People v. Crusoe

Cavanagh, J.

(dissenting). Defendant invoked both his Sixth Amendment and Fifth Amendment rights to the assistance of counsel when he requested appointment of counsel at his arraignment on unrelated charges prior to being questioned by the authorities. Therefore, under Edwards v Arizona, 451 US 477 ; 101 S Ct 1880 ; 68 L Ed 2d 378 (1981), and People v Paintman, 412 Mich 518 ; 315 NW2d 418 (1982), cert den 456 US 995 (1982), which prohibit police-initiated interrogation after *698 a suspect has invoked his right under the Fifth Amendment to the assistance of counsel, defendant’s statements are inadmissible.

i

We agree with the majority to limit the analysis in this case to the Fifth Amendment theory addressed by the Court of Appeals. 1

The precise question presented is whether defendant’s request for appointed counsel at arraignment was an invocation of his right to the assistance of counsel during custodial interrogation. If it was, then the rule in Edwards and Paintman, supra, may bar the use of his confession at trial. *699 This question has recently divided both the federal courts of appeals 2 and state courts. 3

A

Edwards, supra, pp 484-485 , held that a suspect who has

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.

Under this rule, a suspect’s waiver of Miranda rights at police-initiated custodial interrogation following his request for counsel at an earlier interrogation is not sufficient to demonstrate that this waiver of the Fifth Amendment right to re *700 main silent was voluntary. The Supreme Court, in its most recent decision in this area, Arizona v Roberson, 486 US 675, 680-682 ; 108 S Ct 2093 ; 100 L Ed 2d 704 (1988), explained the purpose of the Edwards rule:

[T]he prophylactic protections that the Miranda warnings provide to counteract the "inherently compelling pressures” of custodial interrogation and to "permit a full opportunity to exercise the privilege against self-incrimination,” 384 US at 467, 86 S Ct at 1624, are implemented by the application of the Edwards corollary that if a suspect believes that he is not capable of undergoing such questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the "inherently compelling pressures” and not the purely voluntary choice of the suspect. As Justice White has explained, "the accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities’ insistence to make a statement without counsel’s presence may properly be viewed with skepticism.” Michigan v Mosley, 423 US 96, 110, n 2 ; 96 S Ct 321 ; 46 L Ed 2d 313 (1975) (concurring in result).

In Roberson , the Court held that the Edwards rule applied even when the crime investigated in the subsequent police-initiated interrogation was unrelated to the crime investigated at the interrogation in which the suspect requested counsel. The Court rejected the view "that fresh sets of Miranda warnings will 'reassure’ a suspect who has been denied the counsel he has clearly requested that his rights have remained untrammeled.” Roberson, supra, p 686 .

Roberson and Edwards clearly hold that in order to insure that a suspect’s waiver of his Fifth *701 Amendment right to remain silent is voluntary and not coerced, courts may suppress any statement obtained during uncounseled, police-initiated questioning if the suspect requested counsel at a preceding interrogation. The Court, however, has not yet ruled whether or not the same protection is required when the suspect’s request for counsel occurs not during a preceding custodial interrogation, but during a preceding arraignment on another charge.

B

The Supreme Court declined to comment on this question in Michigan v Jackson, supra, which affirmed our decision in People v Bladel, supra. In Bladel, each defendant had requested counsel at his arraignment, but was later interrogated about the crime charged. During interrogation, each defendant waived his Miranda rights and then incriminated himself. Both defendants argued that their postarraignment statements were obtained in violation of their Fifth and Sixth Amendment rights to counsel because each had previously asked the arraigning magistrate for appointed counsel. Id., p 50.

We held in Bladel that the defendants’ Fifth Amendment right to counsel was not "implicated.” We reasoned:

Although defendants were in custody at the time of their arraignments, they were not subjected to interrogation. In addition, they did not specifically request counsel for any subsequent custodial interrogations which might be conducted. Defendants requested appointed counsel because they were financially incapable of retaining an attorney and were unwilling to represent themselves. See State v Sparklin, 296 Or 85 , [90-91]; 672 P2d 1182, 1185-1186 (1983).

*702 The trial courts found that defendants never invoked their Fifth Amendment right to counsel before or during their post-arraignment interrogations. Furthermore, defendants knowingly and voluntarily waived their Miranda rights prior to their statements. Our independent review of the record does not disclose that these findings are clearly erroneous. [Bladel, supra, pp 52-53.]

