Petition for Writ of Certiorari — Michigan v. Bladel

Supreme Court brief1985

Ask Donna

What actually matters in this document.

Text

MAR 2@ 1985

oe ALEXANDER L, STEVAS,

IN THE

Supreme Court of the United States

Ocroser Term, 1984

PEOPLE OF THE StaTE OF MICHIGAN,

Petitioner,

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF MICHIGAN

Brian E. THrepe

Chief Appellate Attorney

Jackson County Prosecutor’s Office

312 S. Jackson Street - Room 300

Jackson, Michigan 49201

(517) 788-4274

Counsel for Petitioner

Dated: March 29, 1985

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

Rudy Bladel was convicted by jury trial for the murders

of three individuals. Admitted at trial was a statement

made by Respondent during custodial interrogation. The

interrogation occurred after arraignment in the State

District Court wherein Respondent requested court ap-

pointed counsel. Respondent was advised of and \waived

his ‘‘Miranda Rights’’ prior to making the statement. The

Michigan Supreme Court found that the interrogation

violated Respondent’s Sixth Amendment right to counsel

and reversed the convictions. The questions presented are:

1. Whether the Michigan Supreme Court erred when it

held that police interrogation of a criminal defendant

after District Court arraignment was a critical stage in

the proceedings such that the Sixth Amendinent right to

the presence of counsel is applicable?

2. Whether the Michigan Supreme Court erred in hold-

ing that the Sixth Amendment of the United States Con-

stitution requires a ‘‘bright line’’ rule prohibiting police

initiated interrogation after a criminal defendant has re-

quested appontment of counsel at initial arraignment?

3. Whether the interests protected by the Sixth Amend-

ment right to counsel and the ‘‘ Fifth Amendment right to

Counsel’’ during interrogation are sufficiently similar such

that a knowing and intelligent waiver of Fifth Amendment

‘*standard Miranda Rights’’ also constitutes a knowing

and intelligent waiver of criminal defendant’s then exist-

ing Sixth Amendment rights?

