*1 Ray v RAY PEOPLE 1986, 10, Lansing. Docket No. 82573. June at Submitted Decided 4, 1986. appeal applied November Leave to for. dwelling by jury Daniel E. was convicted of arson of a a Court, Freeman, the Circuit Genesee Donald R. J. Defendant prison was sentenced to a term of from 160 to 240 months. (1) appealed, claiming: Defendant error the court’s denial of pretrial suppress consisting his motion to incrimi- evidence of trooper nating statements he had made to a state after trooper conducted a examination of the defen- dant, and error in the admission into evidence of those state- (2) trial; ments at that he denied his constitutional presence photographic lineup at a counsel conducted the during day eyewitness the fire after which an had identified defendant as the individual the witness saw flick a butane lighter patio premises shortly on the before fire (3) started; imposing and court abused its discretion in which sentence exceeded the recommendations of the Sen- tencing Guidelines. Appeals The Court held: Notwithstanding rights by 1. a written waiver of executed defendant, the record unclear as to whether or not defendant freely voluntarily had waived remain silent attorney present during post-poly- to have his graph interrogation trooper. examining conducted magistrate and the circuit who denied defendant’s motion suppress relating evidence to statements made during post-polygraph interrogation failing erred in conduct Walker to determine whether defendant did rights in fact waive constitutional mentioned above. 2. There was sufficient evidence at the examina- support alleged tion to a bindover without defendant’s confes- sion. judge properly photographic lineup The trial admitted the References 2d, seq., Am Jur Criminal 732 et Law 758-763. §§ 2d, 531, 529, 542-551,555-557, Am Jur Evidence 582. §§ Attorney See the annotations in the Index to or Annotations under Attorney; Assistance of Confessions and Admissions. entitled to at trial. Defendant was not identification evidence lineup photographic presence at time the of counsel point yet the clear focal since defendant was was conducted investigation that time. *2 departing judge explained from from his reasons 4. The trial imposed Sentencing did not and the sentence Guidelines the Appeals. judicial Court of the conscience of the shock hearing. Defendant’s conviction shall for a Walker Remanded if trial court a new trial the be set aside and shall have rights had not waived his mentioned determines defendant However, if be affirmed the conviction shall above. rights. his finds that defendant had waived trial court J., Walsh, under the He would hold that D. F. dissented. magistrate examining nor the of case facts this neither duty sponte to conduct a Walker had a sua hearing of to the voluntariness of defendant’s waiver determine right or Sixth Amendment remain his Fifth or silent interrogation during post-testing right present to have counsel by examiner. He would affirm. Opinion of the Court — — 1. Law Confessions Voluntariness Confessions. Criminal examining magistrate generally A is not re- trial court or an quired question a of the voluntariness of confes- address the however, sponte; exception general to that rule sion sua an by question is a substantial raised exists cases where therefore, itself; in a case where it is not clear factual situation freely voluntarily had whether or not the defendant and prior right right to waived his to remain silent and his counsel interrogation making self-incriminating at an statements immediately preceded by session that was a exami- by police interrogator, court or nation conducted trial examining magistrate sponte hearing to must sua conduct a (US determine the voluntariness of the defendant’s confession 20). Const, 1, VI; 1963, Ams and art 17 and V Const §§ Right Adversary Proceedings. — — 2. Law Criminal to Counsel right following An accused has a to the assistance of counsel arraignment; right to such counsel exists whenever attempt incriminating to elicit statements from the accused depend by right upon request does counsel not for VI). (US Const, the accused Am Right— — 3. Law to Counsel Criminal Waiver. counsel; may right A defendant waive the to assistance of where the state seeks to introduce evidence obtained in absence of counsel, upon prove by it is incumbent the state to waiver showing intentionally intelligently the defendant relinquished right; which he knew to be a the defen- apprised protection dant must have been of the nature of the provide attorney stage an proceeding could at the issue; standard, applicable waiver to be tested strict to a stage pretrial procedure, trial or to a crucial and courts must (US indulge every presumption against reasonable Const, VI; 20). 1963, 1, Am Const § art Walsh, D. F.
