Petition for Writ of Certiorari — Michigan, Petitioner v. Mark David Woolley

Supreme Court briefJan 7, 2025

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No. 24In the

Supreme Court of the United States

THE PEOPLE OF THE STATE OF MICHIGAN,

Petitioner,

vs.

MARK DAVID WOOLLEY,

Respondent.

On Petition for a Writ of Certiorari

to the Michigan Court of A ppeals

PETITION FOR A WRIT OF CERTIORARI

Kym Worthy

Prosecuting Attorney

County of Wayne

Jon P. Wojtala

Chief, Research, Training, and Appeals

Timothy A. Baughman

Special Assistant Prosecuting Attorney

Lori Baughman Palmer

Counsel of Record

Assistant Prosecuting Attorney

5301 Russell Street, Second Floor

Detroit, MI 48211

lpalmer@waynecountymi.gov

(313) 202-7113

120211

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

The Fifth Amendment protects citizens against

compulsory self-incrimination in criminal cases. Miranda

creates an irrebuttable presumption—which is simply a

rule of law—that any statement given after a defective

Miranda warning or the unequivocal assertion of a

Miranda “right” is involuntary when that is demonstrably

untrue; indeed, currently a voluntary though Mirandadefective statement is admissible for impeachment

purposes.

The question presented is:

Because the Fifth Amendment concerns voluntariness,

whether Miranda should at the least be modified to an

adjudicatory device rather than a rule of law so that a

failure of some sort with regard to Miranda creates

a rebuttable presumption of involuntariness, allowing

admission of the statement if it is demonstrated to be

voluntary; that is, not taken in violation of the actual Fifth

Amendment.

II.

Respondent while in custody and after Miranda

warnings and agreeing to take a polygraph, asked a

detective to call his wife and said, “I’d also like to contact

my attorney, so he can arrange for whatever, kind of

thing.” The detective asked “Do you want your attorney,

then, before you take a polygraph?” and Respondent

replied “I want to ask him, like, you know, look, I’m being

honest, I’m being upfront, you know, you know, and now—I

will take a polygraph test, that’s not going to change

my mind.” Respondent expressed concern with how the

polygraph test would read given his level of anxiety, and

the detective briefly explained the polygraph procedure

before concluding the interview. The following morning,

after Respondent talked to an attorney, the detective

asked Respondent if he wanted to take the polygraph and

Respondent said he did. He was again given Miranda

warnings before and after the polygraph. The State court

held that Respondent had unequivocally asserted his

Miranda right to counsel.

The question presented is:

Whether a reference to counsel after Miranda

warnings for reasons unrelated to cutting off questions

is an “invocation” of the Miranda right to counsel, and

whether clarifying police questions concerning the taking

of a polygraph to which a reasonable person would not

expect an incriminating response constitute further

interrogation.

iii

PARTIES TO THE PROCEEDING

Petitioner is the State of Michigan. Respondent is

Mark David Woolley. No party is a corporation.

RELATED CASES

•

People v. Mark Woolley, No.376901, judgment

entered April 14, 2024.

•

People v. Mark Woolley, No. 167214, order

denying leave to appeal entered December 13,

2024.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . iii

RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . viii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . ix

PETITION FOR WRIT OF CERTIORARI TO

THE MICHIGAN COURT OF APPEALS . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2

Respondent’s Interviews and Statements . . . . . . . . . 2

The Trial Court’s Ruling . . . . . . . . . . . . . . . . . . . . . . . 6

The Court of Appeals Decision . . . . . . . . . . . . . . . . . . 8

Table of Contents

Page

REASONS FOR GRANTING THE WRIT . . . . . . . . . . 9

I. Because the Fifth Amendment concerns

voluntariness, the Court should grant

certiorari to determine whether Miranda

should at the least be modified to an

adjudicatory device rather than a rule of law

so that a failure of some sort with regard to

Miranda creates a rebuttable presumption

of involuntariness, allowing admission

of the statement if it is demonstrated

to be voluntary; that is, not taken in

violation of the actual Fifth Amendment . . . . . . 9

A. The Fifth Amendment in History . . . . . . . 10

B. The nonconstitutional basis of the

Miranda rules . . . . . . . . . . . . . . . . . . . . . . . 13

The right not to be compelled is

not a “right to silence” . . . . . . . . . . . . . 14

2. T he natu re of t he Mir an d a

requirements . . . . . . . . . . . . . . . . . . . . . 16

3. S u p p r e s s i o n o f v o l u n t a r y

statements and Miranda: The

impossibility of i r rebuttable

presumptions . . . . . . . . . . . . . . . . . . . . . 18

vii

Table of Contents

Page

4. Miranda violations as establishing

a rebuttable presumption of

involuntariness . . . . . . . . . . . . . . . . . . . 21

II. Certiorari should be granted to determine

whether a reference to counsel after

Miranda warnings for reasons unrelated

to cutting off questions is an “invocation” of

the Miranda right to counsel, and whether

clarifying questions concerning the taking

of a polygraph to which a reasonable person

would not expect an incriminating response

constitute further interrogation . . . . . . . . . . . . . 23

A. Respondent’s statements regarding an

attorney were ambiguous, equivocal,

and not responsive to Miranda warnings

in order to cut off questioning . . . . . . . . . . 23

B. Application of a Sixth Amendment

analysis to determine whether a

person reinitiated conversation with

the police is mistaken . . . . . . . . . . . . . . . . . . 26

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

viii

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

COURT OF A PPEALS OF MICHIGAN,

FILED APRIL 18, 2024 . . . . . . . . . . . . . . . . . . . . . . . 1a

A PPEN DI X B — OR DER OF T H E

S U PR EM E C OU RT OF M IC H IG A N,

FILED DECEMBER 13, 2024 . . . . . . . . . . . . . . . . 15a

A PPEN DI X C — EXCER P T S OF

E V I DEN T I A RY H E A R I NG I N T H E

CIRCUIT COURT FOR THE COUNT Y

OF WAY N E , CR I M I NA L DI V I SION,

STAT E OF M ICH IGA N, DAT ED

SEPTEMBER 1, 2023 . . . . . . . . . . . . . . . . . . . . . . . . 16a

TABLE OF CITED AUTHORITIES

Page

FEDERAL CASES

Arizona v. Roberson,

468 U.S. 675 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Burket v. Angelone,

208 F.3d 172 (CA 4 2000) . . . . . . . . . . . . . . . . . . . . . . 24

Colorado v. Connelly,

479 U.S. 157 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Connecticut v. Barrett,

479 U.S. 523 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Davis v. United States,

512 U.S. 452 (1994) . . . . . . . . . . . . . . . . . . . 8, 23, 24, 25

Dickerson v. United States,

530 U.S. 428 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Fleming v. Metrish,

556 F.3d 520 (CA 6, 2009) . . . . . . . . . . . . . . . . . . . . . . 29

Gamble v. United States,

587 U.S. 678 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Harris v. New York,

401 U.S. 222 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Maffie v. United States,

209 F.2d 225 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Cited Authorities

Page

McKinney v. Ludwick,

649 F.3d 484 (CA 6, 2011) . . . . . . . . . . . . . . . . . . . . . . 29

Michigan v. Mosley,

423 U.S. 96 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . 28, 30

Michigan v. Tucker,

417 U.S. 433 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Miranda v. Arizona,

384 U.S. 436 (1966) . . . 2, 3, 9, 10, 13, 16-19, 21-28, 30, 32

New Jersey v. Portash,

440 U.S. 450 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

New York v. Quarles,

467 U.S. 649 (1984) . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Oregon v. Elstad,

470 U.S. 298 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Pennsylvania v. Muniz,

496 U.S. 582 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Schneckloth v. Bustamonte,

412 U.S. 218 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Benton,

996 F.2d 642 (CA 3, 1993) . . . . . . . . . . . . . . . . . . . . . . 29

Cited Authorities

Page

United States v. Blake,

571 F.3d 331 (CA 4, 2009) . . . . . . . . . . . . . . . . . . . . . . 29

United States v. Hurst,

228 F.3d 751 (CA 6, 2000) . . . . . . . . . . . . . . . . . . . . . . 28

United States v. Jackson,

863 F.2d 1168 (CA 4, 1989) . . . . . . . . . . . . . . . . . . . . . 29

United States v. Murphy,

107 F.3d 1199 (CA 6, 1997) . . . . . . . . . . . . . . . . . . . . . 29

United States v. Payne,

954 F.2d 199 (CA 4, 1992) . . . . . . . . . . . . . . . . . . . . . . 29

Vega v. Tekoh,

597 U.S. 134 (2022) . . . . . . . . . . . . . . . 10, 13, 16, 17, 23

Wyrick v. Fields,

459 U.S. 42 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

STATE CASES

People v. Harrington,

258 Mich. App. 703 (2003) . . . . . . . . . . . . . . . . . . . . . 27

People v. Hicks,

185 Mich. App. 107 (1990) . . . . . . . . . . . . . . . . . . . . . . 31

People v. Kowalski,

230 Mich. 464 (1998) . . . . . . . . . . . . . . . . . . . . . . . 27, 28

xii

Cited Authorities

Page

People v. McCuaig,

126 Mich. App. 754 (1983) . . . . . . . . . . . . . . . . . . . . . . 28

People v. Raper,

222 Mich. App. 475 (2011) . . . . . . . . . . . . . . . . . . . . . . 28

People v. Ray,

431 Mich. 260 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . 31

People v. Tierney,

266 Mich. App. 687 (2005) . . . . . . . . . . . . . . . . . . . . . . 8

People v. Williams,

244 Mich. App. 533 (2001) . . . . . . . . . . . . . . . . . . . . . 27

People v. Williams,

470 Mich. 634 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 27

People v. Winsett,

606 N.E.2d 1186 (Ill. 1992) . . . . . . . . . . . . . . . . . . . . . 22

People v. Woolley,

No. 367901, 2024 WL. 1692953

(Mich. Ct. App. Apr.18, 2024), appeal denied,

No. 167214, 2024 WL 5104203

(Mich. Dec. 13, 2024) . . . . . . . . . . . . . . . . . . . . . . 7, 8, 27

xiii

Cited Authorities

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V . . . . . . . . . . 1, 9-15, 18, 19, 27, 31, 32

