Per Curiam.
The defendant was convicted of three counts of criminal sexual conduct in the first degree, MCL 750.520b; MSA 28.788(2). The Court of Appeals reversed those convictions because it found that the defendant, who had waived his right to have his counsel present at a polygraph
examination, had not knowingly and understanding^ waived that right as to post-examination interrogation. The Court ruled that since counsel was not present during the questioning which took place after the polygraph examination, defendant’s Sixth Amendment right to counsel had been violated. Accordingly, the Court concluded that inculpatory statements made by the defendant during this questioning should not have been admitted at his trial.
We agree with the Court of Appeals conclusion that these statements should not have been admitted. However, we premise our agreement on the ground that the defendant did not knowingly waive his right to remain silent in view of the stipulation executed by the prosecution and the defense whereby the results of the polygraph examination and opinions drawn therefrom would not be admissible in evidence.
The judgment of the Court of Appeals is affirmed.
Williams, C.J., and Kavanagh, Levin, Ryan, Brickley, Cavanagh, and Boyle, JJ., concurred.
Williams, C.J.
(writing separately).
Although concurring with the per curiam decision, I write specifically, having arrived at that decision by the following analysis. A statement of the facts are included herein since the per curiam opinion excluded such statement.
I. Introduction
Whether under the Michigan Constitution there was a valid waiver of defendant’s right to the assistance of counsel for his defense is the major
issue in this case.
That issue is one of first impression in this Court and has not been ruled on by the United States Supreme Court.
The waiver issue arises from the defendant submitting to a polygraph examination after it was suggested by the prosecution and after defendant’s lawyer secured a stipulation and a court order which he argues suppresses all evidence from questions while in the polygraph examination room, and which the prosecution argues does not suppress testimony after defendant was detached from the polygraph machine. Miranda
rights were read three times prior to the beginning of the polygraph examination, and defendant responded "yeah” to his understanding of those rights and "yeap” to whether he waived them. This is the principal evidence of the alleged waiver. At no time during the interview were defendant’s rights under the stipulation and the court order, and their relation to his
Miranda
rights, or the peculiar importance of assistance of counsel in an interrogation situation explained to him. Before trial, defendant moved on the basis of the stipulation and court order to suppress his responses to the polygraph examiner to questions after he was detached from the polygraph machine. The trial
court denied the motion, but the Court of Appeals reversed, finding a denial of defendant’s Sixth Amendment right to counsel.
Thus, I hold that the prosecution did not meet its burden under the Michigan Constitution of proving that the defendant knowingly, intelligently, and intentionally relinquished his right to counsel for his defense.
II. Facts
The events which gave rise to the charged offenses occurred on the evening of May 17, 1980. At trial, complainant, Mary O’Connor, testified that at 9:30 p.m. she left the fabric store where she was employed in the Oakland Mall. She walked with two other women toward her car in the parking lot. Since her car was parked farther away than the other women’s she continued alone to her car.
Upon reaching her car, Ms. O’Connor opened her door, got in on the driver’s side, and closed her umbrella outside the car with the door still open. She testified that defendant suddenly appeared, showed her a three- to four-inch kitchen paring knife, ordered her to move over to the passenger side, and took control of the car. After driving around for a short time, defendant parked the car behind an industrial building in Troy, and forced her to submit to intercourse. Then defendant drove to another lot in Troy where she was again forced to submit to sexual intercourse. Defendant then left the car. Ms. O’Connor drove to her parents’ home and subsequently was taken to Crittendon Hospital where she was examined by a doctor and interviewed by a Troy Police Department officer.
Detective Teasdale testified that on July 1, 1980, Ms. O’Connor identified the defendant from a
photo line-up. The detective testified that he arrested the defendant on July 2, 1980 at his place of employment. The arrest was made as defendant was entering his car. A knife and rope were removed from the car of Matthew Leonard during the impoundment inventory procedure.
A preliminary examination was held on July 15, 1980 in the 52-4 District Court. Defendant was bound over to the Oakland Circuit Court as charged.
The defendant was arraigned in the Oakland Circuit Court on August 1, 1980. A notice of alibi defense was subsequently filed by defendant’s counsel on August 15, 1980.
