People v. Kowalski

584 N.W.2d 613, 230 Mich. App. 464

• Court: Michigan Court of Appeals
• Decided: September 29, 1998
• Docket: Docket 190352
• Status: Published

Opinions

Per Curiam.

On December 18, 1975, defendant was convicted by a jury of first-degree murder, MCL 750.316; MSA 28.548. He was sentenced on January 22, 1976, to life imprisonment. He now appeals by leave granted from an order denying his motion for a new trial. We affirm.

i

This case has an unusual procedural history. Defendant’s conviction arises from the November 30, 1974, shooting deaths of two gasoline station attendants. At trial, the prosecutor introduced a police confession in which defendant admitted that he and a codefendant, Ronald Sands, shot the two attendants during a robbery. Codefendant Sands was tried separately and also found guilty of first-degree murder.¹

The pertinent facts surrounding defendant’s police confession are not in dispute.² 3On the morning of November 30, 1974, the police questioned defendant and codefendant Sands about a shooting that occurred earlier that morning at a Tulsa gasoline station. Sands was a former employee of the gasoline station and had been observed in the vicinity of the gasoline station in the company of defendant. Defendant was advised of his Miranda3 rights, and he denied any knowledge of the offense, following which he was released. Later that day, defendant and codefendant Sands returned to the police station for further questioning.

At 2:13 P.M., an assistant prosecutor, Richard Thompson, interviewed defendant in the presence of Detective Robert Lister. After being advised of his Miranda rights, defendant asked to speak to an attorney. The questioning immediately ceased, and Thompson informed defendant that they would not talk to him until he had an attorney. Defendant was then taken to another office and left alone. He had access to a telephone, but was not free to leave. While waiting in the office, defendant used the telephone to call a friend to ask for assistance in locating an attorney. The friend apparently informed defendant that he would call back, but defendant never received a return telephone call. In the meantime, the police obtained a statement from codefendant Sands describing what occurred at the Tulsa gasoline station.

Shortly before 3:40 P.M., Detective Lister returned to the office where defendant was located, informed defendant that codefendant Sands had given a statement, and asked him if he “would still like to talk to an attorney.” Lister did not discuss the substance of Sands’ statement with defendant or mention what effect, if any, the statement might have on defendant’s case. Defendant told Lister, “if Ron [Sands] didn’t want an attorney, neither did he and he would give a statement.” Lister then contacted Thompson, telling him that defendant was now willing to waive his rights and give a statement. Thompson returned and conducted a second recorded interview. Before asking any questions about the offense, Thompson once again advised defendant of his Miranda rights and inquired specifically whether he wished to speak to an attorney. Defendant told Thompson that he understood his rights and was now willing to waive his rights and give a statement.⁴ Defendant thereafter told Thompson that he and codefendant Sands shot the two gasoline station attendants during a robbery. Defendant stated that one of the attendants had “smarted off” to Sands, whereupon Sands shot the attendant with a rifle. Sands then handed the rifle to defendant, and defendant reloaded the rifle and shot the other attendant.

Defendant brought a pretrial motion challenging the admissibility of his confession, maintaining that it was involuntary and obtained in violation of his right to counsel. Following an evidentiary hearing, the trial court denied the motion to suppress, ruling:

Mr. Kowalski did exercise his rights. It is the view of this Court after reviewing all of the physical circumstances that occurred after that, that he decided on his own to waive these rights, and I can find no coercion either implied or psychological or otherwise that caused him to do so. It appears to this Court it was a decision made entirely by himself without any outside or undue pressure.

On March 11, 1976, defendant’s appointed appellate attorney timely filed a motion for a new trial, alleging error in the denial of the pretrial motion to suppress defendant’s confession. Although a hearing on the motion was scheduled for March 24, 1976, the record indicates that the matter was adjourned without a new hearing date being set. For reasons that are unclear, no further action was taken on the motion, nor was a decision on the motion ever entered.

