# People v. Kowalski > Michigan Court of Appeals · September 29, 1998 · 230 Mich. App. 464 URL: https://www.frixlaw.com/law-library/cases/9574984 ## Case - **Full name:** People v. Kowalski - **Court:** Michigan Court of Appeals - **Decided:** September 29, 1998 - **Citations:** 230 Mich. App. 464; 584 N.W.2d 613 - **Precedential status:** Published - **Opinion:** Concurrence by Corrigan - **Judges:** Corrigan, Grifíin, Hoekstra - **Cited by:** 31 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9574984 ## How later opinions describe it (automated extraction) - holding that the “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” - holding that informing the defendant that his accomplice had given a statement and inquiring whether the defendant still wanted an attorney did not constitute “interrogation” ## Opinion text Corrigan, C.J. (concurring). I part company with the majority because I believe the police interrogation violated Edwards 1 prohibition against further police-initiated interrogation, if defendant is entitled to the retroactive application of Edwards. I would not, however, apply Edwards retroactively to this case because it should not be considered as on direct review. I would affirm the result below on the ground that the trial court correctly concluded that defendant abandoned his original motion for a new trial. Having made this determination, the trial court need not have reached the substantive issues. Defendant should *485 have been relegated to the remedies available under MCR 6.500 et seq. i Unlike the majority, I find it necessary to reach the abandonment issue. I would hold that the trial court correctly concluded that defendant abandoned his motion for a new trial. The record reflects that the trial judge, Oakland Circuit Judge John N. O’Brien, entered the judgment of conviction on January 22, 1976. Judge O’Brien appointed appellate counsel for defendant five days later. Counsel then timely filed a motion for a new trial on March 11, 1976, and noticed it for hearing on March 24, 1976. The court thereafter adjourned the hearing without setting a new hearing date. On January 18, 1977, the court reporter filed the transcripts of the suppression hearing. On March 3, 1977, the clerk transmitted the lower court file to this Court for use with codefendant Sands’ appeal. This Court returned the file to the circuit court approximately six months later, and the clerk notified defense counsel of that action in a letter dated September 27, 1977. The record reflects that defendant made no attempt whatsoever to pursue his motion for a new trial during the next fifteen years. Defendant eventually moved for appointment of new appellate counsel in March 1992. Defendant asserted in a letter that he had contacted the court and his original counsel several times during the 1970s and 1980s regarding his motion and appeal. Nevertheless, on March 5, 1992, Judge O’Brien dispensed with oral argument and denied the motion for lack of merit because he had appointed counsel for defendant in 1976. The Chief *486 Judge of the Oakland Circuit Court, however, acting almost contemporaneously, appointed the State Appellate Defender Office (SADO) as counsel for defendant on March 3, 1992. Two years later, in April 1994, defense counsel filed a “supplemental” brief in support of defendant’s motion for a new trial, explaining that his difficulty in locating the transcripts of the trial and other records caused the delay in preparing the brief. Counsel did not move for an evidentiary hearing to provide support for defendant’s allegation that original appellate counsel neglected this matter. Thus, the record contains no evidence to support this assertion because defendant’s letter is not a sworn affidavit. MCR 2.119(B)(1), 2.611(D)(1), 6.001(D). Defense counsel’s representations regarding defendant and original appellate counsel do not support a motion for a new trial even if contained in an affidavit because counsel cannot testify competently to those facts. MCR 2.119(B)(1)(c). Then Oakland Circuit Chief Judge Hilda Gage heard defendant’s motion in December 1994, because Judge O’Brien had died during the interim. Judge Gage issued her opinion on August 24, 1995. In all, over nineteen years had elapsed since defendant’s conviction. Judge Gage initially opined that defendant had abandoned his motion for a new trial. This holding was correct. Generally, a party may abandon a motion by failing to proceed with respect to it. 60 CJS, Motions & Orders, § 42, p 63. In this case, although defendant timely filed and noticed his motion for a new trial within sixty days of the order appointing appellate counsel, GCR 1963, 803.1, he *487 failed to fulfill his obligation to call the motion to the court’s attention. 