Opinion
Docket No. 107152.
Decided October 8, 1990; approved for publication November 9, 1990, at 9:03 A.M. Leave to appeal sought.
Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Rolf E. Berg), for the defendant on appeal.
Before: CAVANAGH, P.J., and McDONALD and MARILYN KELLY, JJ.
Following a bench trial, defendant was convicted of second-degree murder and possession of a firearm during the commission of a felony. MCL 750.317; MSA 28.549; MCL 750.227b; MSA 28.424(2). He appeals as of right. We affirm.
On appeal, defendant claims the trial judge erred in denying his motion to suppress his exculpatory statement made to police. He contends that his right to counsel was violated and that police conduct rendered his statement involuntary.
Defendant was arrested at about 5:00 A.M., five hours after the shooting. He was kept in various lockups that were without sleeping facilities. At 10:55 A.M. he was given his Miranda warnings. He was informed that an attorney would be provided for him if he wanted one. He did not ask for an attorney. Defendant indicated he understood his rights and waived his right to counsel. The police denied defendant's requests to telephone his family.
Miranda v Arizona, 384 U.S. 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
Defendant consented to a search of his house. The investigating officer conducted the search and interviewed other witnesses before taking defendant's statement. While defendant was in custody, an attorney retained by his family went to the police station. He was told that defendant had been informed of his rights and did not wish to speak to an attorney. At 3:55 P.M., defendant gave an exculpatory statement to police. After the statement, the police told him that the attorney was at the station. Defendant was given only a can of juice and some water during the eleven hours of custody.
Defendant argues that the failure of the police to tell him earlier that an attorney was present interfered with and violated his right to counsel under the Michigan Constitution. Const 1963, art 1, § 17.
The United States Supreme Court ruled on a factual situation nearly identical to this one in Moran v Burbine, 475 U.S. 412; 106 S Ct 1135; 89 L Ed 2d 410 (1986). Considering the Fifth and Sixth Amendments of the federal constitution and due process guarantees, it held the police need not inform a suspect of an attorney's efforts to reach him. To constitute a valid waiver of his constitutional rights, it must be determined (1) that a suspect's decision not to rely on his rights was uncoerced, (2) that he knew he could stand mute and request a lawyer, and (3) that he was aware of the state's intention to use his statement to obtain a conviction. Moran, 422-423.
However the Supreme Court recognized that individual states are free to adopt different requirements for police conduct as a matter of state law. Moran, 428. Defendant urges us to impose a stricter standard on police conduct under the Michigan Constitution.
To support this proposition, defendant relies on People v Cavanaugh, 246 Mich. 680; 225 N.W. 501 (1929). The defendant in that case was not only denied an opportunity to speak with his father and with a priest, he was not allowed to send for or employ counsel. Cavanaugh, 688. The Cavanaugh case was decided before federal due process guarantees against involuntary confessions were ruled applicable to the states. Further, the Court in Cavanaugh did not hold that the defendant's confession was involuntary and therefore inadmissible. It ordered a new trial, because defense counsel was not allowed to examine witnesses concerning the circumstances surrounding the confession. Cavanaugh, 689.
The Sixth Amendment of the federal constitution guarantees the right to counsel in all criminal prosecutions. The Fifth Amendment right to counsel is a corollary to the amendment's stated right against self-incrimination and due process. People v Buckles, 155 Mich. App. 1, 5 n 6; 399 N.W.2d 421 (1986). The interrogation was not a criminal prosecution and thus involves the Fifth Amendment right. The Michigan Constitution's self-incrimination guarantee is construed no more liberally than the federal guarantee. People v Burhans, 166 Mich. App. 758, 761; 421 N.W.2d 285 (1988). We decline to apply a more stringent standard than that in Moran.
Next, defendant argues that the totality of the circumstances tended to sap his power of resistance and self-control and rendered his statement involuntary.
Compliance with Miranda is necessary to establishing that a defendant's waiver was knowing and intelligent, but it is not dispositive of the voluntariness issue. People v Godboldo, 158 Mich. App. 603, 605-606; 405 N.W.2d 114 (1986). In determining the voluntariness of a statement, the trial court should consider all the circumstances, including the duration of detention and questioning, the defendant's age, intelligence, education and experience. It should consider his mental and physical state, whether he was threatened or abused, and whether there was unnecessary delay of arraignment. People v Cipriano, 431 Mich. 315, 334; 429 N.W.2d 781 (1988). Intoxication from alcohol can affect the validity of a waiver, but is not dispositive. People v Leighty, 161 Mich. App. 565, 571; 411 N.W.2d 778 (1987), lv den 430 Mich. 895 (1988).
When reviewing a trial court's determination of voluntariness, we examine the entire record and make an independent determination. People v Robinson, 386 Mich. 551, 557; 194 N.W.2d 709 (1972); People v Stricklin, 162 Mich. App. 623, 635; 413 N.W.2d 457 (1987). Great deference is given to the trial court's assessment of the credibility of the witnesses. People v Marbury, 151 Mich. App. 159, 161; 390 N.W.2d 659 (1986). The trial court's findings will not be reversed unless clearly erroneous. People v Kvam, 160 Mich. App. 189, 196; 408 N.W.2d 71 (1987).
Defendant was drinking intoxicants before the shooting and had not slept. During the eleven hours in custody, he was given no place to lie down and no nourishment other than juice and water. He was not allowed to speak with his family until after he made a statement. He was urged to give some reason why he should not be charged with first-degree murder.
However, defendant did understandingly and knowingly waive his rights. He had a high school education, advanced training in the army, and other vocational training. The police reiterated his rights to him orally before he made his statement. Defendant testified that, at and up to that time, he wanted to give his version of the events.
We do not condone or encourage police conduct such as that which occurred in this case. However, we agree with the trial court's conclusion that here the statement was voluntary. Notwithstanding the circumstances, at the time defendant gave the statement, he still wanted to talk to the police. The decision to admit the statement was not clearly erroneous.
Affirmed.