On December 10, 1980, at the suggestion of the prosecution, defendant agreed to take a polygraph examination to be administered at the Michigan State Police Northville Crime Laboratory. Prior to the administration of that examination defense counsel drafted a stipulation which read:
"Stipulation for Inadmissibility of Polygraph Exam and Results
"It is hereby stipulated and agreed, by and between the parties hereto, through their respective attorneys that neither the submission of Matthew Leonard to the polygraph examination, the results of the polygraph examination, nor anyone’s opinion as to the results of the polygraph examination shall be admissible in a trial of the above referenced case number [No. 80-45346-FY] or any purpose whatsoever, by either party.”
The prosecution agreed to the stipulation, and both the stipulation and an order signed by the trial judge were entered.
Defense counsel accompanied defendant to the examination site and
reassured him that the results of the polygraph examination could not be used against him in court because they were excluded by the court’s order. Defense counsel requested to view the administration of the polygraph examination and was denied the opportunity by the police agents in charge. Defense counsel waited for defendant outside the examination room.
On September 10, 1981, defense counsel brought a motion to suppress the confession made by defendant after he had been detached from the polygraph machine on December 10, 1980. The trial court denied that motion stating that the statements made after defendant was detached from the machine were not covered by the stipulation and order, but were separate and distinct from the polygraph examination. Further, the trial court found that there were ample
(Miranda)
warnings given prior to the polygraph examination, and that the questions in issue were asked in a time span short enough to be encompassed by the original warnings. Testimony of the polygraph examiner was allowed at trial over defense counsel’s objections.
At trial Mary O’Connor identified Matthew Leonard as the perpetrator of her abduction and rape. She testified that the rope taken from defendant’s car upon his arrest was "just like the rope” used in her abduction; however, she stated that the knife known as People’s Exhibit No. 2 was definitely not the knife which defendant showed her.
John Wojnaroski, a Michigan State Police trooper, testified that he conducted an interview with defendant on December 10, 1980. He testified that he interviewed the defendant for approximately two and one-half hours and asked him 125
to 150 questions.
At the conclusion of this interview, he asked the defendant three additional questions: 1) if he had at least advised his attorney as to what the whole truth of the investigation was; 2) if he was sorry for what he did to the victim and that the victim would have been in this situation; and 3) if he knew what caused him to do this to the victim. To the first question, defendant responded by looking down and shaking his head. To the second question, defendant again looked down and nodded, yes, more or less looking down at his legs and making a couple nods of his head. To the last question, defendant verbalized, "No.”
After hearing the arguments, the jurors deliberated and returned a verdict of guilty on three counts of criminal sexual conduct in the first degree, MCL 750.520b; MSA 28.788(2) and not guilty on the count of kidnapping, MCL 750.349; MSA 28.581. On November 6, 1981, Matthew Leonard was sentenced to life imprisonment on Count I, 25 to 100 years on Count II, and 25 to 100 years on Count III.
On appeal, one of the issues raised was whether the trial court erred by allowing Trooper Wojnaroski to testify as to the admissions made by the defendant. On May 17, 1983, the Court of Appeals reversed the trial court’s ruling on the issue of admitting into evidence such confession, and remanded the case for new trial.
People v Leonard,
125 Mich App 756; 337 NW2d 291 (1983).
The people filed an application for leave to appeal the decision of the Court of Appeals on
June 6, 1983, raising only the issue decided by the Court of Appeals. On June 27, 1983, the defendant filed a response to the application for leave to appeal and a motion to add the additional three issues. On December 29, 1983, this Court issued its order granting the people’s application and indicated that the defendant’s additional issues were also granted.
III. Importance op Right to Counsel
The first and principal issue of this case is whether the defendant validly waived his right to counsel.
That issue is a matter of first impression in this Court.
As a consequence, before analyzing what test should be used to determine waiver, it is useful to review the significance of the right to counsel. The American constitution-makers spent many long months to put together the world’s most nearly perfect form of government. However, before approving that document, the several American states, with almost one accord, felt some essential things had to be added. Justice Black of the United States Supreme Court takes up the matter in
Johnson v Zerbst,
304 US 458, 462-463; 58 S Ct 1019; 82 L Ed 1461 (1938):
"The Sixth Amendment guarantees that 'In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.’ This is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. Omitted from the Constitution as
originally adopted, provisions of this and other Amendments were submitted by the first Congress convened under the Constitution as essential barriers against arbitrary or unjust deprivation of human rights. The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not 'still be done.’ It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel. That which is simple, orderly and necessary to the lawyer, to the untrained layman may appear intricate, complex and mysterious.”