Regarding the defendants’ Sixth Amendment claims, however, we held in Bladel that each defendant’s Miranda waiver was inadequate to ensure a valid waiver of the Sixth Amendment right to counsel. Reviewing our decision, the United States Supreme Court agreed with our Sixth Amendment analysis. Jackson, supra, pp 629-636. The Court, however, expressly declined to "comment on the validity of” our Fifth Amendment analysis that found that " 'defendants’ request to the arraigning magistrate for appointment of counsel implicated only their Sixth Amendment right to counsel, . . . because the request was not made during custodial interrogation.” Jackson, supra, p 630, n 4.

This case requires us to reevaluate the analysis in Bladel on which the United States Supreme Court refused comment. We do not feel bound today by the two-paragraph Fifth Amendment analysis in Bladel. The Fifth Amendment analysis was not determinative of the disposition of either case considered in Bladel. We resolved defendants’ right to counsel challenges under the Sixth Amendment because the statements each defendant sought to suppress concerned the same charge on which each defendant was arraigned. More importantly, BladeFs Fifth Amendment analysis is inconsistent with other portions of that opinion expressly endorsed by the Supreme Court *703 in Jackson, and with other reasoning in the Jackson and Roberson decisions.

c

1

A suspect’s request for an attorney during custodial interrogation demonstrates that the suspect wants a lawyer to help him deal with police questions. The request triggers the waiver protections of Edwards . A suspect’s expression of the same desire in contexts other than custodial interrogation, at arraignment for instance, deserves the same respect.

Plaintiff argues that a defendant requesting counsel at arraignment does not express a need for help with questioning, but instead seeks legal assistance only "to help him with the adversary proceedings on the charged offense.” Plaintiff asks this Court to conclude first, that at the time defendant requested counsel at arraignment, he wanted counsel only to help him with the charges on which he was arraigned and second, that defendant wanted assistance only with "adversary proceedings” and not with custodial interrogation.

Although reading the mind of any defendant is admittedly a difficult task, the Supreme Court’s recent decisions offer some guidance. In Roberson, supra, p 684 , the Court wrote:

Roberson’s unwillingness to answer any questions without the advice of counsel, without limiting his request for counsel, indicated that he did not feel sufficiently comfortable with the pressures of custodial interrogation to answer questions without an attorney. This discomfort is precisely the state of mind that Edwards presumes to persist unless the suspect himself initiates further *704 conversation about the investigation; unless he otherwise states, see Connecticut v Barrett [ 479 US 523 ; 107 S Ct 828 ; 93 L Ed 2d 920 (1987)], there is no reason to assume that a suspect’s state of mind is in any way investigation-specific, see Colorado v Spring [ 479 US 564 ; 107 S Ct 851 ; 93 L Ed 2d 954 (1987)].

Roberson undermines plaintiff’s argument that we must find that when defendant requested counsel at his arraignment on the assault and breaking and entering charges he desired legal assistance on those charges alone. Indeed, when defendant requested counsel at his arraignment on the assault and breaking and entering charges, he had already been questioned about the robbery. As in Roberson , "there is no reason” in this case "to assume that [defendant’s] state of mind [was] in any way investigation-specific.” Id., p 684. 4

The Court’s decision in Jackson undermines plaintiff’s other contention — that defendant’s arraignment request did not evince a desire for legal assistance at subsequent custodial interrogations. In Jackson, supra, pp 632-633, the Court specifically rejected the almost identical claim that a defendant who requests counsel at arraignment does not intend his request to encompass representation during later interrogation, stating:

The State also relies on the factual differences between a request for counsel during custodial interrogation and a request for counsel at an arraignment. The State maintains that respondents may not have actually intended their re *705 quest for counsel to encompass representation during any further questioning by the police. This argument, however, must be considered against the backdrop of our standard for assessing waivers of constitutional rights. Almost a half century ago, in Johnson v Zerbst, 304 US 458 [ 58 S Ct 1019 ; 82 L Ed 1461 ] (1938), a case involving an alleged waiver of a defendant’s Sixth Amendment right to counsel, the Court explained that we should "indulge every reasonable presumption against waiver of fundamental constitutional rights.” Id. at 464. For that reason, it is the State that has the burden of establishing a valid waiver. Brewer v Williams, 430 US [387, 404; 97 S Ct 1232 ; 51 L Ed 2d 424 (1977)]. Doubts must be resolved in favor of protecting the constitutional claim. This settled approach to questions of waiver requires us to give a broad, rather than a narrow, interpretation to a defendant’s request for counsel — we presume that the defendant requests the lawyer’s services at every critical stage of the prosecution. We thus reject the State’s suggestion that respondents’ requests for the appointment of counsel should be construed to apply only to representation in formal legal proceedings.

