People v. Crusoe

449 N.W.2d 641, 433 Mich. 666

• Court: Michigan Supreme Court
• Decided: December 7, 1989
• Docket: 84017, (Calendar No. 9)
• Status: Published

Opinions

Boyle, J.

This Court granted leave to appeal in this case, limited to the issue whether the trial court erred in holding the defendant’s confession admissible at trial. That issue requires that we determine whether the defendant’s request for appointed counsel at arraignment invoked the right to counsel under Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), and thus prohibited subsequent police-initiated custodial interrogation on unrelated charges. We hold that the Court of Appeals erred in extending the no-access rule of Michigan v Jackson, 475 US 625; 106 S Ct 1404; 89 L Ed 2d 631 (1986), to a charge unrelated to that for which the defendant had invoked his Sixth Amendment right to counsel. Once a defendant has been formally charged, the Sixth Amendment guarantees prohibit subsequent police-initiated postarraignment interrogations on the charges. Michigan v Jackson, supra. Under the facts in this case, there was no violation of the defendant’s Sixth Amendment rights¹ because the defendant had not been formally charged with the bank robbery at the time of either interrogation.

In regard to defendant’s Fifth Amendment right to counsel, Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981), and People v Paintman, 412 Mich 518; 315 NW2d 418 (1982), cert den 456 US 995 (1982), prohibit police-initiated interrogation only after a suspect has invoked his right to counsel under Miranda during a custodial interrogation. In addition, the United States Supreme Court’s most recent Fifth Amendment confession decision, Arizona v Roberson, 486 US 675; 108 S Ct 2093; 100 L Ed 2d 704 (1988), holds that a suspect’s request for counsel during a custodial interrogation on any charge could not be circumvented by police-initiated interrogation on a new charge while the defendant remained in continuous custody.

In this case, the defendant did not invoke his right to counsel under Miranda in the context of a custodial interrogation, and thus, a subsequent police-initiated interrogation in relation to the bank robbery charge was not prohibited. Therefore, the defendant’s voluntary and knowledgeable waiver of his rights under Miranda was valid, and his statements were admissible at trial.

Further, while the United States Supreme Court refused to comment on the specific issue in Michigan v Jackson, supra, whether a defendant invokes his Sixth and Fifth Amendment rights to counsel at an arraignment, we disagree with the Court of Appeals that the rationale of Roberson for extending the right to counsel under Miranda to separate investigations while an individual remains in continuous custody supports extending a defendant’s Sixth Amendment right to counsel invoked at an arraignment to postarraignment interrogations on unrelated charges.

Accordingly, we reverse the decision of the Court of Appeals that defendant’s statement should have been suppressed and reinstate the determination of the trial court.

I

The defendant was charged with and convicted of bank robbery² after a bench trial in Ingham Circuit Court and was sentenced to serve from ten to twenty years in prison.³

At the preliminary examination, defense counsel objected to the admission of defendant’s statement incriminating himself in the robbery, which he made during an interrogation initiated by fbi agents on May 7, 1985.⁴ The defendant argued he asserted his right to remain silent when Detective Miller of the Lansing Police Department questioned him on May 6, 1985, about the same robbery.⁵

The magistrate addressed the issues regarding the effect of later questioning once a person has invoked his right to counsel and to silence⁶ and conducted a Walker7 hearing inquiring into the voluntariness of the defendant’s confession and the events occurring prior to, and during both interrogations, as well as the arraignment on unrelated charges.⁸

Detective Miller questioned the defendant regarding the bank robbery at approximately 11:30 a.m. on May 6, 1985, while the defendant was in custody on other charges.⁹ The detective testified he advised the defendant of his Miranda rights and that the defendant signed a waiver, indicating a willingness to talk. He further testified that the defendant never said he did not want to talk or wished to remain silent, and that when the defendant denied any knowledge of the bank robbery the interview ended.

On direct examination, the defendant testified that the questioning stopped because he would not give answers to Detective Miller’s questions concerning the robbery. However, on cross-examination he admitted he never said he did not want to answer questions, only that he did not wish to speak anymore after saying that he had not been involved in the bank robbery.

Later that same day, the defendant was arraigned on the charges of breaking and entering an occupied dwelling and assault with intent to commit great bodily harm, and was cited for failure to appear for trial on an outstanding bench warrant for an unrelated offense. The judge first questioned the defendant regarding the failure to appear for trial,¹⁰ and then addressed the new charges.¹¹ At the arraignment the defendant accepted the court-appointed counsel for the breaking and entering and assault charges.

The next day, after the arraignment, two fbi agents conducted another interrogation regarding the bank robbery. The defendant testified that FBI Agent Askin readvised him of his Miranda rights, and that he talked to the agents voluntarily and of his own free will.¹² Agent Askin testified that while at first the defendant denied knowledge of the robbery, when she told the defendant that fingerprints had been taken from the bank, he said he would talk, but wanted other people "to go down with him.”¹³ The defendant then dictated a statement to Agent Askin implicating himself in the robbery, which he proofread before signing.

Afterwards, the trial judge agreed to accept briefs addressing the issues whether after arraignment and request for counsel a defendant can be questioned on other charges,¹⁴ whether the indication by the interrogator that certain proofs were in existence affected the voluntariness of a defendant’s subsequent statement, and whether the advice pertaining to Miranda rights given prior to the second interview were sufficient in light of the evidence that in the first interview there was some indication from the defendant that he did not want to answer any further questions.

The judge subsequently denied the motion to suppress the defendant’s statement¹⁵ and con-eluded the preliminary examination, holding that on the basis of all the evidence, including the statement, the crime charged in the complaint had been committed, and there was probable cause to believe the defendant committed it.¹⁶

Prior to trial, defense counsel brought motions to quash and suppress the defendant’s statement.¹⁷ On September 4, 1985, Judge Bell conducted proceedings on the matter and, in his opinion denying the motion, held in part:

From a review of the preliminary examination transcript and testimony given on September 4, 198[5], before This Court it appears the evidence demonstrates the defendant at no time told Detective Miller he did not want to talk with him, that he didn’t have anything to say or that he wished to remain silent. The record more clearly indicates the defendant stated he had no knowledge of the bank robbery and wasn’t involved in it. The second interview by the fbi some twenty-seven hours later, again, contained no evidence of defendant not wanting to talk or wishing to remain silent. Thus, the record does not support defendant’s contention that he asserted his right to remain silent.