U.S. Const. amend. VI . . . . . . . . . . . . . . . . . . . . . . . . 26, 27

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . 2

U.S. Const. art. III, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 19

OTHER AUTHORITY

Albert Alschuler, “A Peculiar Privilege in Historical

Perspective: The Right to Remain Silent,”

94 Mich. L. Rev. 2625 (1994) . . . . . . . . . . . . . . . . . 12-15

Joseph D. Grano, Confessions, Truth, and the Law

(University of Michigan Press: 1993) . . . . . . . . . 9, 15

Joseph D. Grano, “Selling the Idea to Tell the Truth:

The Professional Interrogator and Modern

Confessions Law,” 84 Mich. L. Rev. 662 (1986) . . . . 16

Joseph D. Grano, “ P rophylactic Rules in

Criminal Procedure: A Question of Article III

Legitimacy,” 80 N.W. U. L. Rev. 100 (1985) . . . . 19, 20

Leonard Levy, The Origins of the Fifth Amendment

(2d Ed) (MacMillan: 1986) . . . . . . . . . . . . . . . . . . . . . 11

xiv

Cited Authorities

Page

McCormick, Evidence (4th Ed.) § 342 . . . . . . . . . . . . . . 20

Ralph Rossum, “‘Self-Incrimination’: The Original

Intent,” in Hickok, ed., The Bill of Rights:

Original Meaning and Current Understanding

(University of Virginia Press: 1991) . . . . . . . . . . 11, 12

Jo h n He n r y W i g m o r e , “ T h e P r i v i l e g e

Against Self-Incrimination: Its History,”

15 Harv. L. Rev. 610 (1902) . . . . . . . . . . . . . . . . . . . . 12

PETITION FOR WRIT OF CERTIORARI TO THE

MICHIGAN COURT OF APPEALS

The State of Michigan, by KYM L. WORTHY,

Prosecuting Attorney for the County of Wayne, JON P.

WOJTALA, Chief, Research, Training, and Appeals,

TIMOTHY A. BAUGHMAN, Special Assistant Prosecuting

Attorney, and LORI BAUGHMAN PALMER, assistant

prosecuting attorney, prays that a Writ of Certiorari issue

to review the judgment of the Michigan Court of Appeals

entered in this cause on April 18, 2024, leave to appeal denied

by the Michigan Supreme Court on December 13, 2024.

OPINIONS BELOW

The opinion of the Michigan Court of Appeals is

unreported, may be found at 2024 WL 1692953, and

appears as appendix A. The order of the Michigan

Supreme Court denying leave to appeal may be found at

2024 WL 5104203. and appears as Appendix B. The order

of the Michigan Circuit Court suppressing Respondent’s

statements appears as Appendix C.

STATEMENT OF JURISDICTION

The judgment of the Michigan Court of Appeals

was rendered April 18, 2024. This Court’s jurisdiction is

invoked under 28 USC §1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

T he Fi f th A mendment to the Un it ed St at es

Constitution provides in relevant part:

No person . . . shall be compelled in any criminal

case to be a witness against himself.

The Fourteenth Amendment to the United States

Constitution provides, in pertinent part:

No state shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

state deprive any person of life, liberty, or

property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE

Respondent’s Interviews and Statements

Before Respondent’s initial interrogation on November

17, 2022, Respondent read a form advising him of his

Miranda rights, said he had no questions regarding his

rights, and initialed and signed the form.1 Immediately

after signing the form, Respondent said, “I’m not sure how

much I want an attorney here, because after this escalated

to a certain point and it got like really weird I shut off

all communications with my daughter.” 2 Respondent

then immediately continued to talk, not giving Detective

Emilee Wilson a chance to speak. Over an hour later,

Respondent said, “I think I should call my attorney,”

and then continued talking, unprompted, for nearly two

minutes. 3 Respondent then asked Wilson to call his wife

1. 11/17, 0:09:57 – 0:10:47.

2. 11/17, 0:10:57 – 0:11:17.

3. 11/17, 1:26:30 – 1:28:12.

and said, “I’d also like to contact my attorney, so he can

arrange for whatever, kind of thing.”4 Wilson responded

by clarifying, “Do you want your attorney, then, before

you take a polygraph?”5 Respondent responded, “I want

to ask him, like, you know, look, I’m being honest, I’m

being upfront, you know, you know, and now—I will take

a polygraph test, that’s not going to change my mind.”6

Respondent expressed concern with how the polygraph

test would read given his level of anxiety, and Wilson then

briefly explained the polygraph procedure to Respondent

before concluding the interview.7

The following morning, on November 18, 2022,

Respondent’s corporate attorney, Phillip Matthews, met

with Respondent for about 35 minutes. 8 After speaking

with Respondent, Matthews briefly spoke with Wilson,

who asked if Respondent would take a polygraph. 9

Matthews did not answer that question but told Wilson

that he generally practiced civil law and had contacted

a criminal attorney.10 Wilson then asked Respondent

directly if he still wanted to take the polygraph he had

requested, and Respondent said he did.11

4. 11/17, 1:30:21 – 1:30:27.

5. 11/17, 1:30:29 – 1:30:31.

6. 11/17, 1:30:31 – 1:30:48.

7. 11/17, 1:30:47 – 1:31:06.

8. 9/1, 104-105.

9. 9/1, 105-107.

10. 9/1, 21, 106.

11. 9/1, 21.

Before conducting the polygraph, Detective Corporal

Michael McNamara again read Respondent a form

explaining Respondent’s Miranda rights, and Respondent

initialed each right and signed the form. 12 A fter

administering the polygraph and reading the results,

McNamara explained that the results showed deception

and asked Respondent why that might be.13 Respondent

did not ask for or mention an attorney, but did offer

explanations.14 Respondent then made incriminating

statements to McNamara and asked, unprompted, to

speak to Wilson, saying he “wanted to be truthful and

get what he told [McNamara] off his chest.”15

McNamara then brought Respondent to meet with

Wilson in an interview room.16 Before asking Respondent

any questions, Wilson and McNamara had Respondent

read aloud a third form detailing his Miranda rights,

which he initialed and signed before stating that he had no

questions regarding his rights.17 Respondent told Wilson

and McNamara that he had spoken to Phillip Matthews,

saying, “He’s my corporate attorney, I felt like I needed

some things to be addressed.”18 Respondent then made

12. 9/1, 74-76.

13. 9/1, 97.

14. 9/1, 79-80, 97.

15. 9/1, 21, 80, 98.

16. 9/1, 20-21.

17. 9/1, 23, 25; 11/18, 0:01:43 – 0:03:19.

18. 9/1, 31; 11/18, 0:03:26 – 0:03:35.

incriminating statements for approximately 17 minutes,

never mentioning anything regarding an attorney.19

After Respondent confessed, Wilson asked Respondent

what she might find on Respondent’s phone, saying, “You

know I have your phone,” and stating that Respondent was

“pretty protective” of his phone. 20 Respondent responded

that he was startled when Wilson took his phone from him

when he was arrested: “I was going to call my attorney,

and it was, like, this whole dismissiveness of my rights,

that’s kind of how I felt.”21 Respondent then expressed that

he had been frustrated earlier because he did not know

what was going on and was “just sitting here [in the jail].”22

Wilson explained that she had taken his phone quickly

because she thought that he might be deleting things,

and Respondent responded, “Oh, I see.” 23 Respondent

then continued answering questions without mentioning

an attorney. 24

At the conclusion of the interview, Respondent asked

“Where do we go from here?” 25 Wilson and McNamara

briefly explained what would happen up to arraignment. 26

19. 11/18, 0:05:10 – 0:22:41.

20. 11/18, 0:22:32 – 0:22:37.

21. 11/18, 0:22-47 – 0:23:23.

22. 11/18, 0:23:10 – 0:23:17.

23. 11/18, 0:23:43 – 0:24:14.

24. 11/18, 0:24:14 – 0:36:00.

25. 11/18, 0:36:00

26. 11/18, 0:37:48 – 0:38:28.

As Wilson, McNamara, and Respondent are walking out

of the interview room, Respondent mentioned that his

defense attorney “would be here at some point,” saying

that Matthews had hired “some woman from Novi.” 27

The Trial Court’s Ruling

After hearing testimony from Wilson, McNamara, and

Matthews and watching the interrogation video, the trial

court held that Respondent’s first statement regarding

an attorney on November 17, 2022, when Respondent

said, “I’m not sure how much I want an attorney,” was

not unequivocal. 28 The court then held that Respondent’s

statement made during that same interview at 01:26:30

that “I think I should call an attorney” was “an affirmative

unwavering statement that must be characterized as [an]

unambiguous and unequivocal” assertion of Respondent’s

right to counsel. 29 The court held that the police should

have immediately terminated the interview after that

statement and held that any statements made after

Respondent said, “I think I should call an attorney,” were

suppressed. 30

The court then discussed when Wilson asked

Respondent if he wished to take a polygraph: “I want an

attorney to make sure the polygraph is on par and for him

27. 11/18, 0:39:21 – 0:39:42.

28. 9/1, 121-122.

29. 9/1, 122.

30. 9/1, 122-123.

to sit with me in the polygraph to make sure it is standard,

no funny stuff.” 31 The court concluded:

So if there is any question on November 18th

whether or not Mr. Woolley had already invoked

his right to counsel based on his statements the

previous day, his statement that starts with,

‘I want an attorney[,’] I don’t think it can be

anymore [sic] unambiguous or unequivocal.

I think he’s stating that he wants an attorney and

at that point the questioning needed to cease,

the interrogation needed to stop, but instead

the Detective mentions—she talks about the

size of the room that cannot accommodate an

attorney. None of that matters.

Frankly, those statements don’t need to be

made. He requested an attorney, it needs to

stop. It didn’t and anything after that point also

needs to be suppressed.

