right he wished defendant indicated that to waive his attorney give Afterwards, to an and a statement. fully rights of his defendant was advised Miranda any questioning conducted, before further was follow- ing repeated right which he his desire to waive his attorney give an and a statement. foregoing compli- that, facts demonstrate given Hill,

ance with defendant was a new set of any warnings questioning Miranda before further upon Moreover, court, conducted. the trial consider- ing physical “all of the circumstances that occurred initially right after” defendant invoked to an attor- ney, [police] concluded that there was “no coercion implied psychological regard- either or or otherwise” ing give decision a statement, defendant’s and that attorney give the decision to a statement an without entirely by [defendant] was “made without pressure.” independent outside or undue Our review of the record convinces us that the trial court’s con- clearly clusions are not erroneous.

We with disagree suppres- defendant’s claim that required by of his confession was this sion People Mosley, App 105; Court’s decision in 51 Mich 214 NW2d 564 id. at Mosley, 107, the police advised the defendant of his Miranda rights him began questioning about some robberies. The remain defendant asserted his silent and the Approximately ceased. Id. two hours latеr, again another officer advised the defend- ant of rights began questioning his Miranda him about an unrelated murder, following which the gave incriminating statement. Id. Although this Court concluded that the statement was obtained in Miranda, violation of this Court’s deci- subsequently sion was reversed the United States in Supreme Michigan Mosley, Court S Ct 46 L Ed 2d Supreme Mosley

The Court in addressed the issue police questioning reinitiation of of a defendant of who has indicated a desire to remain silent. The Court acknowledged that Miranda “does not state circumstances, under what if a any, resumption of permissible.” is questioning Mosley, 423 US 101. With to this regard issue, observed, the Court on the one hand, permit the continuation of custodial “[t]o momentary after a cessation would clearly purposes frustrate the of Miranda allowing repeated questioning rounds of to undermine the will person questioned.” of the at 102. being Id. The Court also observed: extreme, prohibition against

At the other a blanket taking voluntary permanent immunity of statements or a interrogation, regardless circumstances, from further wholly safeguards would transform the Miranda into irra- 230 Mich Opinion Court police investigative activity, legitimate tional obstacles to deprive suspects opportunity to make informed intelligent of their assessments interests. [Id.] “sensibly concluding After that Miranda could not be per proscription a read create se of indefinite dura- any upon per- questioning tion” farther after a custody son in silent, has indicated desire to remain holding the Court stated its as follows: admissibility We therefore conclude that of state- person custody ments obtained after the has decided to depends “right remain silent under Miranda on whether his “scrupulously questioning” to cut off honored.” at [Id. 104.] Supreme Mosley Court decided after the trial suppression ruling

court’s in this case but before the only Although Mosley date of defendant’s trial. right involved a defendant’s assertion of the to remain right silent, not an assertion of the counsel, we conclude that the decision to admit defendant’s confession is consistent with the Court’s analysis Mosley. The facts of this case reveal that police immediately questioning ceased further attorney. after defendant asserted his to an reapproach Detective Lister did not defendant until passage significant period, after the aof and after gave codefendant Sands a statement. When defendant expressed willingness give upon a statement being given informed that Sands had a statement, a warnings any given fresh set of Miranda was before questioning Thompson further conducted, was inquired separately also whether defendant wanted to speak attorney. to an These facts demonstrate that right presence defendant’s to insist on the of an attor- case, honored” in this consis- ney “scrupulously was Mosley. in Supreme holding with the Court’s tent foregoing discussion, in view of the Accordingly, did not err in admit- conclude that the trial court we under the law in police confession ting defendant’s suppression hearing defendant’s effect at the time of and trial.