This Court is constrained to find no fifth amendment assertion took place at the first interrogation and therefore subsequent questioning was permissible. Even if it were to be assumed that the initial questioning resulted in defendant’s assertion of fifth amendment rights, the scrupulous nature with which Detective Miller terminated the interview, the twenty-seven hours [sic] interval between questioning and the second giving of Miranda warnings, by itself does not render the subsequent incriminating testimony involuntary.

[W]here the defendant was charged and arraigned on unrelated charges and apparently was to receive court appointed counsel on these charges, recent caselaw would suggest he could not be interrogated as to these unrelated charges without presence of counsel, unless he initiated the conversation with the police. People v Bladel (After Remand), 421 Mich 39 [365 NW2d 56] (1984).

The question presented, then, is whether the defendant’s assertion of his sixth amendment right to counsel on unrelated matters vitiates his waiver of fifth amendment right to remain silent on this charge. This Court does not believe that it does.

The facts here suggest that defendants [sic] request for Court appointed counsel, or the Courts [sic] initiation of the request, was made as a routine arraignment manner [sic]. It is nowhere suggested that at the arraignment the defendant was interrogated or that an atmosphere of coercion existed. In fact quite the contrary, the evidence suggests that the sixth amendment right was conferred upon him as it pertained to judicial proceedings held in the unrelated charges.

Further, it appears that a clear and unambiguous waiver of Miranda rights preceded the second interview by Special Agent Askin. Accordingly, This Court determines that the assertion of sixth amendment right to counsel did not render the subsequent waiver of counsel on unrelated matters invalid.[¹⁸]

At trial, the defendant admitted he robbed the bank and that he told the fbi agent he understood his rights during the interrogation.¹⁹ On the basis of the teller’s testimony, the trial judge found beyond a reasonable doubt that a robbery occurred and that there appeared to be no contest as to the truthfulness of the defendant’s confession which the court previously had found constitutionally sound:

This Court is satisfied that the standard for determination of voluntariness is made based upon [sic] a preponderance of the evidence. It appears that this Court has issued an opinion and order following considerably well-drafted briefs, and well-prepared reasoning by both parties on 25th of September of 1985. . . . [T]his Court concluded that on the three issues that the Court had before it, that in fact, constitutionally, there was no violation of the Fifth and Sixth Amendment rights to counsel, both as it pertained to the alleged existence of the counsel on the date that the statement was made, and this was never shown to be in existence. There was shown to have been a request or demand either made by the court or by the defendant for court-appointed counsel, and it appears further that the issue of waiver of rights to counsel as it pertains to this matter is not before this Court, because this Court has concluded previously, and it does so conclude today, that there was a requisite giving of the so-called Miranda rights in their full and complete context by Agent Askin.

This Court has to conclude, based upon [sic] the incorporation of its earlier rulings on September the 25th, together with the findings of fact that it has just now made, that this statement was in fact a free, voluntary statement made by the Defendant after a waiver of his Miranda rights on the particular day of the — I believe it’s the 7th of May of 1985.[²⁰]

On appeal,²¹ the Court of Appeals reversed the defendant’s conviction on the basis of its belief that the trial court erred in refusing to suppress the written confession made by the defendant to the fbi agents:

When defendant requested counsel at his arraignment on the charges of breaking and entering and felonious assault, we presume that he was invoking both his Sixth Amendment right to be represented at every critical stage of the prosecution of those two charges as well as his Fifth Amendment right to be represented during interrogation on the breaking and entering and assault charges or on any other crime for which he may have been a suspect. Thus, the fbi’s interrogation of defendant after the arraignment violated defendant’s Fifth Amendment right to be represented by counsel during custodial interrogation. [170 Mich App 403, 408; 427 NW2d 634 (1988).]

The Court of Appeals found the reasoning employed by the United States Court of Appeals for the Seventh Circuit in United States ex rel Espinoza v Fairman, 813 F2d 117 (CA 7, 1987), persuasive and adopted the analysis of that court:

[T]he Seventh Circuit concluded that an individual who requests an attorney at arraignment invokes both Fifth and Sixth Amendment protections since that individual is essentially requesting an intermediary in his or her dealings with the government. Citing Michigan v Jackson, 475 US 625; 106 S Ct 1404; 89 L Ed 2d 631 (1986), the Court noted that a request for counsel must be broadly rather than narrowly interpreted and that an individual unskilled in the law cannot generally be expected to articulate the particular authority under which his or her constitutional right to counsel is being invoked. The Seventh Circuit held that the authorities should presume that a request for counsel at arraignment invokes both Fifth and Sixth Amendment protections. [Crusoe, supra, p 407.]

Recognizing that its opinion conflicted with the opinion in People v Buckles, 155 Mich App 1; 399 NW2d 421 (1986),²² the Court of Appeals certified this case as a conflict. Crusoe, supra, p 409.²³

This Court granted leave to appeal, limited to the issue whether the trial court erred in holding that the defendant’s confession was admissible because the defendant had waived his rights under Miranda v Arizona, supra.24

II

As a rule, the admissibility of an accused’s confession made during a police-initiated custodial interrogation depends on the results of two distinct inquiries. First, courts must determine whether the accused actually invoked his right to counsel.²⁵ Second, where the accused has invoked his right to counsel, his later statement is admissible only upon a finding that the defendant initiated further discussions with the police and knowingly and intelligently waived the right he had invoked. Smith v Illinois, 469 US 91, 95; 105 S Ct 490; 83 L Ed 2d 488 (1984).