2 Forest v Parmalee (On Rehearing), 60 Mich App 401, 405 ; 231 NW2d 378 (1975), aff’d 402 Mich 348 ; 262 NW2d 653 (1978). The trial court must ordinarily preside over a hearing on a motion for a new trial. 8A Michigan Law & Practice, Criminal Law, § 570, p 241. “A motion for a new trial is a court proceeding, and may, after due notice, be heard at any time when the court is in session.” People v Sanford, 252 Mich 240, 246 ; 233 NW 192 (1930). Here, the trial court never presided over a hearing on the motion, nor did it take the motion under advisement by adjourning the hearing. 3 The parties were apparently waiting for this Court’s decision in codefendant Sands’ appeal challenging the admissibility of his confession on grounds that the police allegedly lacked probable cause to arrest him and defendant Kowalski. Defendant failed to renotice his motion for a new trial after this Court affirmed the trial court’s decision in codefendant’s appeal. People v Sands, 82 Mich App 25, 34-35 ; 266 NW2d 652 (1978). Therefore, defendant mistakenly argues that his motion remained pending *488 before the trial court. In fact, the motion was never submitted for decision. Further, when a trial court fails to rule on a motion, an appellate court presumes that the movant has abandoned the motion unless the circumstances indicate otherwise. People v Kelly, 237 Ill App 3d 829, 831; 178 Ill Dec 528; 604 NE2d 1051 (1992). The instant case does not rebut this presumption because defendant provided no evidentiary support whatsoever for his allegation that his original appellate counsel neglected this matter. Generally, the appellant bears the burden of both laying an evidentiary foundation to support his request for a new trial and furnishing this Court with a record that supports any argument for reversal. Petraszewsky v Keeth (On Remand), 201 Mich App 535, 540 ; 506 NW2d 890 (1993); Lemanski v Ford Motor Co, 82 Mich App 244, 251-252 ; 266 NW2d 775 (1978). Moreover, the defendant must create a testimonial record to support his claim of ineffective assistance of counsel unless the record already contains sufficient detail to support it. People v Dixon, 217 Mich App 400, 408 ; 552 NW2d 663 (1996). Where the defendant fails to request an evidentiary hearing and the record does not support his claim, this Court will not conclude that he was denied effective assistance of counsel. See People v Harris, 201 Mich App 147, 154 ; 505 NW2d 889 (1993). Here, defendant most likely elected not to pursue his motion after learning of this Court’s decision to affirm codefendanfs conviction. Defendant had more than two years after the appointment of well-qualified SADO counsel to develop a record to support his assertion to the contrary. During that time, however, defendant never moved for an evidentiary hearing alleging *489 incompetence of counsel. I would, therefore, affirm Judge Gage’s proper conclusion that defendant abandoned his original motion for a new trial. n I agree with the majority that the trial court did not err in admitting defendant’s confession under the controlling law at the time of defendant’s suppression hearing and trial. This case is virtually identical to Hill v Whealon, 490 F2d 629 (CA 6, 1974), in which the Sixth Circuit Court of Appeals declined to construe Miranda 4 as creating a proscription on further interrogation after a suspect invokes his right to counsel. The court determined that Miranda requires interrogation to cease until the interrogator provides new and adequate warnings and a reasonable basis exists for inferring that the suspect has voluntarily changed his mind. Hill, supra at 635. Hill and the instant case involve defendants who elected to resume speaking with the police only after an officer advised them that a codefendant had made a statement. Under the construction of Miranda adopted in Hill, I agree with the majority that the prosecution demonstrated that the police effectively advised defendant of his rights and he knowingly and voluntarily declined to exercise them. The majority also concludes that, assuming that Edwards applies to this case, Edwards does not mandate a different result. The majority operates under a faulty assumption. My