Opinion
Docket No. 18524.
Decided June 23, 1975. Leave to appeal applied for and, by order of the Supreme Court, defendant's conviction reversed and remanded for a new trial, 395 Mich ___.
Appeal from Kalamazoo, Donald T. Anderson, J. Submitted Division 3 January 6, 1975, at Grand Rapids. (Docket No. 18524.) Decided June 23, 1975. Leave to appeal applied for and, by order of the Supreme Court, defendant's conviction reversed and remanded for a new trial, 395 Mich ___.
Leon Hooper was convicted of armed robbery. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Donald A. Burge, Prosecuting Attorney, and Stephen M. Wheeler, Chief of Appellate Division, for the people.
Dennis H. Benson, Assistant State Appellate Defender, for defendant.
Before: V.J. BRENNAN, P.J., and J.H. GILLIS and D.E. HOLBROOK, JR., JJ.
Defendant was found guilty by a jury of armed robbery. MCLA 750.529; MSA 28.797. He was sentenced on July 9, 1973, to a term of 8 to 20 years and appeals as a matter of right.
On appeal defendant asserts six assignments of error. We find that only two of these merit consideration. The other issues are controlled by the following cases: People v Henderson, 47 Mich. App. 53; 209 N.W.2d 326 (1973), People v Roberson, 55 Mich. App. 413; 222 N.W.2d 761 (1974), People v McShan, 53 Mich. App. 407; 219 N.W.2d 792 (1974), and People v Erb, 48 Mich. App. 622; 211 N.W.2d 51 (1973).
Defendant contends that the trial judge committed reversible error by failing to exercise his discretion in denying defendant's pretrial motion to exclude reference to defendant's prior criminal record. We have examined the record and determined that the trial judge did exercise his discretion in denying the motion. People v Jackson, 391 Mich. 323; 217 N.W.2d 22 (1974).
Defendant also contends that the trial court erred in determining that defendant's confession was voluntary and admissible. The trial court conducted a Walker hearing on October 26, 1972, and ruled that the signed statement was voluntary and admissible. In addition, the court ruled admissible several other statements which defendant made to police officers subsequent to his arrest, and ruled inadmissible two other statements. We find no reversible error in the court's determination on this issue.
In a supplemental brief, defendant raised a seventh issue. This assignment of error is without merit in the light of People v Milton, 393 Mich. 234; 224 N.W.2d 266 (1974).
Affirmed.
Due to the testimony at the Walker hearing, I am compelled to dissent on the issue of the admission at trial of the defendant's statement.
People v Walker (On Rehearing), 374 Mich. 331; 132 N.W.2d 87 (1965).
During the hearing, there was testimony indicating the following sequence of events: (1) the defendant was taken into police custody around 1 a.m. on July 25, 1972, and processed through the normal booking routine; (2) the arresting officer advised the defendant of his rights under Miranda v Arizona, 384 U.S. 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), immediately after the arrest while conveying the defendant to the police station; (3) shortly following his removal to a jail cell, the jailer, William Kirk, assisted the defendant in preparing petition forms for appointed counsel; (4) Detective Leon White was assigned the investigation of the armed robbery with which the defendant was charged at about 10:15 a.m. on July 25, 1972; and, (5) pursuant to his investigation, Detective White had the defendant brought to a nearby conference room at the jail for questioning.
Detective White testified that at this interview he explained the Miranda rules thoroughly to the defendant and was convinced that they were understood and waived. Detective White obtained a statement which he reduced to writing. The statement inculpated the defendant in the charged offense, supplying details and descriptions of the occurrence. Basically, the writing consisted of a summary of their discussion and the defendant's communications as well as a complete waiver of the rights set forth in Miranda, supra. The defendant's signature appears on the statement.
The crux of the problem is whether, once the defendant has expressed an interest in obtaining appointed counsel, the state may seek a waiver of the right to have counsel present at any investigations and continue to interrogate the defendant.
Underlying this posturing of the issue is the view that the state is bound by the defendant's notice to the jailer that he wished to invoke his rights. It is fairly evident that a jailer, who is a duly assigned member of the police department, has the duty to communicate and document any pertinent information, requests, or actions of those in his custody to the department and other authorized agents who are involved with the cases of those incarcerated. Thornton v City of Flint, 39 Mich. App. 260, 269-271; 197 N.W.2d 485 (1972). This conclusion is not unwarranted, particularly since the jailer, William Kirk, did record other comments and admissions made by the defendant during the same period. It would be inherently unjust to expect a defendant to repeatedly alert each agent of the state of his request for counsel; such matters are routinely recorded in a defendant's file and the defendant should not be required to reassert his rights. Notice to one agent should be sufficient to bind the entire department and its agents. Giglio v United States, 405 U.S. 150, 154; 92 S Ct 763, 765; 31 L Ed 2d 104, 109 (1972). In the case at bar, it might have been the case that the defendant misperceived the situation and assumed his petition had been denied.
In Miranda v Arizona, supra at 444-445, the court set forth the holding as follows:
"* * * the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. * * * If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." (Emphasis supplied.)
Later, the court noted at 474-475,
"If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.
* * *
"If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person's Fifth Amendment privilege so long as they do not question him during that time.
"If 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." (Emphasis supplied.)
Thus, once the defendant indicated an interest in representation, the state was obliged to terminate its interrogation of him and provide counsel. After a review of the entire record, it is the function of the appellate court to make an independent determination of voluntariness, People v Robinson, 386 Mich. 551, 557; 194 N.W.2d 709 (1972), People v McGillen #1, 392 Mich. 251, 262-264; 220 N.W.2d 677 (1974), and my determination is that the state has failed to sustain its burden of proof in the case at bar.
People v Lewis, 47 Mich. App. 450; 209 N.W.2d 450 (1973), involved a similar, but factually less-compelling situation from that of the defendant, yet the Court reversed. The defendant in Lewis, supra, merely inquired "whether it was possible to obtain an attorney at that hour". When the police replied negatively, he responded with "forget it". The Court analyzed these facts, and applying the Miranda doctrine, held that further interrogation should have been suspended until counsel was secured. Therefore, the confession obtained through subsequent interrogation was determined inadmissible as the "`forget it' did not constitute a voluntary, knowing, and intelligent waiver of the right to counsel". People v Lewis, supra at 453. Lewis is dispositive of this issue.
I am not unmindful of the recent decisions of People v Smith, 59 Mich. App. 25; 228 N.W.2d 826 (1975), and People v Van Epps, 59 Mich. App. 277; 229 N.W.2d 414 (1975). In Smith, the testimony conflicted as to whether the defendant requested counsel whereas here, the jailer expressly testified about providing assistance to the defendant in completing a petition form for counsel. In Van Epps, despite conflicting testimony, the Court determined that there was no request for counsel preceding the interrogation. Hence, in light of the factual situation in the instant case it was totally inappropriate for the state's agents to proceed with the interrogation of the defendant.
I would reverse defendant's conviction and remand for a new trial barring admission of defendant's confession.