B We now turn to a consideration of defendant’s Supreme claim that relief is warranted under subsequent Edwards, supra. decision in Court’s must overcome two hurdles in order to be Defendant only on the basis of Edwards. Not entitled to relief that his confession was must defendant demonstrate Edwards, obtained in violation of but he must also may properly applied that Edwards be demonstrate either, appellate not war Failing to his case. relief is ranted. We conclude that even if defendant were to applies succeed in us that Edwards to this convincing case, he has failed to convince us that his confession was obtained in violation of Edwards.5 For this rea son, appellate we find that relief is not warranted. Edwards, supra at some initial following police questioning, the defendant invoked his counsel, and the ceased. The next mom- Shea, supra previously, As noted in at Court held retroactively applies pending that Edwards to cases that were on “direct difficulty determining review” when Edwards was decided. The here is pending whether defendant’s case was on “direct review” at the time depends, turn, Edwards was decided in 1981. Resolution of this issue properly on whether defendant’s unresolved motion for a new trial can be pending” decided, Edwards deemed to have been “still at the time or whether the motion was abandoned beforehand. Because we conсlude Edwards that the fail to establish a facts of this case violation event, unnecessary we find it to decide this latter issue. 230

Opinion of the Court county jail ing, police the and asked officers went to speak The defendant refused to to see defendant. them, “he had” to talk. Id. The but was told that rights, officers informed defendant of his Miranda following gave implicating which he ‍​‌​‌‌​​‌​‌​‌​​‌‌​‌​​​‌​​​‌‌‌‌​​‌‌​‌​‌​​‌‌‌​‌​​‌​‍a statement him- Realizing safeguards self. that additional were neces- sary protect request counsel, an accused’s for Court Edwards established second layer prophylaxis right of for the Miranda to counsel: now hold that when an accused has invoked his

[W]e present right during interrogation, to have counsel custodial by a valid waiver of that cannot be established show- only ing responded police-initiated that he to further custo- interrogation rights. dial even if he has been advised of his accused, Edwards, having We further hold that an such as expressed only through his desire to deal with the counsel, subject is not to further him, authorities until counsel has been made available to communication, unless the accused himself initiates further [Edwards, exchanges, police. or conversations with the supra at 484-485.] respect reject

With to the case at hand, we defend- suggestion prohibits ant’s that Edwards all communi- suspect cation between the and a who has requested attorney. reading Rather, an a careful prohibited Edwards reveals that what is is further “police-initiated interrogation.” custodial The decision requested attorney an states that accused who has subject interrogation” is not to “further in the absence counsel, unless the accused himself “initiates” fur- holding Thus, ther communication. in Edwards upon concepts rests of “initiation” and “interrogation.” shortly case, this Detective lister returned

before P.M. 3:40 informed defendant that Sands given inquired had a statement and whether defend- attorney.” ant “would still like talk to an At that point, defendant told “if lister, Ron [Sands] didn’t attorney, give want an neither did he and he would Thompson statement.” Lister then summoned and, Thompson repeated returned, when attorney give desire to waive his to an and Thompson again statement. advised defendant of his rights, following Miranda which defendant con- fessed. In the context of this case, we must determine whether Detective Lister’s statements to defendant shortly “interrogation” before 3:40 P.M. constituted if and, not, whether defendant himself “initiated” the subsequent questioning that led to his confession. purposes interrogation

For Miranda, refers to express questioning equivalent.” or its “functional Rhode Island Innis, 291, v 300-301;100 S Ct (1980); People 1682;64 L Ed 2d 297 v Anderson, 209 App (1995). 527, 532, 533; 531 NW2d 780 equivalent” interrogation “any “functional includes part police (other words or actions on the than normally custody) those attendant to arrest and police reasonably likely should know are to elicit incriminating response suspect.” an from the Innis, supra at 301. general principle, inquiry

aAs a mere into whether changed wanting an accused has his mind about speak attorney present without an is not considered “interrogation” meaning within the of Edwards. Jus- opinion concurring Powell, tice in his Edwards, in upon subject distinguishing touched this when App 464 230 Mich custodial communications permissible between interrogation: custodial suspect custody police between and a