The Court of Appeals held that the defendant effectively invoked his Fifth Amendment right to counsel²⁶ with respect to the bank robbery charge when he availed himself of his Sixth Amendment²⁷ right to counsel at his arraignment on different and unrelated charges. Post, p 697. This then, according to the panel, invoked the rule of Edwards v Arizona and People v Paintman that a criminal suspect undergoing custodial interrogation who has expressed a desire to deal with police only through counsel is not subject to further interrogation by the authorities until counsel has been made available, unless the suspect initiates further communication, exchanges, or conversation with the police. Edwards, supra, pp 484-485.²⁸

Accordingly, because Crusoe’s subsequent statements concerning the bank robbery were made during a police-initiated questioning following his request for counsel at the arraignment on other charges, the Court of Appeals essentially concluded that Crusoe’s Fifth Amendment right against compelled self-incrimination was violated, notwithstanding the defendant’s apparently voluntary and knowledgeable waiver of this right.²⁹

This case requires the resolution of two distinct issues: (1) whether a defendant’s request for appointment of counsel at an arraignment invokes both Sixth and Fifth Amendment rights to counsel and, if not (2) whether the Court should extend Fifth Amendment protections to prohibit subsequent police-initiated questioning following a defendant’s request for court-appointed counsel at an arraignment on unrelated charges while a suspect remains in custody.³⁰

III

In concluding that when the defendant requested counsel at his arraignment he invoked his Fifth Amendment right to be represented during interrogation on those charges or any other crime for which he may have been a suspect, Crusoe, supra, p 408, the Court of Appeals adopted the reasoning employed by the United States Court of Appeals for the Seventh Circuit in Espinoza v Fairman, supra. The Espinoza court, relying on Michigan v Jackson, supra, held that individuals who assert the right to counsel at an arraignment invoke both their Sixth and Fifth Amendment rights to counsel. However, in my opinion, the Espinoza court’s reliance on Jackson is misplaced.

In Jackson, the Court held only that the Sixth Amendment right to assistance of counsel guarantees that right at postarraignment interrogations on those charges because such interrogations represent "critical stages” of adversary judicial proceedings to which the Sixth Amendment applies.³¹ Id., pp 629-630. The Court recognized a defendant’s invocation of the Sixth Amendment right to counsel is as protected as is the invocation of the right to counsel under Miranda at a custodial interrogation:

[A]fter a formal accusation has been made — and a person who had previously been just a "suspect” has become an "accused” within the meaning of the Sixth Amendment — the constitutional right to the assistance of counsel is of such importance that the police may no longer employ techniques for eliciting information from an uncounseled defendant that might have been entirely proper at an earlier stage of their investigation. [Michigan v Jackson, supra, p 632.]

The Court extended the rule of Edwards v Arizona, finding that "if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.”³² Id., p 636.

This Court, from which Jackson was appealed, held that the defendant’s request for counsel at his arraignment implicated only his Sixth Amendment right to counsel, Bladel, supra, p 52, relying on the holding in Rhode Island v Innis, 446 US 291, 298; 100 S Ct 1682; 64 L Ed 2d 297 (1980), that the Fifth Amendment right to counsel attaches only when an accused is in custody and is subjected to interrogation. Accordingly, we concluded that the arraignment process did not implicate a defendant’s Fifth Amendment rights, because it involves no compulsion of the accused to give evidence having testimonial significance. Bladel, supra, p 52.

We recognize that the United States Supreme Court did not pass judgment on the validity of this Court’s Fifth Amendment analysis in Jackson.33 Nevertheless, the Court did not hold that the invocation of the Sixth Amendment right to counsel at an arraignment also invokes a defendant’s Fifth Amendment rights. Espinoza, supra, pp 122-123. The Espinoza court’s conclusion that "[T]he Jackson Court specifically observed that an individual who has been arraigned has both a Sixth Amendment and a Fifth Amendment right to counsel at a 'post-arraignment custodial interrogation,’ ” id., p 123, citing Jackson, supra, was based on this language from Jackson:

The question is not whether respondents had a right to counsel at their postarraignment, custodial interrogations. The existence of that right is clear. It has two sources. The Fifth Amendment protection against compelled self-incrimination provides the right to counsel at custodial interrogations. Edwards, 451 US at 482; Miranda v Arizona, 384 US 436, 470 (1966). The Sixth Amendment guarantee of the assistance of counsel also provides the right to counsel at postarraignment interrogations. The arraignment signals "the initiation of adversary judicial proceedings” and thus the attachment of the Sixth Amendment, United States v Gouveia, 467 US 180, 187, 188 [104 S Ct 2292; 81 L Ed 2d 146] (1984); thereafter, government efforts to elicit information from the accused, including interrogation, represent "critical stages” at which the Sixth Amendment applies. [Id., pp 629-630.]

We disagree with the conclusion reached by the Espinoza court upon which the Court of Appeals relied that from Jackson, which bars police-initiated interrogation after indictment in the absence of counsel, it follows that once an accused’s Sixth Amendment right to counsel attaches his Fifth Amendment rights become unwaivable in the context of a separate investigation. In Jackson, the Court rejected the state’s claim that a defendant’s request for counsel at arraignment should be limited to the right to assistance at court proceedings and should not extend to subsequent custodial interrogations on the charges; however, the Court did not hold that the request indicated "a desire for legal assistance at subsequent custodial interrogations” on other unrelated charges, as inferred by the dissent.³⁴ Post, p 704.

This conclusion ignores the fact that the constitutional basis upon which the right to counsel is invoked determines both when the right attaches and what constitutes a valid waiver of the right.³⁵ Project, Eighteenth annual review of criminal procedure, 77 Geo L J 489, 647 (1989). In Maine v Moulton, 474 US 159, 180; 106 S Ct 477; 88 L Ed 2d 481 (1985), the Supreme Court distinguished the Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination:

[T]o exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public’s interest in the investigation of criminal activities. Consequently, incriminating statements pertaining to pending charges are inadmissible at the trial of those charges, notwithstanding the fact that the police were also investigating other crimes, if, in obtaining this evidence, the State violated the Sixth Amendment by knowingly circumventing the accused’s right to the assistance of counsel.