The "right to counsel for his defence” in the Sixth Amendment
was adopted in those same words as part of the Michigan Constitution and appear as art 1, § 20 of the 1963 Constitution.
All constitutional rights are important, but it stands to reason that the right to counsel is of particular importance. For without this right the practical enjoyment of the other rights is often not realized. Especially after the defendant has been
arraigned, as here, it is important for a defendant to have an attorney standing with him to protect the enjoyment of his rights. As the United States Supreme Court said in
Kirby v Illinois,
406 US 682, 689; 92 S Ct 1877; 32 L Ed 2d 411 (1972):
"It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.”
The United States Second Circuit Court of Appeals further describes this situation as follows:
"Thus, after prosecution has begun, the right to obtain the assistance of counsel at all crucial stages is essential if both the symbol and reality of a fair trial are to be preserved; the Sixth Amendment guarantees the accused 'that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.’ ”
United States v Mohabir,
624 F2d 1140, 1149 (CA 2, 1980).
This brief survey indicates beyond peradventure that the federal courts have regarded the right to counsel to be of paramount importance. There do not appear to be any Michigan cases articulating this philosophy, but two cases
have quoted with approval the following language from
Von Molte v Gillies,
332 US 708, 723-724; 68 S Ct 316; 92 L Ed 309 (1948):
"We have said: 'The constitutional right of an accused
to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.’
(Johnson v Zerbst,
304 US 458, 465 [58 S Ct 1019; 82 L Ed 1461; 146 ALR 357 (1938)];
Adams v United States ex rel McCann,
317 US 269, 270 [63 S Ct 236; 87 L Ed 268; 143 ALR 435 (1942)].) To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel
(Johnson v Zerbst, supra,
464;
Glasser v United States,
315 US 60, 70 [62 S Ct 457; 86 L Ed 680 (1942)]), a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge’s responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which a plea is tendered.”
IV. Test for Waiver of Right to Counsel
The leading United States Supreme Court opinion in defining the test for waiver of the right to counsel is
Brewer v Williams,
430 US 387, 404; 97 S Ct 1232; 51 L Ed 2d 424 (1977).
Brewer
states the basic rule in this way:
"[I]t was incumbent upon the State to prove 'an intentional relinquishment or abandonment of a known right or privilege.’
Johnson v Zerbst,
304 US 464 ....
[C]ourts indulge in every reasonable presumption against waiver,
e.g., Brookhart v Janis
[384 US 1, 4; 86 S Ct 1245; 16 L Ed 2d 314 (1966)];
Glasser v United States,
315 US 60, 70. This strict standard applies equally to an alleged waiver of the right to counsel whether at trial or at a critical stage of pretrial proceedings.
Schneckloth v Bustamonte,
412 US 218, 238-240 [93 S Ct 2041; 36 L Ed 2d 854 (1973)];
United States v Wade,
388 US [218, 237; 87 S Ct 1926; 18 L Ed 2d 1149 (1967)].”
The language of the
Brewer
test, as indicated, came from
Johnson v Zerbst.
The latter case explains the test in a way useful to the resolution of this case.
Zerbst
states:
"A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an
intelligent
waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.” (Emphasis added.) 304 US 464.
In other words, the "abandonment or relinquishment” must be done with "an
intelligent’*
waiver of the right to counsel. That is, the right to counsel must be a "known” right and that right must be both "intelligently” and "intentionally” waived insofar as those two terms contain different ideas. That the
Brewer/Zerbst
rule contemplates that the relinquishment be both intentional and
intelligent
is illustrated by the following quotation from Justice Marshall’s discussion of waiver of a Sixth Amendment right in his dissenting opinion in
Wyrick v Fields,
459 US 42, 54; 103 S Ct 394; 74 L Ed 2d 214 (1982). Incidentally, the majority in
Wyrick
did not consider the Sixth Amendment and so did not state a different Sixth Amendment relinquishment test. Justice Marshall stated:
"The State must show that the defendant
intelligently
and
knowingly
relinquished his right not to be questioned in the absence of counsel. The State can establish a waiver only by proving ' "an intentional relinquishment or abandonment” ’ of the right to have counsel present.