Communications common-place. are It is useful to contrast the circum typical, permissible, stances of this case with custodial suspect and a who has communications between example, police impermissi For do not asked for counsel. bly engaging in routine “initiate” renewed suspects conversations with about unrelated matters. And inquire suspect legitimately may whether a has speaking changed his mind about to them without an App attorney. E.g., Turner, 61, 65; State v 32 Or 573 P2d (1978); Crisler, 679, see 285 NW2d State (Minn, 1979); Marcum, 441, 445-446; State v 24 Wash person 601 P2d It is not unusual for a custody previously expressed unwillingness who has lawyer, change talk or a desire to have a his mind and opportunity Nothing even welcome an to talk. in the Consti preclude police tution erects obstacles that from ascertain suspect ing original whether a has reconsidered his deci supra [Edwards, (emphasis added).] sion. at 490 states, relying concurring Other on Justice Powell’s opinion in Edwards, inquiries have held that aimed at determining suspect whether a has had a of change wanting speak attorney mind about to an do not police-initiated constitute within the of Edwards. In v 2d meaning State, Moulds 429 So 1176, 1176-1177 Crim (Ala App, 1983), the accused invoked her tо counsel but right was unable to con- attorney tact her after an being given opportunity to A sergeant spoke do so. thereafter to the accused for a few and minutes then told her that her attorney would tell her not to make a statement. Id. responded at 1177. The accused that she “wanted to anyway.” go rejected ahead and talk Id. The court that the inter- argument sergeant’s actions constituted

Opinion Court 1178. The court further held rogation. Id. at that ready that defendant’s assertion she was “[t]he if statement, response make a even made to an inquiry ‘changed officer’s of whether she had her speaking attorney,’ mind about to them without an by constitutes a communication initiated the accused at 1179. under Edwards.” Id. D'Entremont, Mass Commonwealth

474, 475; (1994), 632 NE2d 1239 defendant was jail in a rape placed arrested for and cell after invok ing his to remain silent and to have counsel present. subsequently A detective interviewed the vic tim then went to the defendant’s cell. Id. The detective informed the defendant that she had inter viewed the victim and that she knew the defendant had advised the earlier thаt he did not want to if talk, changed mind, but he then she would be willing speak with him. The defendant informed the detective that he wanted to tell his side of the story. Id. The detective advised the defendant of his Miranda rights subsequently the defendant gave a statement. Id. 476. The court held that the detec jail tive’s statements at the cell did not constitute interrogation. Id. at 479-480. The court further deter mined that the defendant, stating that he wanted “ to tell his story, side of the ‘initiated’ further conver ordinary sation in the dictionary sense of that word.” Id. at 480.

Similarly, Thompson, Bunch v 949 F2d 1361 (CA 4, 1991), the court held that a defendant’s statement was product “police-initiated not interrogation” inquiry where it followed an nothing “amounted to more than an effort to ascer- if changed tain Bunch had his mind about wanting App 482 230 Mich attorney.” State, See also McCall v 501 So 2d although (Ala App, 1986) (holding that interro- Crim may suspect requested gation not continue after a has may police legitimately inquire counsel, the whether suspect speaking changed has his mind about Acquin, attorney); without an State v 187 Conn them inquir- (1982) (finding 448 A2d 163 647, 669-670; interrogation); ies about counsel do not constitute App v 8 Va Commonwеalth, 167, 174; Foster 380 SE2d (1989) (holding suspect that once has invoked police may right legitimately counsel, his inquire still suspect changed whether has his mind speaking attorney). about to them without an light foregoing In authorities, we conclude inquiry that Detective Lister’s into whether defendant attorney” “would still like to talk to an did not consti- police-initiated interrogation meaning tute within the of Edwards.

We further conclude that Detective Lister’s remark informing defendant that codefendant Sands had given interrogation. a statement did not constitute any express questioning, The remark did not involve merely transpired but described an event that since Significantly, Lister last saw defendant. Detective attempt Lister made no to discuss the substance of Sands’ with statement defendant or to discuss what any, might if effect, Sands’ statement have on defend- likely In context, ant’s case. this the remark was not response. incriminating to elicit an In McCuaig, 754, 759-760; 338 NW2d 4 (1983), this remark, Court found that a similar which circumstances, was made under similar did not con- interrogation. McCuaig, supra stitute at attorney invoked his to an while People v Kowalski responded that he questioned. The оfficer being comply request with the and that no further would However, would be conducted. Id. questioning then advised the defendant of the nature of officer him the circum- charge against and described that led the to believe that the defend- stances by culprit. responded ant was the Id. The defendant that the officer had been fair with him and stating he had his mind and wished to a changed give that statement. Id. This Court held that the defendant’s response statement was not made in to further inter- by police: rogation opinion, by police officer,