Contrary to the dissent’s conclusion, the Supreme Court has never rejected Moulton as authority in the context of the Fifth Amendment.³⁶ In Roberson, the Court simply rejected the petitioner’s argument that the rationale employed in Moulton³⁷ could be used to exclude " 'statements about different offenses, developed at different times, by different investigators, in the course of two wholly independent investigations,’ ” finding the defendant’s statement in Roberson that " 'he wanted a lawyer before answering any questions’ ” invoked his right to counsel under Miranda and prohibited subsequent police-initiated interrogations while he remained in custody.³⁸ Roberson, supra, p 685.

At issue in the case before this Court is whether the defendant’s waiver of his rights under Miranda was valid and whether his statements are admissible at trial. We find no authority for the adoption of a rule that a defendant’s request for court-appointed counsel at an arraignment invalidates a waiver of a defendant’s right to counsel per se under Miranda during a subsequent police-initiated interrogation concerning a different and unrelated offense.³⁹ United States v Roberts, 869 F2d 70, 74 (CA 2, 1989).

Accordingly, we find the defendant’s subsequent waiver of his Miranda rights during the police-initiated interrogation concerning the bank robbery offense was not rendered invalid under the rule of Edwards v Arizona, and, in light of the inapplicability of Edwards and Paintman, supra, the defendant’s statements implicating himself in the robbery are admissible at trial.

IV

The dissent finds that Crusoe requires us to reevaluate the analysis in Bladel, noting that "Bladel’s Fifth Amendment analysis is inconsistent with other portions of that opinion expressly endorsed by the Supreme Court in Jackson, and with other reasoning in the Jackson and Roberson decisions,” concluding that the holding of Arizona v Roberson,40 that police-initiated interrogation of a suspect is prohibited without providing counsel where the suspect has previously cut off interrogation, is applicable to this situation where "the suspect’s request for counsel occurs not during a preceding custodial interrogation, but during a preceding arraignment on another charge.” Post, p 701.

The dissent’s rationale for extending the holdings of Edwards and Roberson is that

when defendant requested counsel at his arraignment, he felt that he was not "sufficiently capable of dealing with his adversaries singlehandedly” [and] [h]is request expressed a desire for a lawyer’s help, not just with formal legal proceedings, but with all subsequent adversarial confrontations, including custodial interrogation. His request was as effective an invocation of his Fifth Amendment right to counsel as a request to a police officer during interrogation would have been. [Post, p 706.]

However, this conclusion does not take into consideration that the two prerequisites that trigger Miranda procedural safeguards are custody and interrogation,⁴¹ and, assuming that the suspect is in a sufficiently coercive atmosphere to even warrant Miranda protections,⁴² that there must be an indication by the suspect that he wishes to consult an attorney before speaking⁴³ in order to bar any further police-initiated questioning.⁴⁴ The request for counsel reflects the subjective belief of the defendant that he is uncomfortable with the pressures of custodial interrogation, and is "precisely the state of mind that Edwards presumes to persist unless the suspect himself initiates further conversation about the investigation . . . .” Roberson, supra, p 684.

In Roberson, the Supreme Court found that it is reasonable to assume that when an accused undergoing custodial interrogation about one charge asserts he wants counsel before making a statement, he wants counsel before making statements concerning any charges while he remains in continuous custody.⁴⁵ However, a request for counsel at an arraignment does not reflect a similar subjective belief on the part of the defendant, which is the significant factor in both Edwards and Roberson.

Therefore, absent the Edwards concern "with police conduct that might badger an accused into abandoning a previously invoked right,” or evidence that the defendant’s arrest on the unrelated charges was a sham intended to make him available for questioning on the bank robbery charge, we do not agree that Roberson supports the argument that this Court should presume that a request for counsel invoked at an arraignment reflects the desire for legal assistance during custodial interrogation on different and unrelated charges.

The dissent’s interpretation would hold that once an accused has asserted his Sixth Amendment right to counsel, Edwards acts as a bar to any valid waiver of the right to counsel under Miranda in an investigation of a wholly new incident, thus making it "impossible for a suspect to waive his right to counsel and for questioning on a new offense to proceed if the accused had asserted his right to counsel at any earlier point in his dealings with the authorities.” Roberts, supra, p 74. While this result has the superficial appeal of a bright-line rule, it fails to take into account distinctions the Court itself has but recently articulated, as well as the Court’s long-established view that society has a legitimate interest in obtaining a defendant’s statement and in investigating criminal activities. Moulton, supra, p 180.

The United States Supreme Court has not yet interpreted the Sixth Amendment of the federal constitution as requiring that after an arraignment police-initiated interrogation on unrelated charges is prohibited, or that a voluntary statement obtained during a custodial interrogation on unrelated charges after appropriate Miranda warnings must be suppressed.⁴⁶ While the Court’s Fifth and Sixth Amendment jurisprudence makes prediction perilous, lacking further guidance from the Court, we would reject the dissent’s conclusion that the Edwards rule has been so broadened that it places a blanket exclusion on all postindictment interrogation about unrelated, as yet uncharged offenses.⁴⁷_

Under the facts of the case before this Court, we agree with the conclusion reached by the trial court that this defendant’s request for appointed counsel was made as a routine arraignment matter.⁴⁸ Properly initiated interrogation on entirely new charges does not intrude into an accused’s previously invoked right at an arraignment on unrelated charges, and we see no constitutional objective that would be served by such an extension of Edwards or the suppression of the defendant’s statement in this case.⁴⁹ The trial court correctly found that there was a voluntary waiver of the defendant’s rights, and that the defendant’s assertion of the right to counsel on unrelated matters did not vitiate his waiver of his Fifth Amendment right to remain silent.⁵⁰_

Accordingly, the defendant’s subsequent waiver of his Miranda rights with regard to the unrelated crime should not be deemed invalid merely because it came in response to police-initiated questioning.

CONCLUSION

In sum, we find that the defendant’s request for counsel at his arraignment invoked his Sixth Amendment right to counsel which is limited to the specific crimes for which the state has initiated adversarial proceedings. Further, the defendant’s request did not invoke his right to counsel under Miranda prior to the police-initiated interrogation concerning the bank robbery. Thus, the defendant’s waiver of his rights at the interrogation was valid and his statement was admissible at trial.