Brewer v Williams, supra,
404, quoting
Johnson v Zerbst,
304 US 458, 464 (1938).” (Emphasis added.)
Perhaps the statement that best illustrates what a waiver involves appears in
Adams v United States ex rel McCann,
317 US 269, 279; 63 S Ct 236; 87 L Ed 268 (1942), as follows:
"The right to assistance of counsel and the correlative right to dispense with a lawyer’s help are not legal formalisms. They rest on considerations that go to the substance of an accused’s position before the law. The public conscience must be satisfied that fairness dominates the administration of justice.
An accused must have the means of presenting his best defense. He must have time and facilities for investigation and for the production of evidence. But evidence and truth are of no avail unless they can be adequately presented. Essential fairness is lacking if an accused cannot put his case effectively in court.
But the Constitution does not force á lawyer upon a defendant. He may waive his Constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open.
Johnson v Zerbst,
304 US 458, 468-469.” (Emphasis added.)
As the
Brewer/Zerbst
rule indicates, there are two factors in a waiver: first, the
intelligent
and
intentional
relinquishment; second, of a
known
right. The emphasized language in the above quotation from
Adams
shows what a defendant should know in connection with his right to counsel where he is involved in a trial in order to make his choice with his eyes open.
The present case is not a trial case, it is a
pretrial case. Here the importance of a lawyer is not to marshal and present evidence in the best way, it is to counsel defendant how to conduct himself, and, in an interrogation, to help him to say what he should say to prevent him from saying what he should not say. The latter is particularly true where defendant is to be questioned by a skilled professional interrogator.
Consequently, if a defendant is to waive his right to counsel with his eyes open, it must appear on the record that he has been informed of the importance of having counsel with him in his particular circumstances and the danger he faces without counsel. To make this informing of the defendant equivalent to a
Miranda
warning, the potential interrogator must explain to the defendant the importance of having counsel consistent with our reasoning above and then ask the defendant if he understands. Only then can the potential interrogator ask the defendant whether he waives his right.
Before announcing a basic test for determining a valid waiver of an article 1, § 20 right to counsel, we recognize that the rule we set forth may be subject to later refinements that we are not now called upon to consider because the facts of this case permit us to make our conclusion without reaching those refinements. For example, we recognize that
Lego v Twomey,
404 US 477, 489; 92 S Ct 619; 30 L Ed 2d 618 (1972), held that "the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary. Of course, the States are free, pursuant to their own law, to adopt a higher standard.” In our case there was an almost complete failure of proof so it is unnecessary at this time to explicate a rule relating to the weight of evidence, particularly in absence of argument or briefing on the subject.
While there was argument and briefing as to whether a Michigan rule for waiver should contain a "higher standard” requirement such as is in effect in the federal Second Circuit Court of Appeals
and adopted in some states
and reviewed by some learned commentators,
the facts of this case preclude the necessity of engaging in that exercise at this time because the prosecution’s failure to consider the suppression document or in any way describe the usefulness of counsel in this situation permits the matter to be decided on the most basic consideration.
From our analysis then, we arrive at our rule for waiver where the right to counsel has been invoked and counsel has been consulted:
1. It is incumbent upon the state to prove waiver.
2. Waiver may be proved by showing:
a) an
intentional
and
intelligent
relinquishment,
b) of a
known
right.
The defendant may waive the right of assistance of counsel if he knows what he is doing and his choice is made with his eyes open.
3. Defendant must be apprised of the nature of the protection which an attorney can provide at this stage of the proceeding.
4. A waiver is tested by a strict standard.
5. Courts will indulge in every reasonable presumption against waiver.
6. The strict standard applies at trial or at a crucial stage of pretrial procedure.
V. Application of Waiver Test to Facts of This Case
Turning to the facts of this case, we note that defendant had been bound over to the circuit court and arraigned approximately four months before the polygraph examination. Defendant had retained counsel and relied upon advice of counsel as to the stipulation, and counsel accompanied defendant to the polygraph site. As a consequence the rule requiring the initiation of adversary judicial proceedings prior to the attachment of the right to counsel was satisfied.
Brewer v Williams, supra; Massiah v United States,
377 US 201; 84 S Ct 1199; 12 L Ed 2d 246 (1964).
Plaintiff claims that the record shows he satisfied our test by showing that defendant made a "knowing and intelligent relinquishment or abandonment of his rights.”