In our the statements made merely which advised defendant of the crime with which he charged was and which described the events which led to charge, interroga- cannot be characterized as further by equivalent. tion the officer or its functional See Rhode Innis, [supra]. Island The nature of the statements were they that it not such can be said that were intended to elicit response. Furthermore, support a the record does not finding that the should officer have known that defendant likely change response was his mind in to the statement. contrary, On the the statement was made connection acknowledgment comply with the officer’s that he would request attorney with defendant’s to see an and that no fur- questioning responded by ther would occur. Defendant unequivocally indicating changed that he had his mind and speak [McCuaig, supra that he wished to with the officer. at 760.] case, under the facts of this we hold

Accordingly, subject police- that defendant was not to further initiated before he con- gave by we Furthermore, defendant, fession. hold that unequivocally that he no wanted an indicating longer attorney statement, and he "wished to initiated give 230 Mich by Corrigan, ultimately

the conversation that led to his confession. attempt No was made to discuss the case with defendant before he made that statement. As the supra Moulds, court observed in at “defendant’s ready [he] statement, assertion that to make a response inquiry even if made in an officer’s ‘changed speaking [he] whether had [his] mind about attorney,’ them without constitutes a communi- cation initiated the accused under Edwards.”

c sum, we hold that the decision to admit defend- proper ant’s confession was under the law in effect at suppression hearing the time of defendant’s 1975 trial. We further hold that the circumstances under which the confession ‍​‌​‌‌​​‌​‌​‌​​‌‌​‌​​​‌​​​‌‌‌‌​​‌‌​‌​‌​​‌‌‌​‌​​‌​‍was obtained did not violate the subsequent Court’s in Edwards, decision supra. Accordingly, admission of the confession at defendant’s trial did not constitute error.

Affirmed. part company (concurring). Corrigan, C.J. with I majority police interrogation I because believe the prohibition against police- violated Edwards1 further interrogation, initiated if defendant is entitled to the application retroactive I not, Edwards. would how apply retroactively ever, Edwards to this case because it should not be considered as on direct ground review. I would affirm the result below on the correctly that the trial court concluded that original Having abandoned his motion for a new trial. made this determination, the trial court need not have reached the substantive issues. Defendant should Edwards v Arizona, 101 S Ct 68 L Ed 2d 378 by Corrigan, relegated remedies available under to the have been seq. et MCR 6.500

i necessary majority, find it to reach I Unlike the the trial court I would hold that issue. abandonment correctly defendant abandonеd concluded that trial. motion for a new judge, trial Oakland reflects that the

The record judgment Judge O’Brien, N. entered the Circuit John January Judge 1976. O’Brien 22, on of conviction days appellate appointed for defendant five counsel timely for a new filed a motion later. Counsel then hearing 1976, and noticed it for on trial on March adjourned thereafter March 1976. The court setting hearing hearing date. On Janu- without new reporter transcripts ary filed the 18, 1977,the court suppression hearing. clerk 3, 1977, On March file to this Court for use transmitted the lower court appeal. This Court returned with codefendant Sands’ approximately six months the file to the circuit court clerk notified defense counsel of later, and the September 27, in a letter dated 1977. action attempt made no The record reflects that defendant pursue a new trial dur- whatsoever to his motion for years. eventually ing Defendant the next fifteen appellate appointment in of new counsel moved for asserted in a letter that he March 1992. Defendant original court and his counsel sev- had contacted the regarding during thе 1970s and 1980s eral times appeal. 5, 1992, Nevertheless, on March motion and dispensed argument Judge with oral O’Brien because he had for lack of merit denied the motion appointed in The Chief for defendant 1976. counsel 230 by Corrigan, Judge acting of the Oakland Circuit Court, however, contemporaneously, appointed almost the State Appellate Defender Office as counsel for (SADO) defendant on 3, March 1992. years April