TABLE OF CONTENTS

Page

QuESTIONS PRESENTED .....---+-+eeerererrrseeeetes i

TaBLE OF AUTHORITIES ......----+-seeeeeeereeeectes iil

OPINIONS BELOW ......e cece cece errr crete ereereeees 1

JURISDICTION 2.2... cece cece eee ee erent eceeeereeeee 2

ConstrruTionaL Provisions INVOLVED ......---++++-- 2

STATEMENT OF THE CASE ...--.-eeeeeeereererreccces 2

Reasons ror GRANTING THE WRIT ....-----++++++++> 7

CONCLUSION .......ccccccccccccecccccccsescscoseses 25

Appendix A—Supreme Court Opinion ........+++++- la

Appendix B—Cireuit Court Opinion .......++++++++- 37a

Appendix C-—Motion to Suppress or in Alternative for

a Walker Hearing .....-----+--sseeeerrserrees 38a

Appendix D—Digest of Conflicting Cases ......----- 4la

ili

TABLE OF AUTHORITIES

CasEs: Page

Berkemer v. McCarty, —— US ——; 104 SCt 3138,

3150 n. 27; 82 LEd2d 317 (1884) ........... 12, 1, 23

Blasingame v. Estelle, 604 F2d 893 (Fifth Cireuit

A ES OES 6, 9,11, 17,18

Brewer v. Williams, 430 US 387, 398; 51 LEd 424; 97

SE I PDS nic cvs ccc cncdnceccocccces 14

Collins v. Francis, 728 F2d 1322, 1333-1334 (Eleventh

es ee dh civécoes 21

Edwards v. Arizona, 451 US 477; 101 SCt 1880; 68

LEd2d 378 (1981) ...... 7,8, 9, 10, 11, 12, 13, 14, 15, 17,

18, 19, 20, 21, 29, 25

Johnson v. Commonwealth, 55 SE2d 525 (VA 1979) .. 9,18

Johnson v. Zerbst, 303 US 458; 58 SCt 1019; 82 LEd

EE EE a ne 12

Jordan v. Watkins, 681 F2d 1067 (CA 5, 1982) ...... 9,18

Marbury v. Madison, 5 US (1 Cranch) 137 (1803) .... 8

Michigan v. Mosley, 423 US 96; 96 SCt 321; 46 LEd2d

Re Sanne chu ayedd 64 ss cceded sede 9, 18, 19

Miranda v. Arizona, 384 US 436; 86 SCt 1602; 16 LEd

Od GB4 (1968) ........ ccc cece cece eee 11, 14, 18, 22, 23

Nash v. Estelle, 597 F2d 513 (Fifth Circuit 1979) . 6, 15, 16,

17,18

North Carolina v. Butler, 441 US 369; 99 SCt 1755; 60

SY 9

es Rp TR eee aes aye 12, 22

People v. Bladel, 413 Mich 864; 317 NW2d 855 (1982) :. 6,7

People v. Conklin, 412 Mich 518; 315 NW2d 418 (1982) 7

TasBLe or AUTHORITIES continued

Page

People v. Paintman, 412 Mich 518; 315 NW2d 418

CRS ccccccscccepigasessdddaderdsenen cancess 7

Rhode Island v. Ennis, 446 US 291, 300 Note 4; 100

SCt 1682, 1689 Note 4; 64 LEd2d 297 (1980) .... 11

Ross v. State, 36 CrL 2413 (3-6-85) ............ 8, 9, 20, 21

Silva v. Estelle, 672 F2d 457 (CA 5, 1982) ........... 18

Smith v. Illinois, 4649 US ——; 105 SCt 490; 83 LEd2d

2) | SPerrrerrrrrrrrrrrirrrr rir 16

United States v. Gouveia, —— US ——; 104 SCt 2292;

G1 LEd2d 146 (1984) ....... ccc ccccccccccccces 8,14

United States v. Henry, 447 US 264; 100 SCt 2183; 65

LIBS 115 (198D) ....ccccccccccccccccccccvess 15, 23

United States v. Karr, 742 F2d 493 (Ninth Circuit

SED ck cbcddisddcddcdscivcddedietcdacassedess 24

United States v. Wade, 388 US 218; 87 SCt 1926; 18

LEd2d 1149 (1967) 2... ccccccccccccccccccces 14, 23

CoNSTITUTIONAL PROVISIONS:

United States Constitution:

DAES UE ia cic is cc ccc ctiocccieusceces 2

Ammem@enemt BIV on. cc cccccccccccccccccccs 2

IN THE

Supreme Court of the United States

Ocroser Term, 1984

No. ——

PEOPLE oF THE StaTE oF Micuican,

Petitioner,

Rupy Bape,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF MICHIGAN

The Jackson County Michigan Prosecutor, on behalf of

the People of the State of Michigan, petitions for a Writ

of Certiorari to review the Judgment and Opinion of the

Supreme Court of the State of Michigan, rendered in

these proceedings and released on January 29, 1985.

OPINIONS BELOW

The Opinion of the Michigan Supreme Court, as yet

unreported, appears as Appendix A, infra, pp. 1-41. The

Michigan Supreme Court’s prior remand order is pub-

lished at 413 Mich. 864; 317 NW2d 855 (1982). The

Opinions of the Michigan Court of Appeals are published

at 106 Mich. App. 397; 308 NW2d 230 (1981) and 118.

Mich. App. 498; 325 NW2d 421 (1982). The Opinion of

the Circuit Court was neither published nor written, but

a copy of the relevant portion of the transcript of the

Circuit Court proceedings appears as Appendix B.

JURISDICTION

The judgment of the Michigan Supreme Court was

released on January 29, 1985. See Appendix A, infra, p. i.

This Petition was filed less than 60 days from the date

aforesaid. The jurisdiction of this Court is invoked under

28 U.S.C. See. 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Amendment VI:

‘In all criminal prosecutions, the accused shall enjoy

~ right . .. to have the assistance of counsel in his

efence.’’

Constitution of the United States, Amendment XIV,

Section 1:

‘¢ .. nor shall any state deprive any person of life,

liberty, or property without due process of law.. .’’

STATEMENT OF THE CASE

Respondent was convicted of the December 31, 1978

shotgun slayings of three railroad employees at the train

depot in Jackson, Michigan. Respondent, a prime suspect

in the slayings, was questioned by the police on January

1, 1979 and January 2, 1979. Before each interview Re-

spondent was advised of his ‘‘ Miranda rights’’ which he

waived each time. (WHT 5, 8, 10 T 528, 532). During the

first interview Respondent admitted that he was present

in Jackson on December 31. (WHT 9, T 530). In the

second interview he admitted that he had gone into the

train depot on the day of the murders, but did not admit

any involvement in the murders. (WHT 11-15, T 533-537).

There was no further police contact with Respondent

until March of 1979 when a shotgun was found on the

outskirts of Jackson and was scientifically determined to

be the murder weapon. Federal firearms records showed

that Respondent had purchased the shotgun in Indiana.

(T 538). A warrant was issued for the arrest of Respond-

ent. He was arrested in Elkhart, Indiana on March 22,

1979. (WHT 15). Respondent waived extradition from

Indiana. (T 539, WHT 22-23). During the waiver hear-

ing, Respondent was advised of, but declined, the right to

representation by counsel. (T 539, 572, 683-684, WHT

22-23).

Respondent was not questioned about the crime until he

arrived back in Jackson on the 22nd. That evening, from

9:21 p.m. until 10:47 p.m., Respondent was interviewed

by Jackson police. (T 540-575). Prior to this interview,

Respondent was advised of his rights including his right

to consult a lawyer before answering any questions, to

have a lawyer present during questioning, the right to

have an attorney appointed and an absolute right to stop

the questioning at any time. (T 541-542, WHT 16-19).