Plaintiff, however, introduced no evidence that defendant made an intentional and intelligent relinquishment of his right to counsel for his defense beyond the "yeah” to the question of whether he understood his
Miranda
rights and the "yeap” to the question of whether he relinquished those rights. Plaintiff made no showing whatsoever as to whether defendant believed his rights under the stipulation and court order meant that whatever he said would be suppressed from introduction into evidence, as defendant claimed, or that defendant believed that only what he said while attached to the polygraph machine would be excluded from evidence, as plaintiff claimed.
The importance of the failure of plaintiff to show that defendant correctly understood the implication of his evidence suppression stipulation and court order is that, without a showing of such correct understanding, it is impossible to know whether defendant
intelligently
relinquished his right to counsel for his defense. Further, since relinquishment is dependent upon a knowing understanding of both the extent of that right and the protection which that right affords at this stage of the proceedings, on the showings made by plaintiff in this case, a failure to show that defendant understood the right itself necessarily requires failure of his knowledge of the extent of protection provided by the right.
In this case we do not know whether defendant assumed, correctly or incorrectly, that the evidence suppression stipulation and court order did not cover the questions and answers involving his confession, but nonetheless intentionally relinquished the right to have counsel at his side. Of course, if defendant knew these documents did not protect him, and he still intentionally relinquished his rights, then he would have made a valid
waiver and the plaintiff would have made his case, unless defendant’s assumptions were incorrect, in which case the suppression order would override the waiver. But plaintiff failed to prove defendant’s assumptions and, consequently, plaintiff did not prove that defendant made an intelligent relinquishment and a viable waiver.
Of course, if the fact of the matter were that defendant assumed that the stipulation and order suppressed everything he said while in the polygraph room, and that were not true, and he relinquished his rights on that assumption, it would not have been an intelligent relinquishment. Consequently, there would not have been a valid waiver.
In any event, whatever the facts might have been as to defendant’s understanding of the effect of the stipulation and court order, correct or incorrect, since plaintiff made no showing whatsoever on the subject, plaintiff failed to make necessary proofs. Consequently there was no valid waiver, and the evidence was improperly admitted by the trial court.
But leaving aside the particular facts of the case just discussed, plaintiff made no showing that defendant understood his constitutional right to counsel under the Michigan Constitution aside from his article 1, § 17 rights. It has been held more than once, and we now hold under the instant facts, that the giving of a
Miranda
warning does not automatically satisfy a defendant’s Sixth Amendment or article 1, § 20 rights.
We have discussed in connection with
Adams, supra,
what a defendant must know about the potential advice and usefulness of counsel in both a trial and a pretrial interrogation in order to satisfy the test of
intelligent
relinquishment of a
known
right. What a defendant must know is further illustrated in the rule set down in
Von Molte, supra.
Whether defendant had any knowledge of what his right to counsel was in the instant interrogation and therefore was in a position to make, as plaintiff averred, "a knowing and intelligent relinquishment or abandonment of his rights” is impossible to determine on the basis of the record made by the plaintiff. The record shows only that the plaintiff gave the
Miranda
explanation and asked the
Miranda
questions and these, of course, from what we have just said, fell far short of article 1, § 20 constitutional requirements. Therefore without any reference to the evidence suppression stipulation and court order, the plaintiff failed to show a valid waiver.
The prosecution relies on
Wyrick v Fields, supra.
That case is not apposite for a number of reasons. First and foremost,
Wyrick
was decided on Fifth not Sixth Amendment grounds. Second, there was no stipulation or court order of evidence suppression. Third, the defendant in
Wyrick
repeated his confession after further
Miranda
warnings. Fourth, the defendant in
Wyrick,
unlike the defendant in this case, upon the advice of counsel, requested the polygraph test.
VI. Conclusion
The decision of the Court of Appeals is affirmed as to the exclusion of defendant’s inculpatory statements made in the polygraph interview room following his detachment from the polygraph machine.
Also, I agree with the per curiam opinion upholding the Court of Appeals reversal. Defendant’s inculpatory statements made in the polygraph interview room following his detachment from the polygraph machine should have been excluded at the trial since defendant did not knowingly waive his right to counsel in view of the stipulation executed by the prosecution and defense whereby the results of the polygraph examination and opinions drawn therefrom would not be admissible in evidence.