Two in later, 1994,defense counsel filed “supplemental” support brief in of defendant’s explaining difficulty motion for a new trial, that his locating transcripts of the trial and other records delay preparing caused the the brief. Counsel did evidentiary provide hearing sup- not move for an port allegation original appellate for defendant’s neglected counsel this matter. Thus, the record con- support tains no evidence to this assertion because defendant’s letter is not a sworn affidavit. MCR 2.119(B)(1), 2.611(D)(1), 6.001(D). Defense coun- representations regarding original sel’s appellate defendant and support

counsel do not a motion for a new trial even if contained in an affidavit because counsel testify competently cannot to those facts. MCR 2.119(B)(1)(c). Judge Gage

Then Oakland Circuit Chief Hilda heard Judge defendant’s motion in December 1994, because during Judge Gage O’Brien had died the interim. opinion August issued her on 24, 1995. In all, over years elapsed nineteen had since defendant’s conviction.

Judge initially Gage opined that defendant had holding abandoned his motion for a new trial. This Generally, party may was correct. abandon a by failing proceed respect motion with to it. 60 p § CJS, Orders, Motions & 63. case, this although timely filed and noticed his sixty days motion for a new trial within of the order appointing appellate counsel, GCR 803.1, he 487 People by Corrigan, Concurrence C.J. failed to fulfill his to call the motion to the obligation attention.2 Forest v (On Rehearing), court’s Parmalee App 401, 405; 231 NW2d aff’d 402 (1975), 60 Mich 378 262 NW2d 653 The trial court must ordinarily preside over a on a for a hearing motion new trial. 8A Law & Criminal Michigan Practice, Law, 570, p pro 241. “A motion for a new trial is a court § may, after due be heard at ceeding, notice, time when the court is in session.” v Sanford, 240, 246; 252 Mich 233 NW 192 the trial (1930). Hеre, presided court over a hearing motion, never on the nor did it take the motion advisement under hearing.3 parties apparently the were adjourning waiting for this Court’s decision in codefendant appeal admissibility Sands’ the challenging of his con fession on the grounds allegedly lacked probable cause to arrest him and defendant Kowalski. Defendant failed to renotice his motion for a new trial after this Court affirmed the trial court’s decision in appeal. People Sands, App codefendant’s 82 Mich 25, 34-35; 266 NW2d 652 (1978). Therefore, defendant mistakenly argues that his motion remained pending 2 1976, require In the court rules did not that the court decide motion upon filing. By contrast, for a new trial its mere See GCR 527. present provide court rules that the “trial court shall hear and decide the days filing,” motion within 28 when a defendant files the motion within days period filing after commencement for his brief in this 7.208(B)(3). Court. MCR supra Forest, quoted Advisement, CJS, p 130, In at this Court 2A regarding significance taking court’s action a motion under advisement: consultation; “Consideration; deliberation; judge the act of a or

justice judgment rendering taking time to consider before by counsel, same; argument the consultation of the court after delivering opinion.” before 230 Mich by Corrigan, fact, before the trial the motion was never court. submitted for decision.

Further, when a trial court fails to rule on a motion, appellate presumes an court that the movant has abandoned the motion unless the circumstances People indicate otherwise. v Ill Kelly, App 3d 178 Ill Dec 604 NE2d 1051 (1992). instant case does not rebut this presumption because provided evidentiary support defendant no whatso appellate ever for his that his allegation original coun sel neglected Generally, appellant this matter. evidentiary bears the burden of both an laying foun support request dation to his for a new trial and fur nishing supports any this Court with a record that argument Petraszewsky for reversal. v Keeth (On Remand), App 535, 540; 201 Mich 506 NW2d 890 (1993); Lemanski v Ford Motor Co, App 244, 82 Mich 251-252; 266 NW2d 775 (1978). Moreover, the defend ant must a support create testimonial record to his claim of ineffective assistance of counsel unless the already record support contains sufficient detail to it. People v Dixon, App 400, 408; 552 NW2d Where thе request fails to evidentiary hearing support and the record does not claim, his this Court will not conclude that he was denied effective assistance of counsel. People See Harris, 201 Mich 147, 154; 505 NW2d 889 (1993). Here, likely defendant most pursue elected not to motion learning after of this Court’s decision to affirm codefendanfs conviction. Defendant had more than years two appointment well-qualified after the SADO counsel develop support a record to his assertion ‍​‌​‌‌​​‌​‌​‌​​‌‌​‌​​​‌​​​‌‌‌‌​​‌‌​‌​‌​​‌‌‌​‌​​‌​‍contrary. to the During time, however, defendant never evidentiary moved for an hearing alleging by Corrigan, incompetence of counsel. I affirm would, therefore, Judge Gage’sproper conclusion that defendant aban- original doned his motion for new trial.