Therefore, we reverse the decision of the Court of Appeals and reinstate the decision of the trial court that the defendant’s confession was admissible at trial.

Riley, C.J., and Brickley and Griffin, JJ., concurred with Boyle, J.

1 See Kirby v Illinois, 406 US 682, 688-689; 92 S Ct 1877; 32 L Ed 2d 411 (1972). The Sixth Amendment right to counsel arises and attaches automatically after the initiation of adversarial judicial criminal proceedings, limited to the specific crimes for which the state has begun prosecution.

2 MCL 750.531; MSA 28.799.

3 The judgment was entered on October 8, 1985, and the defendant was sentenced on November 6,1985.

4 The agents interviewed the defendant while he was in the custody of the Lansing police on charges of assault and breaking and entering, which were unrelated to the bank robbery.

5 Defense counsel objected to the admission of the statement on two grounds: (1) there had not been a sufficient showing of a link between his client to the crime prior to the time that the confession was admitted, and (2) the failure of the court to address the issue whether or not his client had been spoken to earlier, the effect of repeated questioning after a defendant has asserted the right to remain silent, and the claim that the fbi agent used trickery or deceit in questioning and attempting to extract a confession from the defendant.

6 The judge stated:

[T]he second part of the objection, however, raises some very, very complicated issues, probably one of the most complicated areas of the law in existence, and that is dealing with the question of once a person has invoked his right to counsel and to silence, the effect of later questioning.

We’ve got a recent Supreme Court of Michigan case on the subject of questioning after arraignment that could be applicable here. We’ve got a lengthy Michigan Supreme Court opinion on voluntariness of statements and confessions that could be applicable here.

So I don’t believe that I can, at this point, without examining those authorities — not only Michigan law, but Edwards v Arizona and the other cases that dealt with — I think there’s a case out of Detroit that dealt — that went to the Supreme Court of the United States and dealt with questioning after someone invoked the right to silence. There was questioning in that case and it was found to be okay. But invoking the right to an attorney as well as silence leads to a little different body of law.

So before admitting the statement, we’re going to have to examine those authorities and make a determination if we can based on these facts. We may need some additional facts before making a determination.

During cross-examination, defense counsel did question the fbi agent regarding whether she was aware that the defendant had been arraigned on other charges earlier in the day, and if counsel had been appointed at the time of the second interrogation. However, the defendant did not raise the issue whether the defendant’s request for an attorney at an arraignment on unrelated charges prior to the interrogation by the fbi agents should result in the suppression of his statement.

7 See People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).

8 The magistrate questioned the detective who conducted the first interview with the defendant, and the fbi agent who interrogated the defendant the following day.

9 The detective testified that he was sure the defendant had not been to court prior to the interview because the warrant had not been signed with regard to those charges.

10 The first matter the court addressed was the bench warrant issued by the court because the defendant failed to appear for a jury trial:

The Court: That’s fine. Okay. Well, Mr. Crusoe, it’s my opinion or my decision that you were sent a notice to the proper address.

Defendant: What address is that, sir?

The Court: 1127 Hamilton.

Defendant: 1127 — all right, then. I — did receive a notice. All right, then. But, I told my lawyer that I’m not pleading guilty to that.

The Court: Nobody asked you to plead guilty. You were supposed to be here for trial.

Defendant: When was it set?

The Court: April . . .

Defendant: I — I still — I still haven’t received it.

The Court: Well, we sent it.

Defendant: I mean, I haven’t received it. I mean, it might be my fault, but I haven’t received it.

The Court: That’s fine. You’re assessed costs of $100 or 15 days. Your new bond is $2,000 — ten percent. Would you like to apply for a lawyer again? I’ll note that you want Court attorney. Is that correct?

Defendant: Your Honor, I — I still don’t get to understand what. . .

The Court: Here’s the understanding: Our clerks sent. . .

Defendant: I mean, please. Please.

The Court: . . . you a notice of trial to the address you requested it to be sent.

Defendant: To 1127 Hamilton.

The Court: You didn’t come.

Defendant: I . . .

The Court: You are in contempt for not coming because you should open your mail. It didn’t come back here. We sent it to where you told us to send it.

Defendant: Right.

The Court: And your lawyer was here. He came here to represent you at a trial in my court. You didn’t come. It was assault and battery which I consider a serious matter.

Defendant: It is.

The Court: That’s right. And you’re assessed $100 costs for the witnesses who did come. The other bond that you posted in this matter has been forfeited and you’re to post a new bond that I’ve ordered here.

Defendant: Your Honor, honestly . . .

The Court: Would you like to apply for a lawyer? You also have another, more serious matter, Mr. Crusoe.

Defendant: I know, your Honor.

The Court: You’re gonna [sic] be with us in any event. So what do you want to do?

Defendant: Your Honor, I’m trying to get that straightened out. I’m trying to explain to you I did not have no [sic] knowledge of that.

11 The judge told the defendant he believed that the defendant did have knowledge of his trial date and continued:

The Court: Okay. The next matter, Mr. Crusoe is 85-723-FY. You are charged as follows: that at 1426 Knollwood, in count one; in count two at 1412 Knollwood, Lansing, that you did break and enter an occupied dwelling . . .

Defendant: Judge, may I say something . . .

The Court: . . . house located at 1426 Knollwood, Lansing, Michigan with the intent to commit the felony crime of assault with intent to do great bodily harm less than murder.

Defendant: That is my address.

The Court: The maximum penalty is 15 years in prison. Well, that’s fine. That’s why we have preliminary hearings. The maximum penalty on that charge is 15 years in prison, Mr. Crusoe. You are charged in count two that you did assault Marily Gadlin with intent to do great bodily harm less than the crime of murder, contrary to law. The maximum for that is ten years and a fine of up to $5,000. Now, you are entitled, sir, to a preliminary examination that will be held within 12 days of today’s date. Would you like a preliminary hearing?

Defendant: Yes, I would, your Honor.