conclusion that defendant abandoned his motion for a new trial disposes of the question whether Edwards applies to this case. In *490 Shea v Louisiana, 470 US 51 ; 105 S Ct 1065 ; 84 L Ed 2d 38 (1985), the United States Supreme Court considered the retroactivity of Edwards, supra, and held that its decision applied to cases pending on “direct review” when it rendered that decision. Thus, Edwards applies to those defendants whose convictions were not yet final when the Court issued its opinion. For purposes of retroactive application of a decision, a conviction is “final” under the following circumstances: [A] judgment of a conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied. [Griffith v Kentucky, 479 US 314, n 6, 321 ; 107 S Ct 708 ; 93 L Ed 2d 649 (1987).] Accordingly, the determination whether Edwards applies under the circumstances of this case turns on whether defendant’s motion for a new trial was still pending when the Court decided Edwards. That issue, in turn, hinges on whether defendant abandoned his original motion for a new trial. The record reveals that defendant abandoned his motion for a new trial and did not pursue his appeal of right during 1977 and 1978. Hence, Edwards does not apply because defendant’s conviction became final at least three years before the Supreme Court rendered its decision. I would therefore affirm the trial court’s decision to deny defendant’s motion for a new trial. I cannot, however, join the majority’s conclusion that Edwards does not mandate a different result than that reached under Hill, supra. I would hold that if Edwards applies to this case, defendant’s confession must be suppressed because the police vio *491 lated his prophylactic right to counsel under Miranda. In Edwards, the Supreme Court promulgated additional safeguards to protect the right to counsel under Miranda. The Court held that the authorities may not interrogate a suspect who asserts his right to counsel until counsel has been made available to him, “unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards, supra at 485. Once invoked, a valid waiver of the right to counsel “cannot be established by showing only that [the suspect] responded to farther police-initiated custodial interrogation even if he has been advised of his rights.” Id. at 484. Accordingly, assuming Edwards applies, the question is whether Detective Lister’s statements to defendant constituted “interrogation.” If they did, the police violated the Edwards rule. The Supreme Court defined “interrogation” for purposes of Miranda one year before it issued its opinion in Edwards: [T]he term “interrogation” under Miranda refers not only to express questioning, but also to 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. [Rhode Island v Innis, 446 US 291, 301 ; 100 S Ct 1682 ; 64 L Ed 2d 297 (1980).] Contrary to the majority, I would hold that Detective Lister’s act of informing defendant that codefendant Sands had made a statement and inquiring whether defendant “would still like to talk to an attorney” constituted interrogation. Detective Lister should have known that his words were reasonably likely to elicit *492 an incriininating response. 5 The extensive authority *493 relied on by the majority does not control here. The flaw in the majority’s analysis stems in part from treating Detective Lister’s remark and question in isolation rather than as contemporaneous, sequential statements. Viewed together, Detective Lister’s remark and question subjected defendant to “interrogation” under Innis, supra. The Supreme Judicial Court of Massachusetts considered police conduct similar to that involved in the instant case in Commonwealth v Brant, 380 Mass 876; 406 NE2d 1021 (1980). In Brant , Florida police officers arrested the defendant and his codefendant after a high-speed chase involving the exchange of gunfire. Eight days later, an assistant prosecutor from Massachusetts contacted a deputy sheriff in Florida to request an interview with the defendant and his codefendant regarding a robbery that had occurred two months earlier. The deputy sheriff then interviewed the codefendant, eventually obtaining an incriminating statement regarding the robbery. The deputy sheriff reported the codefendant’s confession to the Massachusetts authorities and, a few days later, the Massachusetts assistant district attorney and two detectives flew to Florida. The codefendant subsequently signed a written transcription of his oral statement. The defendant