The Court expressly agreed with our "comments” in Bladel concerning "the nature of an accused’s request for counsel”:

"Although judges and lawyers may understand and appreciate the subtle distinctions between the Fifth and Sixth Amendment rights to counsel, the average person does not. When an accused requests an attorney, either before a police officer or a magistrate, he does not know which constitutional right he is invoking; he therefore should not be expected to articulate exactly why or for what purposes he is seeking counsel. It makes little sense to afford relief from further interrogation to a defendant who asks a police officer for an attorney, but permit further interrogation to a defendant who makes an identical request to a judge. *706 The simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly.” [Jackson, supra, pp 633-634, n 7 (quoting Bladel, supra, pp 63-64). Emphasis added.]

In light of Jackson and Roberson , we conclude that when defendant requested counsel at his arraignment, he felt that he was not "sufficiently capable of dealing with his adversaries singlehandedly.” His request expressed a desire for a lawyer’s help, not just with formal legal proceedings, but with all subsequent adversarial confrontations, including custodial interrogation. His request was as effective an invocation of his Fifth Amendment right to counsel as a request to a police officer during interrogation would have been. 5

2

Plaintiff argues its position is supported by language in Maine v Moulton, 474 US 159, 179-180 ; 106 S Ct 477 ; 88 L Ed 2d 481 (1985). Moulton does not control the decision in this case. First, Moulton was a Sixth Amendment case and did not consider directly the Fifth Amendment issue presented here. See Roberson, supra, pp 684-685 (rejecting Moulton as authority in the Fifth Amendment context). Second, the Court in Moulton was discussing suppression of statements "simply because other charges were pending at the time," id., p 180. It did not address suppression due to a prior, and, at the time of the interrogation, still unful *707 filled, 6 request for counsel made at arraignment. 7 Finally, the Court’s analysis in the later cases of Jackson and Roberson has replaced the Moulton dicta on the issue before us.

3

Plaintiff also argues that application of the Edwards rule to this situation "severely hampers ongoing investigations by police officers as to unrelated charges.” "[T]he police will simply be unable to approach one who is in custody on a charged offense and who has requested or has counsel at arraignment.” Policy arguments predicting crippling effects on effective law enforcement have invariably been advanced in cases following Miranda, and have generally been rejected. Most recently, in Roberson, supra, pp 688-689 , the Court was unswayed by the dissenters’ contention that the Court’s ruling

will in many instances deprive our nationwide law enforcement network of a legitimate investigative technique now routinely used to resolve major crimes.

It is a frequent occurrence that the suspect is wanted for questioning with respect to crimes unrelated to the one for which he has been appre *708 hended. The rule announced today will bar law enforcement officials, even those from some other city or other jurisdiction, from questioning a suspect about an unrelated matter if he is in custody and has requested counsel to assist in answering questions put to him about the crime for which he was arrested. [Kennedy, J., dissenting.]

Like the Court in Roberson, supra, pp 681-682 , we find that a bright-line rule would have

"the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible. This gain in specificity, which benefits the accused and the State alike, has been thought to outweigh the burdens that the decision in Miranda imposes on law enforcement agencies and the courts by requiring the suppression of trustworthy and highly probative evidence even though the confession might be voluntary under traditional Fifth Amendment analysis.” [Quoting Fare v Michael C, 442 US 718 .]

Contrary to plaintiff’s contentions, suspects remain free to give statements to the police after requesting counsel at an arraignment. "[A]ny 'further communications, exchanges, or conversations with the police’ that the suspect himself initiates, . . . are perfectly valid.” Roberson, supra, p 687 . 8

ii

We agree with the Court of Appeals that defen *709 dant’s statements should have been suppressed 9 and would affirm the judgment of the Court of Appeals.

Levin and Archer, JJ., concurred with Cavanagh, J.

Defendant does not continue to argue in this Court that he invoked his right to silence during the first interrogation, or that his statements were the product of police trickery. Therefore, we do not reach whether or not the trial court’s rulings concerning these separate Fifth Amendment claims were erroneous.