Dissent J. — — 4. Criminal Law Confessions Voluntariness of Confessions Right— to Counsel. examining magistrate A trial or court an does have to conduct a to determine the voluntariness of a defen- dant’s waiver of his to remain silent or his Fiñh or Sixth present during interrogation Amendment to have counsel in a voluntarily case where the defendant submitted to a prior examination and advised examina- (1) testing tion phase the examination consisted of a *3 preceded (2) questioning phase, and followed he had a anything silent remain and that could said be used (3) against trial, questioning him at test the and the could attorney present not be conducted with his but he could answering stop questions during during at time the test or questioning attorney before or after and consult his with (US VI). Const, Ams V and Frank Kelley, J. General, Louis J. Attorney Caruso, Weiss, Robert E. General, Solicitor Prose- Kuebler, Donald A. cuting Chief, Attorney, Appel- Sandford, and Mark Division, late Prose- Assistant cuting for Attorney, the people. Sheehan,
Terrance P. for appeal. defendant on P.J., Before: and D. F. Beasley, Walsh JJ. Hood, Defendant, P.J. Daniel Ray, Edward Beasley, of arson a dwelling, convicted of in violation 750.72; MCL of MSA 28.267. He was sentenced to 156 op Opinion the Court nor more than than 160 months not less serve right. appeals prison. of as in Defendant months appeal, First, raises three issues. defendant On requiring rever- it error claims that was defendant incriminating suppress deny his motion sal to polygraph exam- him to the made statements iner and to into evidence admit these statements attorney. objections by his over at trial against charge out a fire arose of The occupied apartment formerly in started an which by pre- The evidence of friends. two the fire had been revealed that trial sented intentionally The also revealed set. evidence day preceding fire, defendant had as- on the apart- moving out his two friends sisted ment. defendant’s friends apartment had evicted The landlord nonpayment rent. for neighbor friends testified that A of defendant’s just man the fire he observed a started before apart- lighter patio flicking a butane on neighbor also ment where fire started. in the he had the man earlier testified that seen apartment. day helping out of the someone move neighbor testify he had re- went on to The ported and, to the observations day lineup photographic ing on the follow- as the conducted fire, he had identified defendant flicking lighter. a vital man who had been part testimony As prosecutor case, of his also offered police sergeant of a state that defendant setting allegedly fire, had confessed to which testimony objection over the of de- was admitted fendant. *4 at admitted that he
Defendant testified trial. He apartment general had in the been area building any started, when the fire but he denied starting Through involvement in testimony, the fire. his own on to an alibi defendant went assert People v He defense. claimed he and one of his friends apartment just who had out of moved had driving apartment building been near when they saw the Defendant fire. testified after he they and his friend saw fire to the went scene watch. also Defendant denied that had con- fessed. previously by indicated,
As the first issue raised appeal deny defendant on is that it error suppress testimony his motion to of a concerning allegedly incriminatory officer state- allegedly ments made defendant. Defendant incriminatory following made the polygraph statements a by Michigan
examination conducted Sgt. State Police Robin Bratton Bratton. testified both and at examination trial. agreed The record had reveals defendant polygraph submit to the examination. Prior to the examination, counsel, defendant and his who ac- companied ap- site, defendant to the examination parently were informed that the exami- nation could be conducted while defendant’s may counsel was in room. While this be better practice when a examination is con- professional purpose ducted a whose sole is to opinion person telling form, an whether a is part purpose truth, when, here, as seemed be to obtain an admission or statement from the person against trial, tested to use him in his it is good difficult prohibiting to see and valid reason for being present, particu- counsel from larly after the is instrument detached.1 present,
While his counsel was still the exam- Sgt. iner, Bratton, handed written "Polygraph form Waiver” which consisted of four (1) "Rights” largely sections: section which Barbara, See 255 NW2d *5 App 31 156 op Opinion the Court (2) Polygraph Act;2 Protection from
taken (3) warning”; a "Waiver” of "Miranda3 standard (4) "Acknowledgment” rights; an and Miranda ambiguous. essentially Bratton, who which polygraph and played of examiner role the dual rights warnings police detective, and read the while his coun- to defendant form included present from oral waiver obtained an and sel was him. Defendant "Acknowledg- signed the then form, which on the written ment” included provided: willing polygraph examination to take a 1. I am questioning, testing be-
consisting phase and of a after. fore and to remain I have the I that 2. understand say during I that anything and that
silent
after, can
questioning, before or
testing phase and
I further
against me
a court
law.