The Court: All right. You are entitled to a lawyer. If you cannot afford counsel, you may apply for a lawyer through our court at public expense. Would you like to apply for a lawyer?

Defendant: Yes, I would. Your Honor, can I ask you a couple questions?

The Court: What is your question?

Defendant: What — what was that — breaking and entering and a & b.

The Court: That’s a thing to ask your attorney. I cannot give you legal advice, sir.

Defendant: That’s not legal. I’m just asking a question. What makes thes [sic] — I live there at that address. I been living there for eight months.

The Court: Then you should confer with your counsel and advise them [sic] of that.

The Court: Yeah. If you keep talking, it will go up.

Defendant: Your Honor, I still can’t understand why in the world it’s like this.

The Court: I suggest that you wait and talk to your counsel.

12 FBI Agent Askin testified that she advised the defendant of his Miranda rights, reading aloud from the standard form, and that the defendant read it as they went along. After reading the waiver section and indicating he understood his rights, the defendant signed the waiver.

13 He said he walked to the bank wearing his disguise and committed the robbery, that he wore a black jacket and mask, and used a taped-up broom handle to simulate a weapon.

14 The defendant argued that after he had requested counsel at the arraignment on unrelated charges, the subsequent interrogation by the agents on the following day, constituted a violation of the defendant’s Sixth Amendment right to counsel.

15 In his opinion issued on June 11, 1985, Judge Wood, in response to the question whether obtaining a confession without counsel present after one had been requested on an unrelated charge violates a defendant’s Sixth Amendment rights, concluded:

Sixth Amendment rights are not interfered with when the interrogation concerns factually unrelated crimes.

Under the total circumstances, including the somewhat contradictory testimony of Defendant, this Court makes the factual finding that Defendant did not invoke the right to remain silent when being questioned by Detective Miller or at any time before giving the statement to the fbi.

[This] Court finds no violation of Defendant’s Miranda right to refuse to answer because it was never invoked.

Defendant contends that the statement should not be admitted as being the product of trickery or deceit. . . . The rule is that deception or trickery do not violate due process or render a confession involuntary provided the means are not calculated to procure an untrue statement. . . . The totality of the circumstances, including the Defendant’s own testimony that the statement was voluntary and of his own free will demonstrate that the confession was voluntary. The statement should not be excluded from evidence for the reason advanced.

16 The preliminary examination was completed on June 19, 1985, and the defendant was bound over to the circuit court on the bank robbery charge to appear on June 26, 1985.

17 Defense counsel’s motions to quash and suppress pertained to the same factual context, but because of the bindover, he premised one on the abuse of discretion, and the second one simply on the confession itself.

The defendant argued that without the use of the statement, obtained in violation of his Fifth Amendment right to remain silent, and in violation of his Sixth Amendment right to counsel, the prosecutor had failed to establish by sufficient evidence that there was probable cause to believe that defendant committed the crime in question.

18 The court also noted:

Defendant’s allegations of trickery and deceit used by FBI Special Agent Askins [sic] to coerce a confession from the defendant deserves very close review. ... In this matter the questioning appears to not have been lengthy, the agents appear to have conducted themselves with civility, the defendant fully understood the implications both of his waiver of rights and the incriminating conclusions potential from the physical evidence.

Thus, despite the stated intention of making it appear the physical evidence alone would implicate guilt, This Court cannot conclude the agents’ words were sufficient to overbear the defendant’s free will and render the statement involuntary.

19 The defendant also stated the breaking and entering and assault charges were dismissed at the preliminary hearing on the bank robbery charge.

20 The trial court also found that this case could be distinguished from People v Bladel (After Remand), 421 Mich 39; 365 NW2d 56 (1984), in which this Court reviewed the Sixth Amendment right to counsel in the context of interrogation. In Bladel, the defendant was questioned and denied involvement in murders which had taken place in Jackson. He was formally charged with the murders and arraigned, and at arraignment, he requested counsel. The next morning he was readvised of his rights, questioned, and confessed to the murders without having had an opportunity to talk to counsel.

The Court found that, in this case, the authorities could question the defendant without counsel present only if the defendant initiated the conversation, indicated a willingness to discuss the case, was carefully advised of, and then waived, both his Fifth and Sixth Amendment rights.

The United States Supreme Court affirmed the holding of Bladel and People v Jackson, the consolidated case, that confessions obtained during custodial interrogation after an individual requests counsel at arraignment on the same charges, but before the individual is able to consult with counsel, are inadmissible at trial as a violation of the Sixth Amendment right to counsel.

21 On appeal, the defendant argued that his confession must be suppressed where the FBI-initiated interrogation occurred after an arraignment and request for court-appointed counsel, even when the interrogation concerned an unrelated charge, and less than twenty-four hours after the defendant exercised his Fifth Amendment privilege against compulsory self-incrimination during an interrogation concerning the same offense.

However, the panel of the Court of Appeals did not address the issue, accepting the trial court’s finding that the defendant did not invoke the right to remain silent during the first interrogation. We do not reach this issue and accept the trial court’s findings regarding the factual issue whether the defendant invoked the right to silence, and the issue whether his statements were voluntary, which- was determined at a Walker hearing.

22 The Buckles panel distinguished between the Fifth and Sixth Amendment rights to counsel and concluded that the defendant had invoked only the Sixth Amendment right to counsel at his arraignment, and that the right to counsel guaranteed under the Sixth Amendment does not attach until the commencement of an adversarial judicial proceeding. Crusoe, supra, p 406.

23 See Administrative Order No. 1984-2, 418 Mich lxxxii; Mich Ct R A 1-23.

24 431 Mich 906 (1988).

25 Edwards, supra, pp 484-485. However, while the invocation of the right to counsel under Miranda prohibits subsequent police-initiated interrogation, when a defendant invokes the right during interrogation that he wishes to remain silent, the police must cease all questioning at that interview but can then initiate a subsequent interrogation if law enforcement officials "scrupulously” honor the defendant’s assertion of the right to remain silent. Michigan v Mosley, 423 US 96, 103, n 9; 96 S Ct 321; 46 L Ed 2d 313 (1975).