n agree majority I with the that the trial court did not admitting err in the con defendant’s confession under suppression trolling law at the time of defendant’s virtually hearing and trial. This case is identical to 1974), (CA Whealon, Hill v 490 F2d 629 in which Appeals the Sixth Circuit Court of declined to con proscription creating strue Miranda4 as on further interrogation suspect after a invokes his requires counsel. The court determined that Miranda provides interrogator to cease until the adequate warnings new and and a reasonable basis voluntarily inferring suspect exists for that the has changed supra his mind. Hill, at 635. Hill and the instant case involve defendants who elected to only speaking resume with the after an officer advised them that a codefendant had made a state adopted ment. Under the construction of Miranda majority agree prosecution Hill, I with the that the police effectively demonstrated that advised rights knowingly defendant of his and he and volunta rily declined to exercise them. majority assuming that, also concludes applies case,

Edwards to this Edwards does not man- majority operates date different result. The under a faulty My assumption. conclusion that defendant disposes abandoned his question for a of motion new trial applies whether Edwards to this case. In Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 Ed 2d 694 L 230 by Corrigan, 1065; 470 US 105 S Ct 84 L Ed Louisiana, Shea v Supreme 2d 38 the United States Court con- (1985), retroactivity Edwards, supra, of and held sidered applied pending that its decision to cases on “direct Thus, review” when it rendered that decision. applies Edwards to those defendants whose convic- yet tions were not final when the Court issued its opinion. purposes application For of retroactive of a decision, a conviction is “final” under the following circumstances: judgment rendered, of a conviction has been

[A] availability appeal exhausted, petition the time for elapsed petition finally for certiorari or a for certiorari Kentucky, 6, 321; denied. n 107 S Ct [Griffith (1987).] 93 L Ed 2d 649 Accordingly, the determination whether Edwards applies under the circumstances of this case turns on whether defendant’s motion for a new trial was still when pending the Court decided Edwards. That issue, turn, hinges on whether defendant aban- doned his original motion for a new trial. The record reveals that defendant abandoned his motion for a new trial pursue appeal and did not dur- 1977 and 1978. ing Hence, apply Edwards does not because defendant’s conviction became final at least years three before the Court rendered its decision. I would therefore affirm the trial court’s deny decision to defendant’s motion fоr a new trial. cannot, join I however, majority’s conclusion that Edwards does not mandate a different result than that Hill, supra. reached under I would hold applies that if Edwards case, to this defendant’s con- suppressed fession must be police because the vio- by Corrigan, prophylactic right lated his to counsel under Miranda. Supreme promulgated Edwards, Court addi- protect safeguards right

tional to counsel under may The held Miranda. Court that the authorities not suspect interrogate right who asserts his to counsel until been him, counsel has made available to “unless the accused himself initiates further communication, exchanges, police.” or conversations with the supra Edwards, at 485. Once invoked, valid waiver of the to counsel “cannot be established only showing suspect] responded that [the to farther police-initiated custodial if even he has rights.” Accordingly, been advised of his Id. 484. at question assuming applies, Edwards is whether Detective Lister’s statements to defendant constituted they “interrogation.” did, If violated the Edwards rule. pur- “interrogation” Court defined for

poses year opin- оf Miranda one before it issued its ion in Edwards: “interrogation” only term under Miranda refers not

[T]he express questioning, but also to words or actions on part police (other normally than those attendant custody) to arrest and that the should know are rea- sonably likely response incriminating to elicit an from the suspect. Innis, 291, 301; Island v 100 S Ct [Rhode (1980).] 64 L Ed 2d 297 Contrary majority, to the I would hold that Detective informing Lister’s act of defendant that codefendant inquiring Sands had made a statement and whether attorney” defendant “would still like to talk to an con- interrogation. stituted Detective Lister should have reasonably likely known that his words were to elicit 230 by Corrigan, C.J. Concurrence authority response.5 The extensive incriininating an questioning when ceased defendant Detective lister testified that he approxi- initially He stated that asserted his to counsel. defendant mately approached in the area a half later he an hour and exchange being He described his with where defendant was confined. defendant as follows: you opportunity speak [by prosecutor] an to to Q. Did have p.m. shortly shortly again or