used
be
my right
re-
may exercise
I
understand
stop answering questions
any
at
main silent and
time.
test and
I
3. understand
after,
questioning,
and
cannot be conducted
before
actually present
in the examination
lawyer
with a
room,
However,
willing
presence.
I am
to waive his/her
and
fully
I
I
understand that
have
at
lawyer
to
any
with and have the assistance of a
talk
during
questioning
test or
time
any
may stop
questioning
that I
or
and
test
right.
time and exercise
promises
me
4. No
or threats have been made to
pressure
against
and no
me.
kind has been used
5. This
me
I
statement has been read to
my
willing
I
rights
understand each of
am
rights
waive
and take
these
exami-
nation at this time.
Miranda
et
MCL 37.201 v
Arizona,
seq.;
MSA
384 US
17.65(1)
436;
et
86 S Ct
seq.
In this called Bratton as a witness at the examination. Be- objected testified, fore she defense counsel as fol- lows: Honor, Mr. Wheaton: Your if I [Defense Counsel] *6 time,
might in, at Sergeant this before the comes I’m going to object any testimony from this witness.
The Court: Which witness? Bratton, Mr. Wheaton: The one Robin it? is And I’m kind of—this is kind of a delicate situation. specific There purpose was a for which she became involved with Mr. Ray require which did not her to this with anything do more required than what was for specific purpose. She had no reason to talk afterwards, Ray Mr. before—or and that is what testimony going Something to involve. after, happened that testimony, I may objecting and I’m to the doing and I’m it very carefully because get don’t want to into the area that I—we think problems cause some it happen but did after- wards. She was Mr. Ray aware that had an attor- ney. She was aware I—because I had been out there before. She did not contact me and if I ask could talk don’t believe witness, to—she could my talk to and I any that she had doing business in so, and the statements that are Imade think are inadmissible, going and I’m to— The Court: I’m going you’ve completely lost — me. What’s the witness’ name?
Mr. Sergeant Wheaton: Bratton. Okay, The Court: dealing we’re with a state police officer? Mr. Wheaton: That’s correct. She was in con— The Court: I time this, take it that some after she talked to Mr. Ray; you’re is that what saying? Mr. correct, Wheaton: That’s and that’s what going what, she’s and to testify guess to as I question response. because, I’m objecting to it number one, she had talking no business to him at this time, just and I don’t think it’s admissible. There op Opinion the Court talk- to have been for her no reason
was—there’s point. ing it was whatever. ble, without whether made or I know don’t Mr. at this question or statements and answer is admissi- think the evidence I do not specific to be more know how I don’t getting think we that I don’t an area into say get should that she I—I will into but should not to be. She was there was conversation talking no reason him. She had have been doing, and she was done with what having any further no reason be— any— Ray. objectingto I’m Mr. with might testimony. Anything that she her all of testify to. premature, isn’t it’s a little Court: I think The goingto— it? I’m Well, as— Mr. Wheaton: objection going to overrule Court: I’m this time.