It is also unnecessary to review the trial court’s decision that no Sixth Amendment violation occurred. We agree with the trial court that no Sixth Amendment right to counsel had yet attached on the robbery charge at the time of either interrogation. See People v Bladel (After Remand), 421 Mich 39, 51-52 , (Sixth Amendment right to counsel attaches "only at or after the initiation of adversary judicial proceedings against the accused”). However, we observe that New York has adopted the rule that once a defendant requests the assistance of counsel on one charge, defendant’s Sixth Amendment right to counsel on that charge can only be adequately protected by suppressing all uncounseled statements taken at subsequent police-initiated custodial interrogation on any crime. See People v Rogers, 48 NY2d 167 ; 422 NYS2d 18 ; 397 NE2d 709 (1979); People v Bartolomeo, 53 NY2d 225 ; 440 NYS2d 894 ; 423 NE2d 371 (1981); People v Robles, 72 NY2d 689 ; 536 NYS2d 401 ; 533 NE2d 240 (1988); note, Prior representation and the duty to inquire: Breaching New York’s ”Once-an-Attorney” rule, 10 Cardozo LR 259 (1988). Defendant argued in the trial court that Michigan should follow this New York rule. There can be little doubt that in the real world of multiple charging, habitualization of offenses, and plea bargaining, "unrelated” offenses significantly affect the ultimate disposition of the custodial charge. However, because the grant order is limited, this Sixth Amendment theory was not briefed or argued in this Court, and we express no opinion about the New York rule.

Compare United States v Roberts, 869 F2d 70, 74 (CA 2, 1989), with United States ex rel Espinoza v Fairman, 813 F2d 117 (CA 7, 1987), cert den 483 US 1010 (1987), and United States v Wolf, 879 F2d 1320 (CA 6, 1989) (Fifth Amendment right invoked at arraignment on separate charge). See also Butler v Aiken, 864 F2d 245 (CA 4, 1988) (assuming Fifth Amendment right invoked at arraignment on separate charge), cert gtd sub nom Butler v McKellar, 490 US —; 109 S Ct 1952 ; 104 L Ed 2d 422 (1989).

The following courts have held or suggested that an arraignment request for counsel does not invoke a defendant’s Fifth Amendment entitlement to counsel: State v Stewart, 113 Wash 2d 462; 780 P2d 844 (1989); State v Hitch, 772 P2d 1150, 1154 (Ariz App, 1989); Miller v State, 403 So 2d 1017, 1019 (Fla App, 1981) (dicta); People v Hicks, 179 Ill App 3d 468; 128 Ill Dec 448; 534 NE2d 630 (1989) (dicta); State v Sparklin, 61 Or App 608 ; 658 P2d 571 (1983).

The following courts have disagreed: State v Preston, 150 Vt 511; 555 A2d 360 (1988); Sutherland v State, 299 Ark 86 ; 771 SW2d 264 (1989).

See also Alston v State, 554 A2d 304, 310 (Del, 1989), cert den 490 US —; 109 S Ct 2455 ; 104 L Ed 2d 1009 (1989) (a defendant may invoke the right at an arraignment, but did not invoke right by filling out request for counsel form available to warden but not police); Higginbotham v State, 769 SW2d 265 (Tex App, 1989) (precharge request for counsel to a magistrate invokes Fifth Amendment right to counsel).

The majority’s reliance on Connecticut v Barrett, supra, is misplaced. Our interpretation of defendant’s request for appointed counsel does not "disregard . . . the ordinary meaning” of his request. Id., p 530. An examination of the record here does not support the majority’s conclusion that defendant’s request for counsel was limited to particular charges. Ante, p 696. See Wolf, n 2 supra.

See also Johnson v Virginia, 454 US 920, 922-923 ; 102 S Ct 422 ; 70 L Ed 2d 231 (1981) (Marshall, J., dissenting from denial of certiorari); Tomkovicz, Standards for invocation and waiver of counsel in confession contents, 71 Iowa L R 975, 1012-1015 (1986).

One agent later testified that she began the interview by asking the defendant if he had an attorney and that he told her "he thought they were going to be appointing counsel for him.” She then asked if defendant had met with an attorney yet and he answered that he had not. The agent read defendant his Miranda rights. Defendant then signed a standard waiver form and made incriminating statements linking himself to the robbery.

This case does not present the question whether acceptance of appointed counsel is the equivalent of requesting appointed counsel in this context. See, e.g., Espinoza, supra, p 123, n 4 (acceptance of counsel is sufficient); Dew v United States, 558 A2d 1112, 1116 (DC App, 1989) (appointment of counsel is equivalent to a request for counsel under Jackson).

See, e.g., Kight v State, 512 So 2d 922, 926 (Fla, 1987) ("Even if we were to adopt the seventh circuit’s holding in Espinoza, there was no Edwards violation in this case because it was Right who initiated the conversations . . . .”), cert den 485 US 929 ; 108 S Ct 1100 ; 99 L Ed 2d 262 (1988).

Plaintiff does not argue that the admission of defendant’s statements was harmless error.