More than fifteen years later, in 1991, defendant wrote a letter to the court inquiring about the status of his case. The letter mentioned several unsuccessful attempts by defendant to contact his appointed attorney regarding the case during the preceding fifteen years. Because the judge who presided over defendant’s 1975 suppression hearing and trial had retired, the matter was assigned to a new judge, who thereupon appointed a new attorney to represent defendant. Defendant’s new attorney subsequently filed a “supplement” to the 1976 motion for a new trial, taking the position that the 1976 motion was “still pending” because it had never been withdrawn or otherwise resolved. The supplemental motion alleged that defendant’s police confession was obtained in violation of Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981). Although Edwards was decided more than four years after defendant was convicted, it was given limited retroactive effect in Shea v Louisiana, 470 US 51, 59; 105 S Ct 1065; 84 L Ed 2d 38 (1985), to cases that were pending on direct review at the time it was decided. Defense counsel took the position that defendant’s case was pending on direct review at the time Edwards was decided because the issue of the admissibility of defendant’s police confession had been raised in a timely filed motion for a new trial, which motion was never withdrawn or otherwise resolved.

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

n

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

On appeal from a ruling on a motion to suppress evidence of a confession, deference must be given to the trial court’s findings. People v Cheatham, 453 (Boyle, J), 44 (Weaver, J); 551 NW2d 355 (1996). We review the record de novo but will not disturb the trial court’s factual findings unless the findings are clearly erroneous. Id.

A

We will first address whether defendant’s police confession was properly admitted under the law in effect at the time of defendant’s suppression hearing and trial.

We begin our analysis with the United States Supreme Court’s decision in Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). In Miranda, the Supreme Court established a set of prophylactic rules to safeguard a suspect’s Fifth Amendment privilege against compulsory self-incrimination. The Court held that a suspect in police custody must be informed specifically of the suspect’s right to remain silent and to have an attorney present before being questioned. Id. at 479. The Court further held that “[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” Id. at 474. Furthermore, “[i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Id. at 475.

The Miranda decision did not state under what circumstances, if any, a resumption of questioning was permitted after a person in custody invoked the rights under Miranda. Moreover, the law in this area remained unsettled in the immediate aftermath of the Miranda decision. At defendant’s suppression hearing, the trial court relied on the decision of the Sixth Circuit Court of Appeals in Hill v Whealon, 490 F2d 629 (CA 6, 1974), in concluding that defendant’s confession was properly obtained. We agree that Hill supports the trial court’s decision to admit defendant’s confession.

In Hill, supra at 632, the police immediately ceased interrogating the defendant after the defendant stated that he did not wish to waive his rights. Approximately ninety minutes later another officer approached the defendant, informed him that a codefendant had made a statement, and inquired of the defendant whether he had anything he wished to say. Id. Without “any further prompting, cajoling, harassment, threats or inducements,” the defendant said that he wanted to talk, whereupon he was taken to an interrogation room and fully advised of his rights, following which he gave a statement. Id. In addressing whether the defendant’s statement was obtained in violation of Miranda, the Sixth Circuit Court of Appeals joined the majority of other federal and state courts presented with the issue and refused to construe Miranda as creating a proscription of any further interrogation once a suspect declined to make a statement. The court instead adopted the position of the Second Circuit Court of Appeals in United States v Collins, 462 F2d 792, 802 (CA 2, 1972), which held:

“[We] axe agreed that what Miranda requires is that ‘interrogation must cease’ until new and adequate warnings have been given and there is a reasonable basis for inferring that the suspect has voluntarily changed his mind.” [Hill, swpra at 635.]

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

The facts of this case are strikingly similar to those in Hill. Here, Thompson immediately ceased all questioning after defendant asked for an attorney. Approximately ninety minutes later Detective lister approached defendant to inform him that codefendant Sands had given a statement and to inquire whether defendant still wanted an attorney. Without any evidence of further prompting or coercion, defendant indicated that he wished to waive his right to an attorney and give a statement. Afterwards, defendant was fully advised of his Miranda rights before any further questioning was conducted, following which he repeated his desire to waive his right to an attorney and give a statement.