So, in conclusion, any statements made by Mark

Woolley following his statement on November

17th, ‘I think I should call an attorney[,’] must

be suppressed in this matter.[32]

31. 9/1, 124. The Court of Appeals correctly noted the trial

court erred: this statement was made on November 17, 2022, not

on November 18, 2022. People v. Woolley, No. 367901, 2024 WL

1692953, at 2 (Mich. Ct. App. Apr. 18, 2024), appeal denied, No.

167214, 2024 WL 5104203 (Mich. Dec. 13, 2024).

32. 9/1, 124-125.

The Court of Appeals Decision

The Court of Appeals held that Respondent’s

November 17, 2022, statement, “I think I should call my

attorney,” was not an unambiguous or unequivocal request

for counsel. 33 The Court held that Respondent’s statement

was similar to the Respondent’s statement in Davis v.

United States that “[m]aybe I should talk to a lawyer,” as

well as the Respondent’s statements in People v. Tierney

that “[m]aybe I should talk to an attorney,” and “I might

want to talk to an attorney.” 34

The Court held, however, that Respondent’s statement

at the end of his November 17, 2022, interrogation while

discussing his desire to take a polygraph that, “I’d also

like to contact my attorney so he can arrange for whatever,

you know, kind of thing,” was an unequivocal request for

counsel. 35 The Court further held that any ambiguity

“was clarified by Respondent when Detective Wilson

asked if Respondent wanted to speak with his attorney

before the polygraph examination and Respondent

responded he would take the polygraph examination, but

he wanted to ask his attorney unspecified questions,” and

that Respondent’s statements were not merely inquiries

into the way the process worked. 36 The statements made

during the second interview were thus suppressed.

33. Woolley, supra.

34. Woolley, supra, citing Davis, supra, 512 U.S. at 459,

People v. Tierney, 266 Mich. App. 687, 711 (2005).

35. Id.

36. Id., at 4.

On December 13, 2024, the Michigan Supreme Court

denied Petitioner’s application for leave to appeal the

decision of the Court of Appeals.

REASONS FOR GRANTING THE WRIT

Because the Fifth Amendment concerns voluntariness,

the Court should grant certiorari to determine

whether Miranda should at the least be modified to an

adjudicatory device rather than a rule of law so that

a failure of some sort with regard to Miranda creates

a rebuttable presumption of involuntariness, allowing

admission of the statement if it is demonstrated to be

voluntary; that is, not taken in violation of the actual

Fifth Amendment.

No person shall be compelled in any criminal

case to be a witness against himself.

Fifth A mendment to the United States

Constitution

The Fifth Amendment actually means what

it says.

Professor Joseph Grano. 37

In pertinent part, the Fifth Amendment to the

United States Constitution provides that “No person

37. Joseph D. Grano, Confessions, Truth, and the Law

(University of Michigan Press: 1993), p.143.

. . . shall be compelled in any criminal case to be a

witness against himself.” The purpose of the Miranda

caution is prophylactic; that is, to assist in avoiding

coerced statements by dispelling the inherently coercive

atmosphere of custodial interrogation, but “a violation

of Miranda does not necessarily constitute a violation

of the Constitution and therefore such a violation does

not constitute the deprivation of a right secured by the

Constitution.” 38 There is not even a claim—let alone

a finding—that the Respondent’s statements were

involuntary. Given that the actual right protected by the

Constitution was not violated by the State, it is more

than passing strange that any statement made by the

Respondent is excluded from evidence. It is something of a

mystery that a nonconstitutional violation can, as a matter

of constitutional requirement, require the suppression of

evidence. It is simply a constitutional oxymoron to speak

of a “voluntary inadmissible” statement of an accused.

Only by treating a Miranda violation as creating an

irrebuttable presumption of involuntariness—which in

the context of impeachment the Court has recognized is

not, as a matter of epistemology, true—can this result be

reached, and, as irrebuttable presumptions are simply

rules of law, Miranda effectively amends the Constitution.

A. The Fifth Amendment in History

“Our forefathers , when they w rote this

provision into the Fifth Amendment, had in

mind a lot of history which has been largely

forgotten today.” 39

38. Vega v. Tekoh, 597 U.S. 134, 150 (2022) (cleaned up).

39. Maffie v. United States, 209 F.2d 225, 237 (1954).

The protection of the Fifth Amendment against

compelled self-incrimination in criminal cases seems an

odd protection to have been included in our Bill of Rights

when one takes account of history. At the time of the

Founding, and of the ratification of the Bill of Rights, no

State even permitted, much less compelled, an accused in

a criminal case to testify. It was not until 1864 that Maine

became the first state to permit defendants to testify, and

Congress followed suit in 1878.40 Why, then, the inclusion

of the Fifth Amendment protection against compelled

self-incrimination in criminal cases?

Some scholars, Leonard Levy principal among them,

take the view that the Founders, and the members of

state constitutional conventions that enacted similar

protections on which the Fifth Amendment was based,

“failed to say what they meant,” for if they meant what

they said, then the common-law prohibition on testimony

from the accused in criminal cases rendered the Fifth

Amendment superfluous. 41 Instead, concluded Levy,

what those individuals drafting State Bill of Rights and

the Fifth Amendment actually meant to do was adopt

the common-law right of nemo tenetur seipsum acusare

(no one is bound to accuse himself), which protected not

only against courts in criminal cases but against all of

government, in all kinds of actions, protecting witnesses

as well as the accused, and protecting against “threats

40. See Ralph Rossum, “‘Self-Incrimination’: The Original

Intent,” in Hickok, ed., The Bill of Rights: Original Meaning

and Current Understanding (University of Virginia Press: 1991),

p.276.

41. See Levy, The Origins of the Fifth Amendment (2d Ed)

(MacMillan: 1986).

of criminal liability, civil exposure, and public obloquy.”42

This redrafting of the Fifth Amendment is not tenable.

Professor Rossum nicely notes that Levy and his

followers fail to take account of the very real probability—

given the express language of the Fifth Amendment—that

the drafters were not writing to “end some current abuse

but simply to provide a floor of constitutional protection

above which the common law was free to operate but

below which it could not go.”43 Though it seems quaint

now, during the 17th century the giving of an oath was

itself held to be a coercive act. The ecclesiastical Court of

High Commission engaged in the practice of summoning

those with nonconformist opinions and requiring them

to take an oath and answer questions; refusing the oath

resulted in contempt and Star Chamber proceedings;

lying under oath was perjury, and telling the truth under

oath could subject one to prosecution for political and

religious crimes. The celebrated trial of John Lilburne,

a Puritan agitator who refused to take the oath, led to

the prohibition of the administration of any oath obliging

a person “to confess or accuse himself or herself of any

crime.”44 Professor Albert Alschuler concludes that the

history of the Fifth Amendment is “almost entirely a story

of when and for what purposes people would be required

to speak under oath.”45

42. See Rossum, at 276.

43. Rossum, at 277.

44. See John Henry Wigmore, “The Privilege Against SelfIncrimination: Its History,” 15 Harv. L. Rev. 610, 621-24 (1902).

45. Albert Alschuler, “A Peculiar Privilege in Historical

Perspective: The Right to Remain Silent,” 94 Mich. L. Rev. 2625,

2638 (1994).

Requiring an oath of the criminally accused was

coercive—and banned for that reason—as being equivalent

to torture and the rack. Manuals that instructed justices

of the peace on the conduct of their office warned, from

the late 16th century through the mid-19th century, that

“The law of England is a Law of Mercy, and does not

use the Rack or Torture to compel criminals to accuse

themselves. . . . I take it to be for the Same Reason, that it

does not call upon the Criminal to answer upon Oath. For,

this might serve instead of the Rack, to the Consciences of

Some Men, although they have been guilty of offenses. . . .

The Law has therefore wisely and mercifully laid down

this Maxim, Nemo tenetur seipsum prodere.”46 To put the

matter finely, then, the purpose of the Fifth Amendment,

when understood in its historical context, was “to outlaw

torture and improper methods of interrogation,” including

the compelling of testimony under oath.47

B. The nonconstitutional basis of the Miranda rules

This Court has recently made clear that the Miranda

warnings are not a part of the Constitution, and so their

violation does not, standing alone, violate a Constitutional

right.48 There is no Fifth Amendment right to remain

silent that is subject to a waiver analysis, nor any Fifth

Amendment right to counsel during questioning. These

propositions follow most readily from a simple reading

of the language of the Fifth Amendment; moreover, they

follow from Miranda and its progeny themselves.

46. See Alschuler, at 2648.

47. Alschuler, at 2631.

48. Vega v. Tekoh, supra.

The right not to be compelled is not a “right to

silence”

The Fifth Amendment does not state that “Every

person has a right to remain silent.” Instead, it proclaims

that “No person shall be compelled in any criminal case

to be a witness against himself.” Does the right not to

be compelled or coerced translate into a right to remain

silent? Are the two phrases simply two sides of the same

coin, being merely different ways of expressing the same

principle? The constitutional language itself simply will

not bear such a construction.

The sine qua non for involvement of the Fifth

Amendment is coercive governmental conduct,49 and “few

sane adults would waive a right to be free of compulsion.”50

In the absence of coercive conduct by a governmental

official, that an individual speaks or does not, whether

to some other ‘ordinary citizen’ or to a governmental

official, has nothing to do with the Constitution. When

one speaks voluntarily, that person is not waiving his or

her Fifth Amendment right not to be compelled to speak,

the only right protected by the Fifth Amendment; rather,

the speech is voluntary. If coerced by a governmental

agent, the Fifth Amendment applies, but plainly no one, in

speaking with a governmental agent, is saying, in effect:

Yes, I understand that I have a right not to be

compelled to speak, but I choose to waive that

right and wish to be compelled to speak, so

you may now proceed to beat or torture me or

49. Colorado v. Connelly, 479 U.S. 157 (1986).

50. Alschuler, at 2627.

engage in some other coercive activity in order

to gain my verbal cooperation.