Sgt. she informed then testified Bratton rights and that of his Miranda on the record made mention was waived them. No poly of either examination of graph *7 polygraph or the examination signed. the counsel asked When defense defendant officer: "What was being Ray Mr. the reason for prosecutor you?”, to the assistant out there to talk presumably successfully objected, fact because the polygraph was inadmissible. examination conference, counsel defense After an in-chambers permit question officer his and the was withdrew alleged testify admissions. ted to as to defendant’s preliminary objection At the was made. No further examination, polygraph only the the cross-examination examiner-police to what officer related "Right” response in meant when he said defendant following the officer’s accusations to hearing held to was No Walker4 examination. (On Rehearing), People NW2d v Walker alleged determine the voluntariness statements.
After defendant was bound over to the circuit trial, court suppress filed for written motions to Sgt.
defendant’s so-called statement quash Bratton the information. These mo- by acting Judge Harry tions were Circuit heard P. transcript preliminary Newblatt on the examination. No further evidence was offered. No Although prosecutor Walker was held. offered in evidence the waiver docu- ment, the declined to receive it ground on he was limited to matters placed in evidence examination. Regarding suppress, specifically the motion to he indicated:
Then, up query Sergeant comes as to Brit- testimony ton’s believe—of —Bratton—Bratton—I alleged to been Mr. by Ray. statements Now, ously not have made objected those statements strenu- were Wheaton; Mr. but he felt constrained to explain objections; although his reasons for motion, in period as to testifies of time elapsing giving of between the Miranda and the being Nothing statements in testimony, made. fact, in the consequently, through pinpoints passage a fatal of time between warnings statement; and,
Miranda argument all over the Sergeant’s testimony, placed upon the reasons never were However, the record. at a later time hearing, inadvertently, the word mentioned, at which time Mr. Perkins was carefully examination —was the Prosecutor who handled the —that’s careful state that he had brought never that before the Court —ah—and the argument word was used the —in Mr. Whea- ton. question Sergeant
There’s no gave Bratton *8 warnings; Miranda unobjected nothing to— contra Sergeant to the statement that Bratton App 31 Opinion Court signed acknowledgment of RayMr. an made that receiving Miranda. questioning, Mr. During after the course of involvement, according to Ser-
Ray denied Bratton, questions, response in to two geant that, yes, indicate answers were taken to setting in the of the fire. involved those statements Defense raises the issue ambiguous. Perhaps so. I might necessarily conjecture. did well be They find them so. were . . . finds that the lower
Consequently, Court finding discretion in its court did not abuse its denies presented by the Defense. both the motions trial, Bratton Sgt. testified jury, At before his Miranda warnings, gave she took a different turn: questioning and then the Blanchard, Assistant How Q. Prosecutor] [Mr. morning? him long you talk with did A. Several hours. talking background questioning in
Q. youDo do to him? Yes,
A. I did. Q. you got into an interview with him? Before Yes, A. I did. regards— you
Q. Did he make statement objected, Defense counsel and then: happened, The Court: What what was ruling, it was allowed? Court’s Mr. Wheaton: It was allowed. then offered the prosecutor document, acknowledgment, including the separate on the only jury