The foregoing facts demonstrate that, in compliance with Hill, defendant was given a new set of Miranda warnings before any further questioning was conducted. Moreover, the trial court, upon considering “all of the physical circumstances that occurred after” defendant initially invoked his right to an attorney, concluded that there was “no [police] coercion either implied or psychological or otherwise” regarding defendant’s decision to give a statement, and that the decision to give a statement without an attorney was “made entirely by [defendant] without any outside or undue pressure.” Our independent review of the record convinces us that the trial court’s conclusions are not clearly erroneous.

We disagree with defendant’s claim that suppression of his police confession was required by this Court’s decision in People v Mosley, 51 Mich App 105; 214 NW2d 564 (1974). In Mosley, id. at 107, the police advised the defendant of his Miranda rights and began questioning him about some robberies. The defendant asserted his right to remain silent and the interrogation ceased. Id. Approximately two hours later, another police officer again advised the defendant of his Miranda rights and began questioning him about an unrelated murder, following which the defendant gave an incriminating statement. Id. Although this Court concluded that the statement was obtained in violation of Miranda, this Court’s decision was subsequently reversed by the United States Supreme Court in Michigan v Mosley, 423 US 96; 96 S Ct 321; 46 L Ed 2d 313 (1975).

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

At the other extreme, a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests. [Id.]

After concluding that Miranda could not “sensibly be read to create a per se proscription of indefinite duration” upon any farther police questioning after a person in custody has indicated a desire to remain silent, the Court stated its holding as follows:

We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his “right to cut off questioning” was “scrupulously honored.” [Id. at 104.]

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

Accordingly, in view of the foregoing discussion, we conclude that the trial court did not err in admitting defendant’s police confession under the law in effect at the time of defendant’s suppression hearing and trial.

B

We now turn to a consideration of defendant’s claim that relief is warranted under the Supreme Court’s subsequent decision in Edwards, supra. Defendant must overcome two hurdles in order to be entitled to relief on the basis of Edwards. Not only must defendant demonstrate that his confession was obtained in violation of Edwards, but he must also demonstrate that Edwards may be properly applied to his case. Failing either, appellate relief is not warranted. We conclude that even if defendant were to succeed in convincing us that Edwards applies to this case, he has failed to convince us that his confession was obtained in violation of Edwards.⁵ For this reason, we find that appellate relief is not warranted.

In Edwards, supra at 479, following some initial police questioning, the defendant invoked his right to counsel, and the interrogation ceased. The next moming, police officers went to the county jail and asked to see the defendant. The defendant refused to speak to them, but was told that “he had” to talk. Id. The officers informed defendant of his Miranda rights, following which he gave a statement implicating himself. Realizing that additional safeguards were necessary to protect an accused’s request for counsel, the Supreme Court in Edwards established a second layer of prophylaxis for the Miranda right to counsel:

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

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

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

For purposes of Miranda, interrogation refers to express questioning or its “functional equivalent.” Rhode Island v Innis, 446 US 291, 300-301; 100 S Ct 1682; 64 L Ed 2d 297 (1980); People v Anderson, 209 Mich App 527, 532, 533; 531 NW2d 780 (1995). The “functional equivalent” of interrogation includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Innis, supra at 301.

As a general principle, a mere inquiry into whether an accused has changed his mind about wanting to speak without an attorney present is not considered “interrogation” within the meaning of Edwards. Justice Powell, in his concurring opinion in Edwards, touched upon this subject when distinguishing between permissible custodial communications and custodial interrogation:

Communications between police and a suspect in custody are common-place. It is useful to contrast the circumstances of this case with typical, and permissible, custodial communications between police and a suspect who has asked for counsel. For example, police do not impermissibly “initiate” renewed interrogation by engaging in routine conversations with suspects about unrelated matters. And police legitimately may inquire whether a suspect has changed his mind about speaking to them without an attorney. E.g., State v Turner, 32 Or App 61, 65; 573 P2d 326, 327 (1978); see State v Crisler, 285 NW2d 679, 682 (Minn, 1979); State v Marcum, 24 Wash App 441, 445-446; 601 P2d 975, 978 (1979). It is not unusual for a person in custody who previously has expressed an unwillingness to talk or a desire to have a lawyer, to change his mind and even welcome an opportunity to talk. Nothing in the Constitution erects obstacles that preclude police from ascertaining whether a suspect has reconsidered his original decision. [Edwards, supra at 490 (emphasis added).]