and codefendant were then arraigned on charges arising from the Florida incident. After arraignment, the deputy sheriff and the Massachusetts authorities sought to question the *494 defendant and his codefendant regarding the Massachusetts crime. Defendant unequivocally asserted his right to counsel, whereupon one of the Massachusetts authorities interjected that the codefendant had made a statement. The deputy sheriff confirmed the existence of the statement. After privately conversing with his codefendant, the defendant informed the authorities that he desired to make a statement. He then incriminated himself in response to questioning by the deputy sheriff. In Brant , the Supreme Judicial Court of Massachusetts reversed the trial court’s denial of the defendant’s motion to suppress. Although the Massachusetts court decided Brant before the United States Supreme Court’s decision in Edwards, its application of Miranda is consistent with Edwards. The court construed Miranda as requiring that when a suspect states that he desires an attorney, the police must cease interrogating the suspect until an attorney is present. Brant, supra at 882 . The court explained: Not all statements obtained by the police after a person has been taken into custody are to be considered the product of interrogation. “Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.” [Miranda, supra at 478.] A “compelling influence” is not necessarily in the form of express questions. The inquiry here is whether the authorities used any words or actions, other than those normally attendant to arrest and custody, that they should have known were reasonably likely to elicit an incriminatory response from the suspect. [Innis, supra at 301 .] The test is an objective one. [Id. at 883.] Applying the Innis definition of “interrogation,” the court determined that the defendant was interrogated *495 in violation of Miranda when, after he asserted his right to counsel, the authorities informed him that his codefendant had made a statement. Id. Similarly, Detective Lister’s statement to defendant that codefendant Sands had given a statement, followed by his inquiry whether defendant still desired counsel, constituted interrogation under Innis . Detective Lister’s action in informing defendant of Sands’ statement cannot be deemed conduct relating to the routine incidents of arrest and custody. Innis, supra at 301 ; Oregon v Bradshaw, 462 US 1039, 1045 ; 103 S Ct 2830 ; 77 L Ed 2d 405 (1983). It comes as no surprise that defendant reconsidered his decision not to speak with authorities upon learning that Sands had given a statement about the robbery. Although not dispositive, Detective Lister unquestionably intended this result. No other reason exists for informing defendant of Sands’ action. Therefore, if Edwards applies to this case, the trial court erred in not suppressing defendant’s inculpatory statement because Detective Lister should have known that his words were reasonably likely to elicit an incriminating response from defendant. The intricate dance exemplified in the majority opinion reflects the struggle of state courts to respond to Supreme Court decisions of questionable legitimacy. In my view, the Supreme Court in Miranda and again in Edwards improperly thrust prophylactic rules on the state courts, exercising supervisory powers it does not possess over general issues of state criminal procedure. Connecticut v Barrett, 479 US 523, 528 ; 107 S Ct 828 ; 93 L Ed 2d 920 (1987). It is beyond peradventure that defendant Kowalski’s confession was voluntary; it was not even *496 arguably the product of compelled self-incrimination. The instant case, therefore, aptly demonstrates the prophylactic nature of the Miranda and Edwards rules, because Miranda rules were violated without violating the constitution. New York v Quarles, 467 US 649, 654-655 ; 104 S Ct 2626 ; 81 L Ed 2d 550 (1984). The legitimacy of these rules depends on the existence of either Supreme Court authority to legislate rules that go beyond constitutional requirements or supervisory authority over state courts. Grano, Confessions, Truth, and the Law (Ann Arbor: The University of Michigan Press, 1993), pp 173-198. Neither the Fifth nor the Fourteenth Amendment grants the Supreme Court the power to legislate prophylactic rules for state courts. The Court itself recognized this principle of federalism long ago, rejecting the notion that the grant of jurisdiction authorizes the federal court to promulgate