Indeed, Justice Marshall, dissenting in Schneckloth,

said, referring to confessions, that “no sane man would

knowingly relinquish a right to be free of compulsion.

Thus the questions of compulsion and of violation of the

right itself are inextricably intertwined.”51 If the consent

to speak is not voluntary, then the individual has been

compelled, and his or her statements are barred from

admission at trial by the Fifth Amendment, for no person

may be compelled to be a witness against himself. But it is

logically impossible to waive the right not to be compelled

to speak, and this is what the Constitution protects, not

any free floating “right to silence” without regard to

coercive governmental conduct. There is no right to silence

that must be waived knowingly and intelligently, there

is an unwaivable right not to be coerced. 52 As Professor

Grano has aptly pointed out, if there indeed exists an

independent constitutional right to remain silent (rather

than a courtcreated requirement of a warning regarding

silence that serves as one portion of a prophylaxis

designed to protect a constitutional right—the right not

to be compelled), there is no principled basis on which the

right and the waiver analysis can be limited to custodial

interrogation. 53

The appropriate constitutional question regarding

the admission into evidence of a statement given by a

51. Schneckloth v. Bustamonte, 412 U.S. 218, 280281 (1973).

52. See Alschuler, at 2660-2667.

53. See Grano, Confessions, Truth, and the Law, p.142143.

criminally accused thus is, was the statement voluntarily

given or was it compelled? On what basis, under what

rightful authority, can a court declare a voluntary

statement inadmissible, the Constitution being satisfied?54

The nature of the Miranda requirements

The “rights” regarding which a defendant under arrest

must be advised prior to questioning have no significance

independent from the question of voluntariness; they

are not free-standing rights on their own, they are not

constitutional rights of the accused at all, as this Court

recently made clear in Vega. Instead, they are warnings

the sole purpose and design of which is to serve to insure

that any resulting statement is free from governmental

coercion

54. As Professor Grano has pointed out, “No reasonable

person who accepts the basic legitimacy of society and its laws

can endorse the view that a guilty suspect, like a fox during a

hunt, must be given a sporting chance to escape conviction and

punishment. Eschewing sporting theory terminology, many courts

and commentators nevertheless express dismay that the suspect

is on an ‘unequal footing with his interrogators.’ . . . To advocate

such equality is to express indifference, if not actual hostility, to

the likelihood of police success in the interrogation process. . . .

Equality between contestants makes for good sports, but in a

criminal investigation we should be seeking truth rather than

entertainment. . . . A system committed to ascertainment of truth

would not value for its own sake the goal of giving guilty defendants

some chance to escape conviction. . . . Nowhere, except in the

rhetoric of confessions law, does the law reflect anxiety that the

investigation may be too successful and thus deny the defendant

a chance for acquittal at trial.” Joseph D. Grano, “Selling the Idea

to Tell the Truth: The Professional Interrogator and Modern

Confessions Law,” 84 Mich. L. Rev. 662, 677-678 (1986)

That the “rights” litany required by Miranda55 is not

composed of advice of constitutional rights of the accused is

made clear by Miranda itself, as well as its progeny, such as

Vega. The Court stated specifically and directly in Michigan

v. Tucker 56 that these warnings are “not themselves

rights protected by the Constitution” but instead have a

prophylactic purpose, that being to help insure that the

actual constitutional right involved—the right not to be

coerced—is itself protected. Were it otherwise, were the

Miranda warnings themselves composed of independent

constitutional rights of the accused, then a violation of

Miranda would itself be a violation of the Constitution,

and impeachment use of such unconstitutionally gained

statements would be as impermissible as substantive

use. But it is well established that impeachment use of

voluntary—that is, constitutionally gained—statements

that are Mirandadefective is permissible. 57 Harris only

recognizes the obvious—that it is quite possible for a

statement obtained in violation of the prophylactic rules

of Miranda to nonetheless be voluntary. Put another

way, noncompliance with Miranda is not a violation of

the Constitution on its face, as the Miranda “rights” are

not themselves constitutional, nor does their violation

necessarily cause a violation of the actual Constitution,

as a voluntary statement is still quite possible. 58

55. Miranda v. Arizona, 384 U.S. 436 (1966).

56. Michigan v. Tucker, 417 U.S. 433, 444 (1974).

57. See Harris v. New York, 401 U.S. 222 (1971).

58. Tucker and Harris are not the only authority for

the proposition that the Miranda rights are not themselves

constitutional rights; the point is now quite well settled. See e.g.

Vega, supra; New Jersey v. Portash, 440 U.S. 450 (1979); New York

When, then, courts speak of the Fifth Amendment

right to counsel, or the Fifth Amendment Miranda rules,

they misspeak, as this Court itself has expressly disavowed

the notion that the Miranda rights are themselves

constitutional rights of the accused. There is no Fifth

Amendment right to counsel; there is a “Miranda right”

to counsel, the violation of which does not necessarily lead

to a violation of the Fifth Amendment in that the result

may well be a voluntary statement, as it was in the instant

case. Nor is there a right to remain silent; rather, there

is a right not to be coerced. The actual Constitution was

not violated in this case.

Suppression of voluntary statements and

Miranda: The impossibility of irrebuttable

presumptions

If the right protected by the Fifth Amendment

is the right not to be compelled or coerced to give a

statement—and it is—and if the Miranda rights are not

themselves independent constitutional rights—and they

are not—and if a voluntary statement may be given after

Mirandadefective warnings or waivers—and one plainly

may—then from what source comes the authority to insist

that a trial court suppress as substantive evidence of guilt

a statement gained in violation of no constitutional right of

the accused, limiting its use for impeachment purposes?

There is no answer, for there is no source of authority

that permits a Court to order the suppression of a

voluntary statement. Professor Grano has persuasively

v. Quarles, 467 U.S. 649 (1984); Oregon v, Elstad, 470 U.S. 298

(1985); Connecticut v. Barrett, 479 U.S. 523 (1987).

demonstrated the point. 59 To quote the constitutional

source of authority of the United States Supreme Court

virtually provides the answer with no further explanation:

“The judicial Power shall extend to all Cases, in Law

and Equity, arising under this Constitution, (and) the

Laws of the United States.”60 There is no escape from

the proposition that the Court has no authority to direct

a State as to the admission of evidence gained in violation

of no federal constitutional right.

In Miranda the Court invented a creature that is

neither fish nor fowl. The Court has expressly stated that

the Miranda rules create an “irrebuttable presumption”

that the Fifth Amendment is violated when there is

noncompliance with the rules—but that irrebuttable

presumption is not actually irrebuttable, as it is fully

rebuttable when the question is the admission of the

Mirandadefective statement for impeachment purposes,

where the court and the parties must then turn to the

question of whether the Constitution itself and not only

the prophylactic rules designed to protect it has been

violated. This “irrebuttably presumed unconstitutional

for use in the case in chief but not irrebuttably presumed

unconstitutional for impeachment use” is incoherent;

further, nothing in the Constitution warrants it.

Not only is it logically and existentially inconsistent

to say that when sought to be used for one purpose a

59. See Joseph D. Grano, “Prophylactic Rules in Criminal

Procedure: A Question of Article III Legitimacy,” 80 N.W. U. L.

Rev. 100 (1985).

60. Constitution of the United States, Article 3, section 2, in

pertinent part.

statement is irrebuttably presumed unconstitutionally

gained but when sought to be used for a different purpose

it is not irrebuttably presumed unconstitutionally gained,

but there is in fact no such thing as an irrebuttable

presumption in the first place. Professor McCormick

cogently makes this point, as have any number of

other evidence scholars as well: “In the case of what is

commonly called a conclusive or irrebuttable presumption,

when fact – is proven A must be taken as true. . . . the

courts are not stating a presumption of law, but simply

expressing (a) rule of law.”61 A rebuttable presumption is

an aid to adjudication in that it apportions burdens. With

a rebuttable (or true) presumption, the law of evidence

states that if A is proven – will be presumed to also have

been proven; however, if evidence in contradiction of – is

presented, the presumption “bursts” and is of no force. But

the opponent of the presumption must go forward, then,

with some evidence in contradiction to avoid the effect of

the presumption.

A conclusive or “irrebuttable” presumption is actually

a rule of law that simply states that when A is proven – has

been proven, meaning that – actually becomes irrelevant,

as does all evidence in contradiction of B, because A

now provides the legal standard in place of B.62 A court

may create such a rule of law only if A and B are in fact

equivalent; that is, if they are just different ways of

saying the same thing. For example, if it is proven that

the defendant admitted his guilt after being tied to a tree

and horsewhipped, it would be quite understandable to say

that being tied to a tree and horsewhipped is coercion and

61. McCormick, Evidence (4th Ed), § 342.

62. See Grano, at 196.

any resulting statement is involuntary. But, as has been

seen, this cannot be done with the Miranda rules. One

cannot say that if A equals a violation of Miranda, and B

equals involuntariness, that B equals A, for the very plain

reason that this is not true, and this Court has repeatedly

held that it is not true.

This is scarcely a semantic quibble. When a court

substitutes a rule of law (the misnamed irrebuttable

presumption) it has created (the Miranda rules) for

a constitutional provision that is the creature of the

People and the Supreme Law of the Land (the protection

against compulsory selfincrimination) when the two are

not equivalent, the Court has, in so doing, amended the

Constitution.