Other states, relying on Justice Powell’s concurring opinion in Edwards, have held that inquiries aimed at determining whether a suspect has had a change of mind about wanting to speak to an attorney do not constitute police-initiated interrogation within the meaning of Edwards. In Moulds v State, 429 So 2d 1176, 1176-1177 (Ala Crim App, 1983), the accused invoked her right to counsel but was unable to contact her attorney after being given an opportunity to do so. A police sergeant thereafter spoke to the accused for a few minutes and then told her that her attorney would tell her not to make a statement. Id. at 1177. The accused responded that she “wanted to go ahead and talk anyway.” Id. The court rejected the argument that the sergeant’s actions constituted interrogation. Id. at 1178. The court further held that “[t]he defendant’s assertion that she was ready to make a statement, even if made in response to an officer’s inquiry of whether she had ‘changed her mind about speaking to them without an attorney,’ constitutes a communication initiated by the accused under Edwards.” Id. at 1179.

In Commonwealth v D'Entremont, 36 Mass App 474, 475; 632 NE2d 1239 (1994), the defendant was arrested for rape and placed in a jail cell after invoking his right to remain silent and to have counsel present. A detective subsequently interviewed the victim and then went to the defendant’s cell. Id. The detective informed the defendant that she had interviewed the victim and that she knew the defendant had advised the police earlier that he did not want to talk, but if he changed his mind, then she would be willing to speak with him. The defendant informed the detective that he wanted to tell his side of the story. Id. The detective advised the defendant of his Miranda rights and the defendant subsequently gave a statement. Id. 476. The court held that the detective’s statements at the jail cell did not constitute interrogation. Id. at 479-480. The court further determined that the defendant, by stating that he wanted to tell his side of the story, “ ‘initiated’ further conversation in the ordinary dictionary sense of that word.” Id. at 480.

Similarly, in Bunch v Thompson, 949 F2d 1354, 1361 (CA 4, 1991), the court held that a defendant’s statement was not the product of “police-initiated interrogation” where it followed an inquiry that “amounted to nothing more than an effort to ascertain if Bunch had changed his mind about wanting an attorney.” See also McCall v State, 501 So 2d 496, 500 (Ala Crim App, 1986) (holding that although interrogation may not continue after a suspect has requested counsel, the police legitimately may inquire whether the suspect has changed his mind about speaking to them without an attorney); State v Acquin, 187 Conn 647, 669-670; 448 A2d 163 (1982) (finding that inquiries about counsel do not constitute interrogation); Foster v Commonwealth, 8 Va App 167, 174; 380 SE2d 12 (1989) (holding that once a suspect has invoked his right to counsel, police may still legitimately inquire whether the suspect has changed his mind about speaking to them without an attorney).

In light of the foregoing authorities, we conclude that Detective Lister’s inquiry into whether defendant “would still like to talk to an attorney” did not constitute police-initiated interrogation within the meaning of Edwards.