Mr. аt sometime before 3:40 Kowalski before that? office and advised Mr. Kowal- A. Yes. I went into the Fire Chief’s transpired what had earlier ski that we had received a statement of attorney? and asked him if he would still like to talk to you you Q. Did tell him who received that statement from? Yes, A. sir. Q. Who was that? A. From Ronnie Sands. you? Okay. say Mr. Kowalski to Q. And what did attorney, A. if want an neither did he and he He said Ron didn’t

would make a statement. you back to Mr. Kowalski with the news The Court: When went you say? of what Mr. Sands had done what did Yes, pardon me. [Defense Counsel]: Yes, wrong, [By me if I am but is it Q. Defense correct Counsel]: you true, Mr. not when went back to Mr. Kowalski and indicated given participation Sands had a statement about his in the crime rights, and waived his then Mr. Kowalski said—if Sands doesn’t speak attorney, want to an neither do I. Now is that true or not to true? basically A. what I said. That’s you Mr. what the effect of Mr. Sands’ Q. Did indicate to Kowalski time, statement to the and the Prosecutor would be at that prior giving Mr. statement? that is Kowalski second A. You mean did I tell Kowalski what Sands had said? you him Q. When went back and talked to after Saifds had indi- give statement, point, wanted to at that when Mr. Kowal- cated he speak attorney, want to to an neither ski said—since Sands doesn’t that, you I, prior him in manner what the do did indicate to might effect of Sands’ statement have on his case? No, I A. I don’t think did. by Corrigan, majority on relied does not control here. The majority’s analysis part flaw in the stems from treating question Detective Lister’s remark in iso- contemporaneous, sequential lation rather than as together, statements. Viewed Detective Lister’s question subjected remark and defendant to “interro- gation” supra. Innis, under Judicial Court Massachusetts con- sidered conduct similar that involved in the Brant, instant case in Commonwealth 380 Mass In 876; 406 NE2d 1021 Brant, Florida officers the arrested defendant and his codefendant high-speed involving exchange after a chase the gunfire. Eight days prosecutor later, an assistant from deputy Massachusetts contacted a sheriff Florida request to an interview with the defendant his robbery regarding codefendant that had occurred deputy two months earlier. The sheriff then inter- eventually obtaining viewed the codefendant, an incriminating robbery. regarding statement the The deputy reported sheriff the codefendаnt’s confession days to and, the Massachusetts authorities a few attorney later, the Massachusetts assistant district and two detectives flew to Florida. The codefendant subsequently signed transcription a written of his oral statement. The defendant and codefendant were then charges arising arraigned on from the Florida inci- deputy arraignment, dent. After the sheriff and the question sought Massachusetts authorities the you anything The Court: Did tell him about the substance of you? Sands what had told No, anything, just I Detective Lister: don’t I said I believe asked he him if wanted to make a statement. 230 by Corrigan, regarding the Massa- his codefendant defendant and unequivocally asserted Defendant chusetts crime. whereupon Massachusetts one of the counsel, interjected had made the codefendant authorities deputy the exis- sheriff confirmed a statement. privately conversing statement. After tence of the the defendant informed codefendant, the with his He to make a statement. that he desired authorities response questioning himself in incriminated then by deputy the sheriff. Massachu- Judicial Court of Brant, the defend- denial of the reversed the trial court’s

setts suppress. Although Massachusetts ant’s motion to the United States decided Brant before court Supreme application its Edwards, decision in Court’s The court consistent with Edwards. of Miranda is suspect requiring as that when construed Miranda attorney, police must an states that he desires attorney suspect interrogating is until cease explained: present. supra at 882. The court Brant, person obtained after a Not all statements prod- custody be taken into are to considered has been freely “Any given interrogation. and volun- of statement uct course, tarily any is, compelling influences of without [Miranda, supra at A “com- admissible in evidence.” 478.] express necessarily pelling in of influence” is not the form inquiry questions. the authorities used here is whether normally actions, other than those attendant words or they custody, known were should have to arrest likely incriminatory response reasonably from to elicit an objective suspect. [Innis, supra at The test is 301.] one. at 883.] [Id. “interrogation,”

Applying of the Innis definition interrogated that the defendant was court determined by Corrigan, when, in violation of Miranda after he asserted his counsel, the authorities informed him that his codefendant had made a statement. Id.