Miranda violations as establishing a rebuttable

presumption of involuntariness

Though Miranda remains the law, it does so by an

exercise of will rather than authority,63 for once one accepts

that a Mirandadefective confession may be voluntary,

then the conclusion that a rule of law that compels the

suppression of these statements sweeps broader than

the Constitution and thus amends it is inescapable. But

as an evidentiary rule to be applied when voluntariness

is at issue, a violation of the rule and its progeny creating

a rebuttable presumption of involuntariness that may be

overcome, just as it is presently for impeachment use of

63. The distinction between power and authority was aptly

described by Chesterton: “If a rhinoceros were to enter this room,

he would enter with great power; but I would be the first to rise

to tell the beast he had no rightful authority in the premises.”

such statements, Miranda makes perfect sense, and leaves

intact the incentive for law enforcement officers to provide

warnings when engaging in custodial interrogation. Stare

decisis should not preclude this modification of Miranda,

for a judicial decision outside the realm of permissible

interpretation should not prevail over the text of the

Constitution, as it constitutes an amendment of that

document.64 Petitioner seeks not an overruling outright

of Miranda but a modification of its reach, so as to place

it within the proper exercise of judicial power.65

Miranda as creating an irrebuttable presumption

of involuntariness is a rule of law, amending the

Constitution 66 ; Miranda as an adjudicatory device

creating a rebuttable presumption of involuntariness is,

on the other hand, an appropriate exercise of judicial

authority. If after an evidentiary hearing it is determined

64. Gamble v. United States, 587 U.S. 678, 711 (2019)

(Thomas, J., concurring).

65. Dickerson v. United States, 530 U.S. 428 (2000) would

likely need to be overruled, but as Justice Scalia pointed out

in dissent there, the Court could not “come out and say quite

clearly: ‘We reaffirm today that custodial interrogation that is

not preceded by Miranda warnings or their equivalent violates

the Constitution of the United States’” because “a majority of the

Court does not believe it.” Dickerson, at 446, Scalia, J., dissenting.

And see Vega, supra.

66. See People v. Winsett, 606 N.E.2d 1186, 1199 (Ill.,1992)

(“The fact that the police continue to question a defendant who

invokes his right to counsel does not necessarily mean that the

defendant’s statements are, in fact, compelled or involuntary,

within the meaning of the fifth amendment. Rather, Miranda

and its progeny create an irrebuttable presumption that the

defendant’s statement is compelled”).

that a defect in Miranda warnings, or in the taking of a

“waiver” of one of these nonconstitutional rights, did not

lead to an involuntary statement, the statement should be

admissible. If the waiver is found improper here, see Issue

II, then nonetheless the statement should be admissible.

Certiorari should be granted to modify Miranda in

this fashion.

II.

Certiorari should be granted to determine whether

a reference to counsel after Miranda warnings for

reasons unrelated to cutting off questions is an

“invocation” of the Miranda right to counsel, and

whether clarifying questions concerning the taking

of a polygraph to which a reasonable person would not

expect an incriminating response constitute further

interrogation.

A. Respondent’s statements regarding an attorney

were ambiguous, equivocal, and not responsive to

Miranda warnings in order to cut off questioning

Respondent’s statements were at best equivocal

assertions of the nonconstitutional Miranda right to

counsel,67 and were not responses to the warnings for the

purpose of cutting off questioning. In Davis v. United

States 68 the accused stated “Maybe I should talk to a

lawyer” in response to Miranda warnings during the

67. See Vega v. Tekoh, 597 U.S. 134, 149 (2022) (“a Miranda

violation is not the same as a constitutional violation”).

68. Davis v. United States, 512 U.S. 452 (1994).

interview after initial waiver of the warnings. This Court

held this statement was equivocal and did not require the

police to stop the interrogation, reasoning:

We held in Miranda that a suspect is entitled

to the assistance of counsel during custodial

interrogation even though the Constitution

does not provide for such assistance. We held

in Edwards that if the suspect invokes the

right to counsel at any time, the police must

immediately cease questioning him until an

attorney is present. But we are unwilling to

create a third layer of prophylaxis to prevent

police questioning when the suspect might want

a lawyer. Unless the suspect actually requests

an attorney, questioning may continue.69

The Fourth Circuit has found “I think I need a lawyer”

to be insufficient to constitute an unequivocal request for

counsel.70

The Michigan Court of Appeals correctly held

that Respondent’s statement, “I think I should call my

attorney” followed by Respondent immediately continuing

to talk unprompted for two minutes cannot be considered

an unequivocal assertion of his Miranda right to counsel.

It is functionally no different than Respondent’s earlier

statement, “I’m not sure how much I want an attorney”

that the trial court found to be ambiguous and equivocal.

Both statements at most indicate that Respondent might

want a lawyer, and Davis specifically stated that the police

69. Davis, supra, 512 U.S. at 462 (emphasis in original).

70. Burket v. Angelone, 208 F.3d 172, 198 (CA 4 2000).

are not prevented from questioning “when the suspect

might want a lawyer.” 71

Respondent’s November 17th statement that “I

think I should call my attorney” followed by his request

that Wilson call his wife, let her know about their car,

and contact Respondent’s attorney “so he can arrange

for whatever, kind of thing” came at the end of the

interview when Wilson discussed next steps and a possible

polygraph. Indeed, after Respondent asked Wilson to

contact his attorney, Wilson asked if Respondent wanted

to talk to his attorney before taking the polygraph, and

Respondent responded “I want to ask him, like, you know,

look, I’m being honest, I’m being upfront, you know, you

know—and, now, I will take a polygraph test, that’s not

going to change my mind.” 72 Not only are both statements

highly ambiguous but they also show that Respondent’s

concerns were with the process of the polygraph and what

would occur procedurally next, not to cut off questioning

in response to Miranda warnings. In fact, once Wilson

explained how polygraphs establish a baseline and account

for people feeling anxious, Respondent indicated that this

answered his question.73

This focus on “inquiries into the way the process

worked” is further shown by Respondent’s statement

in response to Wilson’s question whether Respondent

wanted to take a polygraph. Respondent stated, “I want an

attorney to make sure the polygraph is on par and for him

71. Davis, supra, 512 U.S. at 462 (emphasis in original).

72. 11/17, 01:30:29 – 01:30:48.

73. 11/17, 01:30:47 – 01:31:06.

to sit with me in the polygraph to make sure it is standard,

no funny stuff.” Wilson testified that Respondent asked

for an attorney “for clarification, he wanted an attorney to

ask about the polygraph and the standard of the polygraph

examination,” which again shows a focus on the process

involved and is not an unambiguous and unequivocal

assertion of the Miranda “right” to counsel to cut off

questioning.74 Respondent did speak to his corporate

attorney the morning before the polygraph, and so he

was aware of his right to speak to an attorney. He chose

instead to acknowledge and waive his right to an attorney

for a second time before taking the polygraph. Finally,

after taking the polygraph, Respondent requested to

speak again with Wilson, and chose to waive his right

to counsel yet again before his requested interview with

Wilson began.

Because no assertion of the Miranda right was made

in order to cut off questioning, the Michigan Court of

Appeals erred, and this Court’s intervention is required

to establish that references to counsel unrelated to the

Miranda warnings are not an “invocation” of a Miranda

“right.”

B. Application of a Sixth Amendment analysis to

determine whether a person reinitiated conversation

with the police is mistaken

The Michigan Court of Appeals also erred in

believing that because a waiver of the right to counsel

under Miranda often suffices for a waiver of the right to

counsel under the Sixth Amendment, Sixth Amendment

74. 9/1, 64.

caselaw regarding whether a Respondent reinitiated

conversation necessarily applies to cases involving the

Fifth Amendment. The Fifth and Sixth Amendments

serve different purposes and, therefore, require different

evaluations and applications. It bears repeating that even

though a waiver of the Miranda “right” to counsel may

also be sufficient to waive the Sixth Amendment right

to counsel, that “right” is “distinct and not necessarily

coextensive with the right to counsel afforded criminal

Respondents under the Sixth Amendment.” 75 Unlike the

Sixth Amendment’s focus on formal charges and the trial

process, the Miranda “right” to counsel “is designed

to counteract the ‘inherently compelling pressures’ of

custodial interrogation.” 76 Because the Michigan Court

of Appeals relied on caselaw concerning the Sixth

Amendment, it failed to make the necessary Fifth

Amendment determinations whether the November 18,

2022, police contact with Respondent amounted to the

necessary custodial interrogation, and whether, assuming

Respondent unequivocally invoked his right to counsel on

November 17, 2022, Respondent reinitiated contact on

November 18, 2022.77

Communication between the police and a Respondent

that does not fit the definition of interrogation is permitted

and does not violate the right to counsel under the Fifth

Amendment.78 “[T]he admissibility of statements obtained

75. People v. Williams, 244 Mich. App. 533, 538 (2001).

76. People v. Williams, 470 Mich. 634, 640 (2004); Arizona

v. Roberson, 486 U.S. 675, 685 (1985).

77. See Woolley, supra, at 4-5 applying People v. Anderson,

446 Mich. 392, 402-404 (1994), and People v. Harrington, 258 Mich.

App. 703, 706-707 (2003).

78. People v. Kowalski, 230 Mich. 464, 478-479 (1998).

after the person in custody has decided to remain silent

depends under Miranda on whether his right to cut off

questioning was scrupulously honored.” 79

Communication that is “attendant to” legitimate police

procedure is not considered the functional equivalent

of interrogation and is permitted after an invocation of

the Miranda “right” to counsel. 80 Various other forms

of communication between the police and a Respondent

after invocation of the Miranda “right” to counsel have

been held permissible, including (1) inquiring if the

Respondent has changed his mind about wanting to speak

to an attorney81; (2) advising Respondent of the nature of

the charge against him and the circumstances that lead

the police to believe Respondent was responsible 82; (3)

informing Respondent that a co-Respondent has given a

statement 83; (4) telling a Respondent that “we’ve got good

information on you,” 84; (5) telling Respondent that the

detective hoped the gun was not found by anyone who could

get hurt 85; (6) asking Respondent if he had changed his

mind about talking, informing Respondent that they found

the murder weapon in his home, and telling Respondent

“things did not look good for him,” and that he should

79. Michigan v. Mosley, 423 U.S. 96, 104 (1975) (internal

quotation marks and citations omitted).