26 The right to counsel under Miranda v Arizona, supra, which implements the Fifth Amendment guarantees that "[n]o person . . . shall be compelled in any Criminal Case to be a witness against himself” (US Const, Am V; Const 1963, art 1, § 17), stems from the United States Supreme Court’s concern about the inherently coercive nature of custodial interrogation:

[W]hen an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. . . . [The defendant] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. [Id., pp 478-479.]

27 The Sixth Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of Counsel for his defence. [US Const, Am VI; 1963 Const, art 1, § 20.]

The Sixth Amendment right to counsel was held to apply to the states through the Fourteenth Amendment in Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963).

28 Pursuant to Edwards, a valid waiver of that right cannot be established by showing that the defendant responded to subsequent police-initiated questioning even when the defendant has been re-advised of his rights. Id.

29 See State v Stewart, 53 Wash App 150; 765 P2d 1320 (1989); Cervi v Kemp, 855 F2d 702 (CA 11, 1988); State v Preston, 150 Vt 511; 555 A2d 360 (1988); People v Hicks, 179 Ill App 3d 468; 128 Ill Dec 448; 534 NE2d 630 (1989); Alston v State, 554 A2d 304 (Del, 1989).

30 The dissenting opinion states that "[t]he precise question presented is whether defendant’s request for appointed counsel at arraignment was an invocation of his right to the assistance of counsel during custodial interrogation.” Post, p 698. We disagree. The precise question is whether the defendant’s request invoked the right to counsel during custodial interrogation on unrelated charges.

31 The Sixth Amendment prohibits law enforcement officials from using incriminating statements "deliberately elicited” from an accused without the presence or waiver of counsel after the initiation of adversarial proceedings. Massiah v United States, 377 US 201, 205-206; 84 S Ct 1199; 12 L Ed 2d 246 (1964).

32 The Court found that it made little sense to afford relief from further interrogation "to a defendant who asks a police officer for an attorney” and not to "a defendant who makes an identical request to a judge.” Project, Seventeenth annual review of criminal procedure, 76 Geo L J 521, 925 (1988), citing Jackson, supra, pp 633-634, n 7.

33 The Jackson majority cautioned that it was expressing no view on this Court’s conclusion that the request for appointment of counsel at arraignment implicated only Sixth Amendment rights and not Fifth Amendment rights because the request was not made during custodial interrogation. Jackson, supra, p 630, n 4, citing Bladel, supra, p 52.

34 Espinoza fails to recognize the fact that Jackson only refused to limit the scope of the Sixth Amendment right to counsel, recognizing that once a defendant’s right to counsel has attached on a charge, he should have the assistance of counsel at all stages, including custodial interrogation, and did not intend to extend the scope of the right to counsel under Miranda to arraignment proceedings. Thus, Espinoza incorrectly concluded that

[b]ecause an individual who does not understand his or her rights cannot validly waive them, see Moran v Burbine [475 US 412, 422; 106 S Ct 1135; 89 L Ed 2d 410 (1986)], we are required to presume that an individual who requests counsel at his or her arraignment is asserting both a Sixth Amendment and a Fifth Amendment right even if the individual does not "articulate exactly why or for what purposes he is seeking counsel,” Jackson, [475 US] at [633-634] n 7 (quoting [People] v Jackson, 421 Mich at 63-64; 365 NW2d at 67). [Id., p 123.]

35 For example, "[i]ncriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are . . . admissible at a trial of those offenses.” Maine v Moulton, 474 US 159, 180, n 16; 106 S Ct 477; 88 L Ed 2d 481 (1985).

On the other hand, the right to counsel under Miranda, once invoked, extends to any subsequent custodial questioning, regardless of whether such questioning pertains to matters wholly unrelated to the crime with regard to which the right was invoked. Roberson, supra.

36 The dissent concludes the holding in Moulton inapplicable, and thus not controlling in the present case:

First, Moulton was a Sixth Amendment case and did not consider directly the Fifth Amendment issue presented here. See Roberson, supra, pp 684-685 (rejecting Moulton as authority in the Fifth Amendment context). Second, the Court in Moulton was discussing suppression of statements "simply because other charges were pending at the time,” id., p 180. It did not address suppression due to a prior, and, at the time of the interrogation, still unfulfilled, request for counsel made at arraignment. Finally, the Court’s analysis in the later cases of Jackson and Roberson has replaced the Moulton dicta on the issue before us. [Post, pp 706-707.]

The dissent’s discussion of Moulton is not supported by case law, and, in addition, there is nothing in the record which indicates that the defendant’s request for counsel made at his arraignment was not honored.

37 Further, the Court’s analysis in the later cases of Jackson and Roberson has not replaced the Moulton dicta on the issue before us today. Post, p 707. The Court reaffirmed that dicta in Moran v Burbine, 475 US 412, 431; 106 S Ct 1135; 89 L Ed 2d 410 (1986):

[L]ooking to the initiation of adversary judicial proceedings, far from being mere formalism, is fundamental to the proper application of the Sixth Amendment right to counsel. [In Moulton] we considered the constitutional implications of a surreptitious investigation that yielded evidence pertaining to two crimes. For one, the defendant had been indicted; for the other, he had not. Concerning the former, the Court reaffirmed that after the first charging proceeding the government may not deliberately elicit incriminating statements from an accused out of the presence of counsel. . . . The Court made clear, however, that the evidence concerning the crime for which the defendant had not been indicted — evidence obtained in precisely the same manner from the identical suspect — would be admissible at a trial limited to those charges.

38 Similarly the dissent ignores the difference between the Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination:

The former arises from the fact that the suspect has been formally charged with a particular crime and thus is facing a State apparatus that has been geared up to prosecute him. The latter is protected by the prophylaxis of having an attorney present to counteract the inherent pressures of custodial interrogation, which arise from the fact of such interrogation and exist regardless of the number of crimes under investigation or whether those crimes have resulted in formal charges. [Roberson, supra.]