but the absence regarding dire defen- purposes record for of voir In the absence alleged dant’s statement. *9 Ray Opinion of the Court ruling jury, sustained the trial sup- denying judge in the motion to request press. made for a Walker No none was offered. hooking prior Sgt. testified that Bratton then up detector, she obtained to the lie defendant background and took from defendant information concerning him, she took which from a statement Sgt. jury, testifying Brat- before notes. While had conducted the fact that she ton did not reveal polygraph examination, referred to the en- but procedure only She said the an "interview.” tire as procedure, included whole which examination, immediately two hours. She said took about following "interview,” the two-hour setting consistently denied in which defendant again about who fire, confronted defendant she testify that in Bratton went on to started the fire. confronting following defendant "interview,” him that she did not she told exam during telling the truth he had been believe merely re- She said defendant examination. sponded, "right” Bratton to Bratton’s assertion. that she that he and then told defendant believed the fire. defendant his friend had started She said again responded, "right.” her Bratton concluded stating testimony by that she believed defendant’s "right” agreed responses indicated that he had Among concerning her accusations the fire. with things, specifically other she testified: Now, Q. at the conclusion of the interview did fire? you again confront him about who started the Yes, A. I did. Q. you of ask him then in —Mr. Did sort —a Mr. question, you thought he and
rhetorical Rod Anderson had set the fire to the apartment? Yes, him. A. I did state to App 31 anything, say you, if when Q. What did you that to him? said "Right.” said, A. He response, and, trial,
At testified way "right,” but he used the word said Specifically, he said: fire. he started the admit that Why Wheaton, Counsel] did Defense Q. [Robin "Right”? you say *10 insinuating kept telling me, for about A. She approximately I had burnt that 23 hours that kept telling building didn’t, her I and she I and just kept on. on and During of and cross-examination examination Sgt. mentioned the fact of Bratton, side neither necessity test, of skirted but both the lie-detector appeal, defendant to it. On around and close and cir- under the facts it was error claims that in evidence case to admit cumstances of this exchange polygraph between defendant following immediately the lie-detector examiner test. depends upon consti- two
Resolution of this issue provisions. Fifth First, is defendant’s tutional right5 to be free from self-incrimina- Amendment tion, providing: specifically compelled any person crimi- . . . No shall be against himself, nor be nal case to be a witness property, deprived liberty, life, due of or without process of law .... right Second, Sixth Amendment is defendant’s specifically counsel,6 providing:_ see, 1963, 1, Const, V; 17. Am Const art § US also 1963, 1, Const, see, VI; art 20.§ Am also Const US People shall prosecutions, the accused criminal all have the assistance ... enjoy his defence. counsel for situation involves a factual v Leonard7 presented
remarkably in the within to that similar Leonard, took a the defendant case. police pursu- by the state conducted
examination ant to a polygraph stipulation that neither the results opinion anyone’s the results as to
"nor admissi- would be examination” prosecu- Nevertheless, trial. in evidence at ble sought into evidence to introduce a confession tion shortly allegedly examiner made to poly- from the was detached after the defendant graph. the statement trial court admitted The convicted. We the defendant was evidence and ground that, since the on the reversed had not right understandably knowingly waived post-poly- present at the his counsel to have interrogation, graph his Sixth Amendment Supreme affirmed Court counsel was violated. majority Appeals reversal, but the Court Fifth Amend- decision on the defendant’s based its say- self-incrimination, free from ment be *11 ing: However, agreement on the premise we our knowingly
ground the defendant did not in view of the his to remain silent waive prosecution and the stipulation executed the polygraph the ex- whereby the results of defense opinions would and drawn therefrom amination not be admissible [Leonard, supra, p in evidence. 210.]