80. Pennsylvania v. Muniz, 496 U.S. 582, 603 (1990).

81. Kowalski, supra, 230 Mich. App. at 479.

82. People v. McCuaig, 126 Mich. App 754, 759-760 (1983).

83. Kowalski, supra, 230 Mich. App. at 482.

84. United States v. Hurst, 228 F.3d 751, 760 (CA 6, 2000).

85. People v. Raper, 222 Mich. App. 475, 480-481 (2011).

“do the right thing” and get “with the program,”86; (7)

commenting to Respondent that “things would be easier

for [you] if [you] talked,” 87; (8) telling the Respondent

that he “could possibly face the death penalty” for the

crime 88; (9) saying, “I bet you want to talk now, huh?”

after Respondent was given a statement of charges and

maximum penalties, about 35 minutes after Respondent

requested an attorney89; (10) explaining why the suspect

was arrested90; (11) telling Respondent, “They found a

gun at your house,” 91 and (12) saying, “Just think about

Harry Payne,” (a co-conspirator).92

Here, even assuming the Michigan Court of Appeals

correctly held that Respondent made an unequivocal

request for counsel on November 17, 2022, questioning

ceased after Respondent stated he wanted to take a

polygraph and mentioned his attorney. The following

morning, Respondent met with his counsel. 93 After

Respondent met with counsel, Detective Wilson asked the

86. Fleming v. Metrish, 556 F.3d 520, 522 (CA 6, 2009).

87. United States v. Murphy, 107 F.3d 1199, 1205 (CA 6, 1997).

88. McKinney v. Ludwick, 649 F.3d 484, 489-490 (CA 6, 2011).

89. United States v. Blake, 571 F.3d 331, 336-337 (CA 4, 2009).

90. United States v. Benton, 996 F.2d 642 (CA 3, 1993).

91. United States v. Payne, 954 F.2d 199, 200-203 (CA 4,

1992).

92. United States v. Jackson, 863 F.2d 1168, 1170-1172 (CA

4, 1989).

93. 9/1, 104-105.

attorney if Respondent still wanted to take a polygraph.94

When the attorney would not answer that question,

Wilson asked Respondent directly if he wanted to take a

polygraph.95 Respondent replied that he did.96 Asking this

yes or no question was not interrogation, as no reasonable

person would have expected—and did not receive—an

incriminating response. Respondent was then read his

rights and signed the form waiving those rights before

the polygraph was administered.97 After the polygraph,

Respondent made incriminating statements and asked

to speak with Wilson. 98 Before speaking with Wilson,

Respondent read aloud another form explaining his

Miranda “rights,” and again signed the waiver.99

Under Mosley it is clear that Respondent’s request

for counsel was “scrupulously honored,” as questioning

ceased. The following day, after Respondent met with

counsel, Wilson asked him only if he still wanted to take

a polygraph. This was a question normally attendant to

custody, as it referred to the scheduling of a polygraph

and was not reasonably likely to elicit a recriminating

response, as the answer would either be “yes,” or “no.”

If asking a Respondent if they still want to talk to an

attorney or had changed their mind is permissible after

a Respondent invokes his Miranda “right” to an attorney,

94. 9/1, 105-107.

95. 9/1, 21.

96. 9/1, 21.

97. 9/1, 21.

98. 9/1, 21, 80, 98.

99. 9/1, 23, 25; 11/18, 0:01:43 – 0:03:19.

then asking Respondent a yes-or-no question to clarify

if a polygraph needed to be scheduled certainly does not

constitute a reinitiation of custodial interrogation by the

police.

Further, Respondent had just spoken to his attorney,

and so he was obviously aware of his right to counsel. Had

Respondent said no, he did not want a polygraph, that

would have ended the interaction. Once Respondent said

he did want a polygraph, however, and then again was

informed of his rights and waived them, it was Respondent

that reinitiated the interrogation.100 Respondent then

waived his rights yet again before speaking to Wilson.

There can be no doubt that Respondent was aware of his

rights, and Respondent made no claim that his statements

during the polygraph or to Wilson were involuntary, which

is the primary inquiry in determining the admissibility of

the statements under the Fifth Amendment.101 Because

Wilson’s sole question whether Respondent still wanted

to take a polygraph test was not custodial interrogation

under the Fifth Amendment, and Respondent’s decision to

take the polygraph and repeatedly waive his rights meant

he reinstated a conversation with police, his statements on

November 18, 2022, did not violate the Fifth Amendment

and are admissible.

100. Wyrick v. Fields, 459 U.S. 42, 47 (1982) (when a defendant

requests a polygraph, the defendant initiates an interrogation).

101. See People v. Ray, 431 Mich. 260, 268 (1988); People v.

Hicks, 185 Mich. App. 107, 113-114 (1990). See question 1.

CONCLUSION

The Michigan Court of Appeals erred by failing to

determine whether Respondent’s November 18, 2022,

statements resulted from custodial interrogation and

by failing to apply caselaw defining “reinitiation” in the

Miranda context. Even assuming the Court of Appeals

correctly found that Respondent made an unequivocal

request for counsel at the end of his November 17, 2022,

interrogation, Respondent’s request was scrupulously

honored as questioning ceased. The next day, Respondent

met with counsel as requested. After meeting with

counsel, the detective asked Respondent a routine yesor-no question whether Respondent still wanted to take

a polygraph. In no way was that question one that would

be reasonably likely to elicit an incriminating response. It

was Respondent’s choice to answer that he was requesting

a polygraph, and it was his decision to waive his Miranda

rights, take the polygraph, ask to speak to the detective,

waive his rights again, and then speak with the detective.

The detective’s question to Respondent was not custodial

interrogation, Respondent’s rights under Miranda and the

Fifth Amendment were not violated, and his statements

were voluntary; therefore, his statements are admissible

at trial. Certiorari should be granted.

RELIEF

Wherefore, the Petition for certiorari should be

granted.

Respectfully submitted,

Kym Worthy

Prosecuting Attorney

County of Wayne

Jon P. Wojtala

Chief, Research, Training, and Appeals

Timothy A. Baughman

Special Assistant Prosecuting Attorney

Lori Baughman Palmer

Counsel of Record

Assistant Prosecuting Attorney

5301 Russell Street, Second Floor

Detroit, MI 48211

lpalmer@waynecountymi.gov

(313) 202-7113

APPENDIX

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

COURT OF A PPEALS OF MICHIGAN,

FILED APRIL 18, 2024 . . . . . . . . . . . . . . . . . . . . . . . 1a

A PPEN DI X B — OR DER OF T H E

S U PR EM E C OU RT OF M IC H IG A N,

FILED DECEMBER 13, 2024 . . . . . . . . . . . . . . . . 15a

A PPEN DI X C — EXCER P T S OF

E V I DEN T I A RY H E A R I NG I N T H E

CIRCUIT COURT FOR THE COUNT Y

OF WAY N E , CR I M I NA L DI V I SION,

STAT E OF M ICH IGA N, DAT ED

SEPTEMBER 1, 2023 . . . . . . . . . . . . . . . . . . . . . . . . 16a

AppendixOF

A THE COURT OF

APPENDIX A — OPINION

APPEALS OF MICHIGAN, FILED APRIL 18, 2024

COURT OF APPEALS OF MICHIGAN

No. 367901

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

MARK DAVID WOOLLEY,

Defendant-Appellee.

Filed April 18, 2024

Before: Riordan, P.J., and O’Brien and Maldonado, JJ.

OPINION

Per Curiam.

In this interlocutory appeal, the prosecution appeals

by leave granted 1 the trial court’s order granting

defendant’s motion to suppress statements he made to

law enforcement during two custodial interviews and

1. People v Woolley, unpublished order of the Court of

Appeals, entered November 15, 2023 (Docket No. 367901).

Appendix A

a polygraph examination. Defendant was charged with

six counts of first-degree criminal sexual conduct, MCL

750.520b(2)(b) (victim less than 13 years old) and two

counts of second-degree criminal sexual conduct, MCL

750.520c(2)(b) (victim less than 13 years old). We reverse

with respect to the first interview but otherwise affirm.

BACKGROUND

Defendant was arrested following disclosures of

sexual abuse made by his grandchild. Following his

arrest, defendant was interviewed by police, and the

next day he submitted to a polygraph examination. Later

that day, a second interview was conducted, and during

the second interview, defendant confessed to engaging

in sexual contact with the complainant on numerous

occasions while the complainant was between the ages of

9 and 12. Specifically, defendant described masturbating

on the complainant’s buttocks, performing fellatio on

the complainant, and making the complainant perform

fellatio on him. Defendant moved for suppression of these

inculpatory statements, asserting that he was questioned

in violation of his Miranda2 rights because he asserted

his right to an attorney. The trial court agreed with

defendant, and his statements were suppressed. This

appeal followed.

II. DISCUSSION

The prosecution argues that the trial court erred by

finding that defendant unequivocally invoked his right to

2. Miranda v Arizona, 384 US 436; 86 S Ct 1602;16 L Ed2d

694 (1966).

Appendix A

counsel. With the exception of defendant’s statement early

in the first interview, we disagree.

This Court reviews “de novo a trial court’s ultimate

decision on a motion to suppress on the basis of an alleged

constitutional violation.” People v Gingrich, 307 Mich App

656, 661; 862 NW2d 432 (2014). This Court reviews for clear

error a trial court’s findings of fact from a suppression

hearing. Id. “A finding of fact is clearly erroneous if, after

a review of the entire record, an appellate court is left

with a definite and firm conviction that a mistake has been

made.” Id. 661 (quotation marks and citation omitted). This

Court reviews de novo “[a]ny ancillary questions of law

relevant to the motion to suppress . . . .” Id.

“The right against self-incrimination is guaranteed

by both the United States Constitution and the Michigan

Constitution.” People v Tierney, 266 Mich App 687, 707;

703 NW2d 204 (2005), citing U.S. Const., Am. V; Const.

1963, art. 1, § 17. Thus, “[a] criminal defendant enjoys

safeguards against involuntary self-incrimination during

custodial interrogations.” People v Henry (After Remand),

305 Mich App 127, 145; 854 NW2d 114 (2014). Among these

safeguards is the right to have counsel present during a

custodial interrogation “because the presence of counsel

at custodial interrogation is one way in which to insure

that statements made in the government-established

atmosphere are not the product of compulsion.” People v

Elliott, 494 Mich 292, 301; 833 NW2d 284 (2013) (quotation

marks and citation omitted). Before a person may be

subjected to custodial interrogation, “the person must

be warned that he has a right to remain silent, that any

Appendix A

statement he does make may be used as evidence against

him, and that he has a right to the presence of an attorney,

either retained or appointed.” Miranda v Arizona, 384

US 436, 444; 86 S Ct 1602;16 L Ed2d 694 (1966). When

a suspect invokes his right to counsel, the police must

immediately cease questioning the suspect and cannot

resume questioning until counsel is present. Tierney, 266

Mich App at 710-711.