We further conclude that Detective Lister’s remark informing defendant that codefendant Sands had given a statement did not constitute interrogation. The remark did not involve any express questioning, but merely described an event that transpired since Lister last saw defendant. Significantly, Detective Lister made no attempt to discuss the substance of Sands’ statement with defendant or to discuss what effect, if any, Sands’ statement might have on defendant’s case. In this context, the remark was not likely to elicit an incriminating response. In People v McCuaig, 126 Mich App 754, 759-760; 338 NW2d 4 (1983), this Court found that a similar remark, which was made under similar circumstances, did not constitute interrogation. In McCuaig, supra at 757, the defendant invoked his right to an attorney while being questioned. The officer responded that he would comply with the request and that no further questioning would be conducted. Id. However, the officer then advised the defendant of the nature of the charge against him and described the circumstances that led the police to believe that the defendant was the culprit. Id. The defendant responded by stating that the officer had been fair with him and that he had changed his mind and wished to give a statement. Id. This Court held that the defendant’s statement was not made in response to further interrogation by the police:

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

Accordingly, under the facts of this case, we hold that defendant was not subject to further police-initiated interrogation before he gave his police confession. Furthermore, we hold that defendant, by unequivocally indicating that he no longer wanted an attorney and he "wished to give a statement, initiated the conversation that ultimately led to his confession. No attempt was made to discuss the case with defendant before he made that statement. As the court observed in Moulds, supra at 1179, “defendant’s assertion that [he] was ready to make a statement, even if made in response to an officer’s inquiry of whether [he] had ‘changed [his] mind about speaking to them without an attorney,’ constitutes a communication initiated by the accused under Edwards.”

c

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

Affirmed.

1 See People v Sands, 82 Mich App 25; 266 NW2d 652 (1978).

2 In his brief, defendant acknowledges that “there is no conflict over the facts of what occurred during the two interrogations of Mr. Kowalski on November 30, 1974.”

3 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

4 The following colloquy occurred between Thompson and defendant:

Mr. Thompson: Mr. Kowalski, I know that I gave you your Miranda warnings before and that you wanted to speak to a lawyer before answering any questions.

Defendant: Uh-huh.

Mr. Thompson: You do know that Mr. Ron Sands has talked to us concerning the incident at the Tulsa gas station?

Defendant: Uh-huh.

Mr. Thompson: And as I understand it at this time you wish to waive your rights and you will make a statement as to what happened.

Defendant: Yes.

Mr. Thompson: There’s been no threats or promises made to you.

Defendant: No.

Mr. Thompson: For the record, I’m going to read you your rights again and we’ll go through the same procedure that I went through before. One, you have a right to remain silent. Two, anything you say can and will be used against you in a court of law. Three, you have a right to talk to a lawyer before answering any questions and you have a right to have a lawyer present with you while you are answering any questions. Four, if you can not afford to hire a lawyer one will be appointed to represent you before any questioning if you wish one; and five, you have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned. Do you understand each of these rights?

Defendant: (Shaking head yes)

Mr. Thompson: Would you speak audibly so she can take down your answer? Do you understand those rights?

Defendant: Eight.

Mr. Thompson: Do you wish to talk to a lawyer before any questions?

Defendant: If Eon ain’t going to talk to one, I ain’t either.

Mr. Thompson: In other words, you waive that right.

Defendant: Yes.

Mr. Thompson: And will you waive your right to remain silent and answer any questions?

Defendant: (Shaking head yes)

Mr. Thompson: Yes or no?

Defendant: What do you mean by that?

Mr. Thompson: Will you waive your right to remain silent and will you answer any questions we might ask you?

Defendant: I guess I’ll talk. You can ask me the questions then.

Mr. Thompson: You will talk to us then?

Defendant: Yes.

Mr. Thompson: To make a voluntary statement?

Defendant: Yes.

Mr. Thompson: Just tell us what happened.

5 As noted previously, in Shea, supra at 59, the Supreme Court held that Edwards applies retroactively to cases that were pending on “direct review” when Edwards was decided. The difficulty here is determining whether defendant’s case was pending on “direct review” at the time Edwards was decided in 1981. Resolution of this issue depends, in turn, on whether defendant’s unresolved motion for a new trial properly can be deemed to have been “still pending” at the time Edwards was decided, or whether the motion was abandoned beforehand. Because we conclude that the facts of this case fail to establish a violation of Edwards in any event, we find it unnecessary to decide this latter issue.