Consequently, whether, under first review we decision, Fifth Amend- the Leonard 7 421 Mich 364 NW2d Opinion the of Court precludes in admission
ment to remain silent post-polygraph evidence of his statement. prosecutor argues may distin- that Leonard be guished it from the case because contained within prosecutor the additional fact that the assistant specifically stipulated and the defense counsel opinions regarding polygraph the results of the in would be admissible evidence. presence case, defendant,
In in the within the signed polygraph Everyone counsel, the waiver. Michigan polygraph knew that in the results of a are in examination spite not admissible evidence.8 nothing "polygraph fact, in of this signed waiver” that defendant indicates that giving fact of the and its result in would not be admissible evidence under existing contrary, law. On the agreed anything might waiver, defendant say "during testing phase questioning against before or after” could be used him in necessarily court. We believe this created an ambi- guity "acknowledgment” portion in the signed by as to whether evidence would from be admissible polygraph procedure. light ambiguity, magistrate of this both examination and the cir- judge hearing suppress cuit the motion to should have been alerted to the need for a Walker hear- ing freely to determine whether defendant voluntarily waived his to remain silent and present attorney during interroga- to have his giving tion. It was clear error to assume that mentioned, the lie-detector test could not be deciding considered, much less this consti- vital contrary, tutional issue. On the what defendant Barbara, supra. See *12 People 45 v Opinion op the Court waiving understood he was when he took the polygraph examination was essential to resolution rights of whether defendant’s constitutional present during remain silent and to have counsel interrogation were violated. People given Garrison,9
In v the defendant was being charged examination before complaint with a made a thirteen- connection year-old girl. polygraph, Prior to the the defendant given warnings. Miranda When the telling examiner told the defendant he was not really truth and happened, if asked he wanted to tell what charges the defendant admitted the thirteen-year-old. made The defendant was department then taken to the where, sheriffs after again being given warnings, Miranda he made a admitting penetration statement had oc sup curred. No motion was made before trial press trial, the statement. At defense counsel did object to admission in evidence of the confes appeal, pointing ques sion. On after out that preserved citing Wyrick tion had not been v Fields,10 we held that there was no error admit ting Wyrick, the confession into evidence. Supreme United States Court held the validly had waived his Fifth Amendment during interrogation, counsel a custodial it but persuasive should be noted there was a dissent emphasized where it was the defendant was subject never post-polygraph told he would be to a interrogation. Catey,11 ques- the defendant was immediately following
tioned
the arson-murder of
App 640;
(1983),
9 128 Mich
Prior
the defendant’s statements
which the court found
voluntarily
trial
made and admissible. The
were
testimony
apparently
believed the
court
four
never re-
officers that
the defendant
appeal, noting
quested
speak
attorney.
to an
On
unequivocally
elected
the defendant had
silent,
that neither the defen-
to remain
we held
Fifth
to remain silent nor
dant’s
Amendment
had been
his Sixth Amendment
to counsel
by admitting
in evidence.
violated
his statement
Catey decisions under-
Both the Garrison and
Fifth Amendment
score the fact that waivers of
proce-
rights surrounding polygraph-examination
significant questions as
dures raise substantial
voluntarily and
such waivers were
to whether
certainly
understandingly
decisions
made. These
magistrate
support
and the
that the
our conclusion
should have been alerted to
hearing.
the need for a Walker
part
addition,
we note that an essential
rights
attorney
Miranda
is the
to have an
present during interrogation.
fact, Miranda,
Supreme
the United States
Court said:
time,
oppor-
At that
the individual must have an
tunity to
attorney
confer with the
and to have him
present during
subsequent
questioning.
If the
attorney
individual cannot obtain an
cates that he wants one before
and he indi-
spealdng
police,
respect
they must
his decision to remain silent.
[Miranda, supra,
In the within while there was no stipulation part polygraph as to what exam- ination transaction between defendant and the polygraph inadmissible, examiner we believe implicit that it was that at least the fact that a polygraph examination was administered and results of the examination would not be against Arrayed admissible in evidence. this is the language any- broad waiver that thing phase might say "during testing questioning before or after” will be pointed above, admissible evidence. As out we inherently conflicting believe these two considera- surrounding admissibility tions of evidence procedure necessarily from the created ambiguity voluntarily an as to whether defendant understanding^ to remain his waived and silent. We also believe to whether defendant ingly ambiguity this extends voluntarily and understand- to coun- Fifth Amendment waived interrogation. post-polygraph at this sel People Hooks,12 for a Walker we remanded hearing, holding have should the trial hearing necessity for a Walker to the alerted been the defendant where to determine voluntariness had been shot and hospital made in a his statement was life-support We devices. attached while though held, no motion for Walker even so suppress was made. the statement or to general recognized Judge Riley Hooks, require to raise sua a trial court rule does not sponte question con- of a of the voluntariness exception to However, that an she believed fession. ques- general a substantial rule exists where situa- the factual is raised tion tion voluntariness of Hooks itself, held that the facts and she exception. brought Thus, Hooks, it within hearing. for a Walker we remanded above, conclude that our discussion we Based on required in the case. within such a remand is also respect Fifth that, with We find to have his to remain silent and Amendment during interrogation, attorney present the burden proof prosecution valid to show a was on the *15 At the examina- defendant. prosecutor tion, polygraph oifer in evidence failed to was a neces-
waiver instrument which
ingredient
sary
the claimed waiver. Neverthe-
magistrate
obviously
that a
less,
was
aware
administered
examination had been
alleged confession.