“However, the defendant’s invocation of his right

to counsel must be unequivocal.” Id. at 711. A suspect’s

assertion of his or her right to counsel is unequivocal if

the assertion is unambiguous. See, e.g., Henry (After

Remand), 305 Mich App at 147. Police are not required

to immediately cease questioning “if a suspect makes a

reference to an attorney that is ambiguous or equivocal

in that a reasonable officer in light of the circumstances

would have understood only that the suspect might be

invoking the right to counsel . . . .” Davis v US, 512 US 452,

459; 114 S Ct 2350; 129 L Ed 2d 362 (1994). A suspect who

has properly invoked his right to counsel can later waive

his right to counsel without the presence of an attorney.

People v Harris, 261 Mich App 44, 54; 680 NW2d 17 (2004).

When a defendant asserts his right to counsel but later

reinitiates a conversation with police, “the proper inquiry

is whether the defendant reinitiated a conversation on the

subject matter of the investigation and whether, under the

totality of the circumstances, the defendant knowingly

and intelligently waived his right to counsel . . . .” People

v Clark, 330 Mich App 392, 418; 948 NW2d 604 (2019).

Appendix A

With respect to what constitutes an unequivocal

and unambiguous assertion of the right to counsel, the

Supreme Court in Davis concluded that the defendant

did not unequivocally or unambiguously assert his right

to counsel when the defendant stated during a custodial

interview, “Maybe I should talk to a lawyer.” Davis, 512

US at 462. This Court has also previously considered

whether a defendant’s assertion of his right to counsel

during a custodial interrogation was unequivocal and

unambiguous. In Tierney, this Court held that the

defendant’s statements that “[m]aybe I should talk to

an attorney” and “I might want to talk to an attorney”

were not unequivocal assertions of the defendant’s right

to counsel. Tierney, 266 Mich App at 711. This Court has

also held that a defendant did not unequivocally assert

her right to counsel by asking police, “Shouldn’t I have a

lawyer?” McBride, 273 Mich App at 258-259.

FIRST INTERVIEW

The trial court erred by finding that defendant

unequivocally and unambiguously asserted his right to

counsel by stating during the first interview on November

17, 2022, “I think I should call my attorney,” because “a

reasonable officer in light of the circumstances would have

understood only that [defendant] might be invoking the

right to counsel . . . .” Davis, 512 US at 459. Defendant’s

statement was similar to the equivocal statement of the

defendant in Davis that “[m]aybe I should talk to a lawyer.”

Id. at 462. It is also similar to the equivocal statements of

the defendant in Tierney that “[m]aybe I should talk to

an attorney” and “I might want to talk to an attorney.”

Appendix A

Tierney, 266 Mich App at 711. In both Davis and Tierney,

the defendants’ statements expressed an uncertainty as

to whether they wanted to speak with an attorney. Here,

defendant’s use of the phrase “I think” to preface his

statement that “I should call my attorney” expresses the

same degree of uncertainty as the equivocal statements of

the defendants in Davis and Tierney. Further, suggesting

that he should call an attorney is not the same as stating

that he will or that he wants to.

Moreover, as argued by the prosecution, defendant’s

statement that “I think I should call my attorney” was not

an unequivocal assertion of his right to counsel because

defendant continued to speak with police unprompted

after making this statement. After stating that “I think

I should call my attorney,” defendant continued to discuss

the subject matter of the investigation as follows:

And then, also, I think I should call my attorney,

right, and at least have—you know, I mean, the

fact that [complainant] said something takes

it beyond a point where it’s just my daughter

trying to destroy me, I guess. And that was a

thing we kept talking about as a family, is what

is her end game here? Does she want money?

I don’t [inaudible]. Does she want, you know,

what is it? You know, and I can’t figure this

out, you know, because—it just—the ball just

kept—everything just kept changing. And then

this is where it lands. And it’s so preposterous

that it’s, you know—and then now to say that

[complainant] is saying this, these things, when

Appendix A

I know them not to be true. I’m—I can’t say it

enough. I cannot say it enough. But I am—I will

get information from my doctor, I will get, you

know, whatever information you guys need to

debunk this, I guess, for lack of a better term

because I don’t know. Is this his way of wanting

to get back home? I don’t know.

In light of the uncertain nature of defendant’s

statement that “I think I should call my attorney” and

the fact that defendant continued to discuss the subject

matter of the investigation unprompted after making

this statement, a reasonable officer would understand

only that defendant might want to assert his right to

counsel; thus, this statement was not an unequivocal

assertion of defendant’s right to counsel, and the police

were not required to cease questioning defendant after

this statement.

B. POLYGRAPH

The prosecution next argues that defendant’s

statement on November 17, 2022, regarding wanting an

attorney before taking the polygraph examination was

not an ambiguous and unequivocal assertion of his right

to counsel. We disagree.

As an initial matter, the trial court misconstrued

Detective Wilson’s testimony regarding when defendant

made the statement that he wanted an attorney to ensure,

as paraphrased by Detective Wilson, that “no funny stuff”

Appendix A

occurred during the polygraph examination. The trial

court found that

the defense attorney, Mr. Matthews, states

to Detective Wilson that he is going to call a

criminal attorney and despite him saying that[,]

Detective Wilson then returns to Mr. Woolley

and discusses the polygraph examination and

in discussing whether he wishes to take the

polygraph[,] Mr. Woolley’s first statement is, “I

want an attorney to make sure the polygraph

is on par and for him to sit with me in the

polygraph to make sure it is standard, no funny

stuff[.]”

Thus, it appears that the trial court was under the

misapprehension that defendant made this statement

on November 18, 2022, after meeting with Matthews.

However, it appears that Detective Wilson’s testimony

regarding defendant’s comment about “no funny stuff”

was a paraphrasing of defendant’s statements at the end of

the first interview on November 17, 2022, that “I’d also like

to contact my attorney so he can arrange for whatever, you

know, kind of thing,” and that “I want to ask [my attorney],

like, you know—look, I’m being honest, I’m being up front

... and now, I will take a polygraph test. That’s not going

to change my mind because, you know, right now I’m very

anxious.” Having clarified that the statement regarding

“no funny stuff” was made during the first interview on

November 17, 2022, and not on November 18, 2022, we

will now address whether the trial court erred by finding

these statements to be an unequivocal and unambiguous

assertion of defendant’s right to counsel.

Appendix A

The trial court did not err by finding that defendant’s

statements regarding speaking with an attorney in

advance of the polygraph examination were unambiguous

and unequivocal assertions of defendant’s right to counsel.

Defendant clearly stated during the first interview, “I’d

also like to contact my attorney so he can arrange for

whatever, you know, kind of thing.” This statement by

defendant clearly communicated his desire to assert

his right to counsel. If Detective Wilson was under any

misapprehension that defendant was asserting his right to

counsel, that misapprehension was clarified by defendant

when Detective Wilson asked if defendant wanted to speak

with his attorney before the polygraph examination and

defendant responded that he would take the polygraph

examination, but he wanted to ask his attorney unspecified

questions. The trial court did not clearly err by finding

that these statements by defendant communicated that

he wanted to speak with an attorney in advance of the

polygraph.

The prosecution also arg ues that defendant’s

statements on November 17, 2022, regarding wanting an

attorney before taking the polygraph examination were

merely inquiries into the way the process worked and,

therefore, do not constitute unambiguous and unequivocal

assertions of the right to counsel. It is true that a defendant

does not unequivocally assert the right to counsel merely

by inquiring into whether he or she may speak to an

attorney during a custodial interrogation. People v

Adams, 245 Mich App 226, 238; 627 NW2d 623 (2001). In

the instant case, however, defendant’s statements were not

inquiries into whether he was allowed to have an attorney.

10a

Appendix A

Defendant told Detective Wilson that he wanted to contact

his attorney “so [his attorney] can arrange for whatever,”

and indicated that he had questions that he wanted to

ask his attorney. Nothing about defendant’s statements

suggests that he was merely asking Detective Wilson

whether he was entitled to have an attorney or how the

polygraph examination process worked. As the trial court

found, defendant’s statements regarding his attorney and

the polygraph examination were unequivocal assertions

of his right to counsel.

SUBSEQUENT QUESTIONING

The prosecution argues that even if defendant

unequivocally asserted his right to counsel on November

17, 2022, he waived that right on November 18, 2022, by

acknowledging and waiving his Miranda rights before

undergoing the polygraph examination and again before

the second interview with Detective Wilson and Detective

McNamara. We disagree.

It is true that a defendant who asserts the right to

counsel can later waive the right to counsel. Harris, 261

Mich App at 54. However, once a suspect unequivocally

asserts the right to counsel, police must immediately

cease questioning the suspect until counsel is present,

Tierney, 266 Mich App at 710-711, or until the defendant

reinitiates a conversation with police about the subject

matter of the investigation and the defendant knowingly

and intelligently waives the previously asserted right to

counsel, Clark, 330 Mich App at 419. It is undisputed that

defendant’s counsel was not present for the polygraph

11a

Appendix A

examination or postpolygraph interview with Detective

McNamara. It is also undisputed that defendant read and

signed a Miranda waiver before undergoing the polygraph

examination. Thus, to determine whether defendant

waived his previously asserted right to counsel with

respect to the polygraph examination and postpolygraph

interview, the proper inquiry is whether defendant

reinitiated a conversation with police about the subject

matter of the investigation. Id.