Similarly, Detective Lister’s statement to defendant given that codefendant Sands had fol- statement, inquiry lowed whether defendant still desired counsel, constituted under Innis. Detec- informing tive Lister’s action of Sands’ relating statement be cannot deemed conduct to the custody. supra routine incidents arrest and Innis, Oregon at 301; 462 US Bradshaw, 1045; 103 S (1983). Ct 77 L Ed 2d 405 It comes as no sur- prise that defendant reconsidered his decision not to speak upon learning with authorities that Sands had given robbery. Although a statement about the not dispositive, unquestionably Detective Lister intended informing this result. No other reason exists for defendant of Sands’ Therefore, action. if Edwards applies sup- case, to this the trial court erred in not pressing inculpatory defendant’s statement because Detective Lister should have known that his words reasonably likely incriminating were to elicit an response from defendant. exemplified majority

The intricate dance in the opinion struggle reflects the of stаte courts to respond Supreme questionable Court decisions of legitimacy. my view, Court again improperly Miranda and in Edwards thrust prophylactic exercising on courts, rules the state supervisory powers possess general it does not over procedure. issues state criminal Connecticut v Barrett, 523, 528; S Ct L 93 Ed 2d 920 beyond peradventure It is that defendant voluntary; Kowalski’s confession was it was not even 464 230 496 by Corrigan, C.J. Concurrence compelled self-incrimination. product the of arguably therefore, aptly demonstrates the case, instant The and Edwards of the Miranda prophylactic nature rules violated without rules, because Miranda were Quarles, v 467 the New York violating constitution. 2d 550 654-655; 2626; (1984). S Ct 81 L Ed US 104 rules on the exis depends these legitimacy The of authority legislate Court to Supreme of either tence requirements or beyond that constitutional go rules authority Grano, over state courts. Con supervisory ‍​‌​‌‌​​‌​‌​‌​​‌‌​‌​​​‌​​​‌‌‌‌​​‌‌​‌​‌​​‌‌‌​‌​​‌​‍The Truth, (Ann the Law Arbor: Univer fessions, pp Neither the sity Michigan Press, 1993), of 173-198. grants Fifth nor the Fourteenth Amendment the prophylactic Supreme power Court to legislate the recognized The Court this rules for state courts. itself the long ago, rejecting of federalism notion principle jurisdiction the federal grant that authorizes general a federal common law. promulgate court S Ct Tompkins, 64, 78; Erie R Co v 304 US (1938). L Ed 1188 lawmaking Supreme power, the absence of authority establish rules must prophylactic

Court’s supervisory power over rest on existence state judicial Court has held proceedings. power supervisory that it has no such absent consti- Phillips, 209, 221; violation. tutional Smith Accordingly, Ct 2d 78 102 S L Ed its pp illegitimate. Grano, decision in is 173- Edwards 198. surprise, then,

It comes as no that state courts effect of rules struggle prophylactic avoid the Amendment exists. The when no true Fifth violation perverse instant case results fol- exemplifies prophylactic rule —a correct low from applying by Corrigan, application require suppres- of Edwards would voluntary sion aof statement that not even defendant maintains was obtained in violation of his Fifth protection against compulsory Amendment self- majority responded incrimination. The unjust has to this by drawing unconvincing result distinctions to join major- avoid the reach of Edwards. I cannot ity’s consequences Supreme effort to avoid the question Court’s decision in Edwards, but I underlying authority United States Court’s dictate this result.

Case Details

Case Name: People v. Kowalski

Court Name: Michigan Court of Appeals

Date Published: Sep 29, 1998

Citation: 584 N.W.2d 613

Docket Number: Docket 190352

Court Abbreviation: Mich. Ct. App.