time as the
or about the same
necessity
to the
for
have
alerted
He should
been
(1982),
App
den 413 Mich
Similarly, judge, when faced quash suppress a motion to with the and a motion to police testimony regarding officer's alleged confession, should have been alerted to the necessity findings for a Walker with re- garding important, and, the voluntariness more reaching the extent of defendant’s waiver. Before appropriate findings, results under these con- we prong appeal, namely, sider the second defendant on whether validly waived his Sixth Amendment right to the assistance of counsel. signed
After defendant waiver form the presence counsel, of his defendant’s counsel left the examination room and waited for defendant in station. The two-hour examination and follow-up, accusatory questions the examiner’s oc- advising curred without further defendant of his rights. appeal, argues constitutional On that it was clear error to find that he had made a voluntary, knowing intelligent waiver of his purposes "Sixth Amendment” to counsel for accusatory, follow-up questions posed by polygraph examiner.13 addressing issue, this we first note that this judge’s ruling
Court will reverse a trial on a suppression only ruling clearly motion if the However, erroneous.14 we also note that defen dant’s Sixth Amendment attached at the time of the to counsel had examina previously arraigned tion, since he had been on charge. addition, the arson defendant’s Sixth NW2d 633 [14] US Const, v United States Am VI; Const 1963, Currency, art 1, 20.§ 326, 329; *16 31 156 Mich
50 Opinion of the Court applied poly right at the counsel Amendment right graph examination, this exists when since incriminating attempt to elicit ever Furthermore, Sixth Amendment statements. right upon request depend does not to counsel indulge and courts will for counsel in the accused presumption against every waiver.15 reasonable supra, People Leonard, Justice v Williams addressing separate opinion same Sixth this filed a right waiver issue. to counsel Amendment Court did not ad- of the Leonard other members right issue, to counsel Amendment dress the Sixth previously indicated, reversal on the but, based of his Fifth Amend- as invalid waiver against right Leonard, self-incrimination. ment the other Justices no indication whether there is agreed or not. concurrence with Justice Williams’ they purposes, did we will assume For our disagree discussing After of voluntariness.
with his basic test right importance counsel, test for deter- announced basic Justice Williams voluntarily, mining has a defendant whether intelligently knowingly waived his counsel this situation: then, at our rule analysis From our we arrive has to counsel been for waiver where invoked and counsel has consulted: been prove upon the state to 1. It is incumbent waiver. proved showing: may
2. a) be Waiver intelligent relinquishment, an intentional and b) right. of a known may of assistance The defendant waive doing if
of counsel
he knows what
eyes open.