Our Supreme Court has previously considered under

what circumstances a defendant reinitiates contact with

police with respect to a polygraph examination such that

the defendant validly waives the right to counsel. See

People v Anderson, 446 Mich 392, 402-404; 521 NW2d

538 (1994). In Anderson, the Supreme Court held that the

defendant did not reinitiate contact with police such that

he validly waived his Sixth Amendment right to counsel

when the defendant requested a polygraph examination

before he was arraigned but the examination was not

offered or conducted until after he was arraigned. 3 Id.

at 403-404. The Court held that after the defendant was

arraigned and requested appointed counsel, his Sixth

Amendment right to counsel was invoked; thus “the

general prohibition against further police interrogation

was invoked, absent any subsequent initiation and waiver

3. Though the issue in Anderson involved the defendant’s

Sixth Amendment right to counsel, our Supreme Court has

recognized that “[t]he inquiry regarding waivers of Sixth

Amendment rights mirrors the inquiry of whether a defendant

has validly waived his Fifth Amendment rights . . . .” People v

Williams, 470 Mich 634, 640; 683 NW2d 597 (2004).

12a

Appendix A

by defendant.” Id. at 403 (footnotes omitted). Though the

polygraph examination was requested by the defendant

before he invoked his right to counsel, the Court held

that the defendant did not reinitiate contact with police

for the purposes of a waiver of the right to counsel by

undergoing the polygraph examination because the

polygraph examination was initiated by police contacting

the defendant after he had invoked his right to counsel.

Id. at 404.

Similarly, this Court has held that police obtained

inculpatory statements from a defendant in violation of his

Sixth Amendment right to counsel when the inculpatory

statements were made following a polygraph examination

that occurred after the defendant invoked his right to

counsel. People v Harrington, 258 Mich App 703, 706-707;

672 NW2d 344 (2003). In Harrington, police discussed

the possibility of taking a polygraph examination with

the defendant prior to his arraignment but did not contact

the defendant to arrange and conduct the polygraph

examination until after the defendant’s arraignment when

counsel was appointed and defendant’s Sixth Amendment

right to counsel was invoked. Id. at 704-705. Thus, the

Court held it was the police—not the defendant—who

reinitiated communications about the subject matter of

the investigation after the defendant invoked his right

to counsel. This Court rejected the argument that the

defendant reinitiated communication with police by asking

to speak with them after the polygraph examination,

thereby waiving his right to counsel, because “[t]he

statements allegedly elicited from defendant were

obtained during the course of ongoing contact that was

originally initiated by the police.” Id. at 707.

13a

Appendix A

Defendant did not waive his previously asserted right

to counsel with respect to the polygraph examination

and postpolygraph interview with Detective McNamara.

Like the defendants in Anderson and Harrington,

defendant discussed with police the possibility of taking

a polygraph examination before he asserted his right to

counsel. Further, as in Anderson and Harrington, after

defendant asserted his right to counsel, police reinitiated

contact with defendant for the purposes of arranging and

administering a polygraph examination. In Anderson and

Harrington, the mere fact that the defendants underwent

polygraph examinations did not constitute reinitiating

contact with police; rather, the point that contact was

reinitiated in both cases was when police contacted the

defendants, after they invoked their rights to counsel,

to arrange and administer the polygraph examination.

Anderson, 446 Mich at 403-404; Harrington, 258 Mich

App at 707. The same is true in the instant case: after

defendant unequivocally asserted his right to counsel

on November 17, 2022, police reinitiated contact with

defendant for the purposes of arranging and administering

the polygraph examination. Thus, with respect to the

polygraph examination and postpolygraph interview with

Detective McNamara, defendant did not validly waive his

previously asserted right to counsel because defendant

did not reinitiate the contact with police. The trial

court, therefore, did not err by suppressing defendant’s

inculpatory statements made during the postpolygraph

interview with Detective McNamara.

The trial court likewise did not err by suppressing

defendant’s statements during the second interview.

Detective McNamara testified that after the polygraph

14a

Appendix A

examination and postpolygraph interview, defendant asked

to speak with Detective Wilson because “[h]e wanted to be

truthful and get what he told [Detective McNamara] off

his chest.” Defendant and Detective McNamara thereafter

went to a different interview room where they were

joined by Detective Wilson. This is similar to Harrington

because the second interview was part of a “course of

ongoing contact that was originally initiated by the police.”

Harrington, 258 Mich App at 707. Indeed, the interview

took place the same day as the polygraph examination,

and the purpose of the interview was to follow up on the

statements made during the examination.

Affirmed in part, reversed in part, and remanded for

additional proceedings consistent with this opinion. We do

not retain jurisdiction.

15a

APPENDIXAppendix

B — ORDER

OF THE

SUPREME COURT OF MICHIGAN,

FILED DECEMBER 13, 2024

SUPREME COURT OF MICHIGAN

2024 WL 5104203

SC: 167214

COA: 367901

Wayne CC: 22-007747-FC

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

MARK DAVID WOOLLEY,

Defendant-Appellee.

December 13, 2024

Order

On order of the Court, the application for leave

to appeal the April 18, 2024 judgment of the Court of

Appeals is considered, and it is DENIED, because we

are not persuaded that the questions presented should

be reviewed by this Court.

16a

Appendix COF EVIDENTIARY

APPENDIX C — EXCERPTS

HEARING IN THE CIRCUIT COURT FOR THE

COUNTY OF WAYNE, CRIMINAL DIVISION,

STATE OF MICHIGAN, DATED SEPTEMBER 1, 2023

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY

OF WAYNE

CRIMINAL DIVISION

File No. 22-007747-01-FC

Evidentiary Hearing

THE PEOPLE OF THE STATE OF MICHIGAN,

vs.

MARK DAVID WOOLLEY,

Defendant.

PROCEEDINGS TAKEN in the above-entitled

cause, before the HONORABLE JOHN C. GILLIS,

Judge of the 3rd Judicial Circuit Court, City of Detroit,

at Frank Murphy Hall of Justice, Courtroom 801, Detroit,

Michigan, on September 1, 2023.

***

[121]THE COURT: Okay. Thank you. The Court is

prepared to rule at this time and I’m going to cite just a

little bit of case law to start. I know some of these cases

were discussed, but I don’t think it hurts to repeat.

17a

Appendix C

So starting with Miranda, because that’s kinda where

this all starts, the United States Supreme Court has held

that an individual that says he wants an attorney -- excuse

me. 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 have him present during

any subsequent questioning. That’s Miranda V Arizona,

384 U.S. 436, 1966.

Supreme Court has also stated that if a suspect’s

statement is not an unambiguous or unequivocal request

for counsel, the officers have no obligation to stop

questioning him. That’s Davis V United States, 512 U.S.

452, 1994.

So in the case before the Court the first statement that

the Court needs to analyze was the Defendant’s statement

regarding an attorney where he states, ‘I’m not sure

how much I want an attorney’, and [122]of course we’re

going to find that that does not meet the unambiguous

or unequivocal standard set in Davis. Mr. Woolley’s

statement here is similar to the statement, ‘I might want

to talk to an attorney’, used by the Defendant in People v.

Tierney. That’s 266 Mich. App. 687, 2005, and the Tierney

Court found that the statement was not unequivocal in

that matter.

The second statement that the Defendant makes is,

‘I think I should call an attorney’, and from watching the

video and I think it is important to watch the video because

18a

Appendix C

I think context and body language make a difference

rather than just looking at a quote, and from watching

that video footage it’s very clear -- and this is the video

of -- video footage of the interrogation.

I believe this would be People’s Exhibit Four. It’s at

the eighty-six thirty time mark. It’s very clear that the

statement made by the Defendant, ‘I think I should call

an attorney’, is an affirmative unwavering statement that

must be characterized as unambiguous and unequivocal.

The Court does find that at that point Mr. Woolley

did invoke his right to counsel and based on the rulings

in Miranda, Davis, and also Edwards V Arizona, which is

415 U.S. 477, 1981, the police must have [123]immediately

terminated the interrogation with Mr. Woolley following

his unequivocal invocation of his right to counsel.

So that is on November 17th. So anything after he

makes the statement on November 17th, ‘I think I should

call an attorney’, until the end of the interrogation on that

day must be suppressed. Now, moving to the following

day, November 18 -MS. MOSES: Judge, I’m so sorry. Can you repeat

those timestamps again?

THE COURT: The timestamp that I referenced -- so

I believe this is People’s Exhibit Four. This would be the

eighty-six thirty time mark where the Defendant states, ‘I

think I should call an attorney’. So based -- anything after

that time mark on November 17th must be suppressed.

19a

Appendix C

Moving to November 18th, as we had testimony here

today, Mr. Woolley did have the opportunity to speak to

an attorney on that date. That was Mr. Matthews who

testified earlier and Mr. Matthews after speaking to Mr.

Woolley, his client, did speak to Detective Wilson and while

he may have been aware that there -- that the police may

have wanted to conduct a -- let’s see here.

So the defense attorney, Mr. Matthews, [124]states

to Detective Wilson that he is going to call a criminal

attorney and despite him saying that Detective Wilson

then returns to Mr. Woolley and discusses the polygraph

examination and in discussing whether he wishes to take

the polygraph Mr. Woolley’s first statement is, ‘I want an

attorney to make sure the polygraph is on par and for him

to sit with me in the polygraph to make sure it is standard,

no funny stuff’.

So if there is any question on November 18th whether

or not Mr. Woolley had already invoked his right to counsel

based on his statements the previous day, his statement

that starts with, ‘I want an attorney’, I don’t think it can

be anymore unambiguous or unequivocal.

I think he’s stating that he wants an attorney

and at that point the questioning needed to cease, the

interrogation needed to stop, but instead the Detective

mentions -- she talks about the size of the room that cannot

accommodate an attorney. None of that matters.

Frankly, those statements don’t need to be made.

He requested an attorney, it needs to stop. It didn’t and

anything after that point also needs to be suppressed.

20a

Appendix C

So in conclusion, any statements made by [125]Mark

Woolley following his statement on November 17th, ‘I

think I should call an attorney’, must be suppressed in

this matter.

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