39 As noted by the dissent and the lower courts, the defendant’s Sixth Amendment rights had not yet attached with respect to the robbery that had not been charged at the time of the questioning. Thus, the Fifth Amendment, rather than the Sixth Amendment, was at issue. Post, p 698, n 1.

40 In Roberson, the defendant was arrested at the scene of a just-completed burglary. The arresting officer advised the defendant of his rights, and the defendant indicated at that time that he wished to deal with the police only through counsel. Three days later while the defendant was still in custody, a different police officer questioned the defendant about a different burglary which had occurred the day before the defendant had been arrested. After advising the defendant of his rights, the officer obtained an incriminating statement. Id., p 678.

41 Outside the context of custodial interrogations there is no right to counsel under Miranda, because "Miranda warnings are only required when police engage in interrogation or its functional equivalent,” which takes place in a custodial setting. Berger, Compromise and continuity: Miranda waivers, confession admissibility, and the retention of interrogation protections, 49 U Pitt L R 1007, 1009, n 9 (1988).

42 The United States Supreme Court held that Miranda warnings are not required even when the defendant is in jail awaiting trial on other charges and is questioned by an undercover person. Moulton, supra, p 180.

However, in People v Perkins, 176 Ill App 3d 443; 531 NE2d 141 (1988), the court held that Miranda protections applied to informal interrogation of the defendant by an undercover officer while the defendant was in jail awaiting trial for an unrelated charge. This holding is contrary to Moulton where the Court found, in a similar situation, that the questioning did not amount to "custodial interrogation,” and thus the Fifth Amendment was not applicable. The United States Supreme Court granted certiorari to address the issue whether questioning by an undisclosed undercover agent constituted custodial interrogation per se as contemplated by Miranda because the suspect was incarcerated.

43 While the courts recognize that the Miranda right to counsel can be asserted in numerous ways, the right must be conveyed to someone, usually an agent of the state who would otherwise seek to question the suspect in an adversarial or investigative process, and, typically, a defendant asserts that right to the interrogating police officer. Edwards, supra, p 479.

44 Edwards, supra, pp 484-485. The police may question the defendant only if he initiates the conversation after invoking Miranda rights. However, that initiation of conversation by an accused does not constitute a waiver per se of the right to counsel, and the prosecution still must prove that the defendant waived the right to counsel. Id.

45 The United States Supreme Court did not establish a new "rule” of law in Roberson, contrary to the conclusion reached by the United States Court of Appeals for the Fourth Circuit in Butler v Aiken, 864 F2d 24 (CA 4, 1988).

The Fourth Circuit, relying on the holding in Colorado v Spring, 479 US 564; 107 S Ct 851; 93 L Ed 2d 954 (1987) that a waiver of the Fifth Amendment right at the beginning of an interrogation remains valid even if police questioning moves without warning from the crime for which the defendant was arrested to an entirely different offense, initially determined there was "no compelling reason to assume that the invocation of a right to counsel on one offense automatically applies to later charges brought to the attention of the accused.” Butler v Aiken, 846 F2d 255, 259 (CA 4, 1988). However, that court did not address the circumstances in which the defendant invoked the right to counsel.

On rehearing, the court found that the appearance of counsel with the defendant (who had an iq of sixty-nine and functioned at the mental level of an eight- or nine-year-old) at a bond hearing on an assault charge for which he was first arrested conclusively demonstrated an invocation of the his Fifth Amendment right. Thus, the subsequent interrogation concerning the murder conducted at 12:15 a.m. shortly after the hearing while the defendant remained in continuous custody was contrary to Edwards as modified in Roberson. 864 F2d 25. The court concluded, however, that the rule in Roberson did not apply retroactively and affirmed the prior decision.

The United States Supreme Court recently granted the plaintiff’s petition for certiorari to address the issue whether the Court of Appeals majority misread Arizona v Roberson as creating a "new” rule of constitutional law. Butler v Aiken, cert gtd sub nom Butler v McKellar, 490 US —; 109 S Ct 1952; 104 L Ed 2d 422 (1989).

46 In this case the defendant does not argue, nor is it anywhere suggested, that at the arraignment the defendant was interrogated or that an atmosphere of coercion existed. Further, it is a distinct issue, not before us in this case, whether a failure to give Miranda warnings at arraignment will invalidate a subsequent voluntary waiver during custodial interrogation.

47 Recently, the United States Court of Appeals for the Sixth Circuit distinguished its earlier holding in Boles v Foltz, 816 F2d 1132 (CA 6, 1987), that a defendant’s statement at his arraignment that he had an attorney did not express a desire to only deal with police through counsel on unrelated charges. United States v Wolf, 879 F2d 1320 (CA 6, 1989). However, while the court held that absent evidence the defendant intends to limit a request for appointment of counsel at an arraignment, the request will trigger the.prophylactic rule of Roberson, its decision relied on the facts particular to defendant Wolf’s arraignment:

Boles is distinguishable from this case. In concluding that the ordinary meaning of Boles’ statement was that he wanted to have his attorney present at an upcoming preliminary hearing, our court relied on evidence in the. record that his statement was made as part of an exchange setting up that hearing. [Wolf, supra, p 1323.]

Similarly, it is clear, relying on the evidence in the record, that in the case now before this Court, the defendant’s request for counsel at his arraignment indicated that the statement reflected only the desire for legal assistance on the assault and breaking and entering charges.

48 The record does not support the dissent’s conclusion that when the defendant requested counsel at his arraignment he was requesting the assistance of counsel at subsequent interrogations on unrelated charges.

49 This reasoning is also supported by the holding in Connecticut v Barrett, 479 US 523, 528; 107 S Ct 828; 93 L Ed 2d 920 (1987), where the Court defined the prophylactic purpose of Miranda, with regard to the prohibition on further interrogation once counsel has been requested as

designed to insulate the exercise of Fifth Amendment rights from the government "compulsion, subtle or otherwise,” that "operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.”

The Court concluded that there was no constitutional objective to be served by suppression of the defendant’s statement. Id.

50 The dissent refuses to recognize that the defendant made clear to the fbi agents his willingness to talk about the crime for which he was a suspect.