is made with his
choice
apprised of the nature
3. Defendant must be
(After Remand),
39, 52;
People
NW2d
See
v Bladel
—
(1984),
—;
1404;
5. in every Courts will reasonable sumption against waiver. applies
6. The strict standard at trial or at a stage pretrial procedure. [Leonard, crucial su- pra, pp 223-224.] represented case,
In the within defendant was present counsel who was when the signed. Consequently, it waiver instrument was magistrate within that context the and the acting applied circuit should have the basic test to determine whether defendant waived his right presence constitutional during to the of counsel interrogation. post-polygraph magistrate previously indicated, As and the judge hearing suppress the motion to necessity should have been alerted to the of a holding Walker before that defendant’s Fifth Amendment to remain silent and Sixth presence Amendment to the of counsel at the post-polygraph interrogation had been waived. this hearing, it case was error to fail to have a Walker though specifically
even defendant did not request Consequently, one. we remand this case hearing. for a full Walker
Since our review of the record indicates suffi- cient at evidence examination to support alleged a bindover without defendant’s confession, we do not set aside the bindover. argues issue,
In his second that he presence was denied his constitutional to the photographic lineup of counsel at the conducted day after the had fire for the witness who reported observing balcony a man on the apartment just appeal, before fire started. On 156 op Opinion the Court custody at the
defendant admits that he was not lineup. photographic Defendant time corporeal lineup "readily for a also not available” lineup photographic at ducted, the time the was con- compul- subject legal since he was not lineup. appear at a No warrant had been sion police and, thus, issued had no means compelled could have been which defendant photographic appear. fact, the time of the lineup, probable yet for a warrant did not cause exist.16 yet
Furthermore,
the clear
defendant was
investigation
point of
which would re-
focal
quire
photographic
presence
of counsel at the
lineup.
included
The record reveals that
lineup
photo
only
of defendant in the
because he
*18
person
in the
was a
who was known to have been
day
the fire.17In this
area of the fire on the
of
situation,
factual
we conclude that defendant was
presence
at
time
not entitled to the
of counsel
photographic lineup
was conducted. Since de-
fails to make
further assertions that
fendant
photographic lineup
improperly
herein
was
unnecessary
conducted,
it
we find that
is
for
required,
court, if
trial
a retrial
is
to conduct a
hearing
independent
as to whether an
basis for
the identification has been established.18 The trial
lineup
judge properly
photographic
admitted the
and, if
identification evidence at trial
defendant
is
again
retried, such evidence will
be admissible.
appeal,
argues
In his third issue on
People
that,
Coles,19
under
v
the sentence of not
People
(1984), lv den
excess disagree. constituted an abuse of discretion. We judge The trial guidelines realized sentence exceeded the explained judicial his reasons. Our conscience imposed. not shocked the sentence that was summary, that, we find for the reasons indi- opinion, cated this it was error to fail to have a purpose ruling upon Walker for the of whether defendant waived his Fifth Amendment presence to remain silent and have the of his counsel and his Sixth Amendment to have presence post-polygraph counsel in- terrogation. Consequently, we remand this case for hearing. a Walker If the trial court finds that that, there was no therefore, valid waiver and suppressed, defendant’s confession should be defen- dant’s conviction is set aside and he shall have a However, trial. new if the trial court finds there waiver, a valid defendant’s conviction is af- firmed. proceedings
Remanded for consistent with this opinion.
Hood, J., concurred. (dissenting). respectfully F.D. I J. Walsh, must persuaded I dissent. am not under the facts this examining magistrate case that either the or the duty sponte had a sua *19 hearing conduct a Walker1 to determine volun- the right tariness of his to re- main silent or his Fifth or Sixth Amendment present during post-testing to have counsel interro- gation by the examiner._ (On Rehearing), v Walker NW2d 87 156 D. J. by F. Walsh, Dissent agreed voluntarily to submit
The defendant the When he went to examination. the post police exam, he was in Flint to take the state attorney. accompanied He was advised his attorney writing acknowledged was while his present that the he understood phase preceded by testing a a consisted of exam questioning phase questioning and followed silent, phase, he had a remain during testing phase anything or he said testing during questioning or after the before against phase He him at trial. was be used could questioning that and the informed that test preceded it could not be conducted and followed stop present attorney that he could his but with during answering questions or time test during questioning and consult or after before attorney. with his given to the defendant
All this advice was attorney present, and, his while his was while attorney present, acknowl- still was edged the advice and waived that he understood attorney his remain silent and have during questioning during present the test and During all the time that defen- before and after. being questioned by polygraph exam- dant attorney remained available at state iner his post. magistrate or I find no error in the failure of the sponte sua to conduct I nor do find that the trial court’s Walker suppress of the defendant’s motion to denial incriminating clearly erroneous. statements was I would affirm.