a federal general common law. Erie R Co v Tompkins, 304 US 64, 78 ; 58 S Ct 817 ; 82 L Ed 1188 (1938). In the absence of lawmaking power, the Supreme Court’s authority to establish prophylactic rules must rest on the existence of supervisory power over state judicial proceedings. The Supreme Court has held that it has no such supervisory power absent a constitutional violation. Smith v Phillips, 455 US 209, 221 ; 102 S Ct 940 ; 71 L Ed 2d 78 (1982). Accordingly, its decision in Edwards is illegitimate. Grano, pp 173-198. It comes as no surprise, then, that state courts struggle to avoid the effect of prophylactic rules when no true Fifth Amendment violation exists. The instant case exemplifies the perverse results that follow from applying a prophylactic rule — a correct *497 application of Edwards would require the suppression of a voluntary statement that not even defendant maintains was obtained in violation of his Fifth Amendment protection against compulsory self-incrimination. The majority has responded to this unjust result by drawing unconvincing distinctions to avoid the reach of Edwards. I cannot join the majority’s effort to avoid the consequences of the Supreme Court’s decision in Edwards, but I question the United States Supreme Court’s underlying authority to dictate this result. Edwards v Arizona, 451 US 477 ; 101 S Ct 1880 ; 68 L Ed 2d 378 (1981). In 1976, the court rules did not require that the court decide a motion for a new trial upon its mere filing. See GCR 1963, 527. By contrast, the present court rules provide that the “trial court shall hear and decide the motion within 28 days of filing,” when a defendant files the motion within 56 days after commencement of the period for filing his brief in this Court. MCR 7.208(B)(3). In Forest, supra at 403, this Court quoted 2A CJS, Advisement, p 130, regarding the significance of the court’s action in taking a motion under advisement: “Consideration; consultation; deliberation; the act of a judge or justice in taking time to consider his judgment before rendering the same; the consultation of the court after argument by counsel, and before delivering the opinion.” Miranda v Arizona, 384 US 436 ; 86 S Ct 1602 ; 16 L Ed 2d 694 (1966). Detective lister testified that he ceased questioning defendant when defendant initially asserted his right to counsel. He stated that approximately an hour and a half later he approached defendant in the area where defendant was being confined. He described his exchange with defendant as follows: Q. [by the prosecutor] Did you have an opportunity to speak to Mr. Kowalski again at sometime shortly before 3:40 p.m. or shortly before that? A. Yes. I went into the Fire Chief’s office and advised Mr. Kowalski that we had received a statement of what had transpired earlier and asked him if he would still like to talk to an attorney? Q. Did you tell him who you received that statement from? A. Yes, sir. Q. Who was that? A. From Ronnie Sands. Q. Okay. And what did Mr. Kowalski say to you? A. He said if Ron didn’t want an attorney, neither did he and he would make a statement. The Court: When you went back to Mr. Kowalski with the news of what Mr. Sands had done what did you say? [Defense Counsel]: Yes, pardon me. Q. [By Defense Counsel]: Yes, correct me if I am wrong, but is it not true, when you went back to Mr. Kowalski and indicated Mr. Sands had given a statement about his participation in the crime and waived his rights, then Mr. Kowalski said — if Sands doesn’t want to speak to an attorney, neither do I. Now is that true or not true? A. That’s basically what I said. Q. Did you indicate to Mr. Kowalski what the effect of Mr. Sands’ statement to the police and the Prosecutor would be at that time, that is prior to Mr. Kowalski giving his second statement? A. You mean did I tell Kowalski what Sands had said? Q. When you went back and talked to him after Saifds had indicated he wanted to give a statement, at that point, when Mr. Kowalski said — since Sands doesn’t want to speak to an attorney, neither do I, prior to that, did you indicate to him in any manner what the effect of Sands’ statement might have on his case? A. No, I don’t think I did. *493 The Court: Did you tell him anything about the substance of what Sands had told you? Detective Lister: No, I don’t believe I said anything, I just asked him if he wanted to make a statement. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9574984. Public record. Not legal advice.