Detective Rand also read to Respondent a written rights

form which Respondent also read. Respondent signed the

acknowledgment and waiver portion of the advice of rights

form (indicating that he would talk to the police), waiv-

ing the presence of an attorney. (T 542, WHT 19). This

questioning was terminated when Respondent failed to

answer any further questions. (T 545, WHT 21).

The Respondent was arraigned in District Court on

March 23, 1979, at about 10:35 a.m., in the presence of

Detective Rand. (District Court Arraignment p 2). The

pertinent events at arraignment are recorded as follows:

Tue Court: Now, becuase these are very serious

charges which are brought against you, you have a

right to be represented by an attorney, at all stages

of the pr ings, including the preliminary exami-

nation I just mentioned. If you want one. If you can-

not afford an attorney, then you may petition the

Circuit Judge of this County for the appointment of

an attorney to represent you at public expense. Now

my first question to you is this. Do you intend to

retain your own attorney?

Tue Derenpant: I don’t have the money.

Tue Court: Do you wish to have one appointed for

you?

Tue Derenpant: Yes, sir.

Txe Covst: All right sir. I’ll place an affidavit in

the file for you to make out for that purpose. Until

you have a chance to talk with an attorney, the Court

would strongly recommend that you stand mute, that

mean: say nothing. If you do this, the Court will

enter a plea of not guilty for you and set the matter

~ a yaamenaed examination. Is that what you wish

to do?

Tae Derenvant: Right sir.

(Arraignment Transcript p 4).

On March 26, 1979, Sergeant Richard Wheeler and

Lieutenant Ronald Lowe interviewed the Respondent in

the County Jail. (T 589, WHT 31). The Respondent was

given a copy of an advice of rights form to read while

Wheeler read another copy to Respondent. (WHT 32).

The Respondent was advised of each right individually.

(WHT 33-34). He responded affirmatively when asked if

he understood each right. (WHT 33-34). Respondent was

then read the waiver portion of the form, which he in-

dicated he understood. Respondent signed the waiver and

said he did not want an attorney present at that time.

(WHT 34). At no time during the interview did the Re-

spondent ask to have an attorney present or to contact

an attorney. (WHT 35). Neither Wheeler nor Lowe were

aware of Respondent’s request for appointment of counsel

made at arraignment until Respondent told them at the

point during the advice of rights when counsel is men-

tioned. (WHT 39-40). Respondent was then specifically

asked if he wanted an attorney present at that time and

the Respondent stated, ‘‘No.’? (WHT 41). Wheeler testi-

fied that when the Respondent mentioned that he had

asked for court appointed counsel Wheeler asked Respond-

ent if he wanted an attorney present, to which Respondent

replied, ‘‘I do not need one.’?’ (WHT 48). Lic ‘tenant

Lowe testified to this recollection of the eventr -

Mr. Bladel at this time stated that he had requested

an attorney at his arraignment, but he hadn’t seen

him, seen the attorney yet, that he would talk to us,

and he said he would talk to us, and he said he didn’t

need his attorney there while he was talking to us.

(WHT 47).

Q: Was there any mention of an attorney at this

time?

A: I asked him if he desired his attorney present

and he stated he did not need one.

Q: What, if anything, further took place then?

A: In addition to the last statement that Mr. Bladel

said, when I asked him if he needed his attorney

-present he stated, ‘I don’t need him present. I’m

going to plead guilty anyway.’ (WHT 54).

During this interview, Respondent confessed to the three

murders.

Respondent did not have any contact with his attorney

until the day after his confession. (WHT 67-68). In addi-

tion to the times he was advised of his rights in connection

with this case, Respondent had been advised of his rights

previously and was aware of his rights from this past

experience. (WHT 71).

History of Raising of Federal Questions

Respondent preserved his challenge to the constitution-

ality of the confession by way of a pre-trial ‘‘ Motion to

Suppress or in the Alternative for a Walker* Hearing.’’

The hearing was granted and held on July 5, 1979. After

hearing the testimony at the Walker hearing, the trial

court found the confession admissible:

Now I understand the position of the Defendant to

the effect that he did demand counsel on March 23 at

his arraignment in District Court. Now, whether or

not counsel was appointed by March 26, incidently

March 23, 1979 was a Friday and March 26, 1979 was

a Monday, and, whether or not counsel had been ap-

pointed and had an opportunity to consult with the

defendant before the interrogation does effect the

voluntariness and the effectiveness of the waiver of

the rights.

Now, I don’t know of any case why (sic) counsel had

been appointed but hadn’t had a chance to consult

with the defendant before he was again interrogated

and didn’t have a chance to either advise the defend-

ant that he should not say anything without the pres-

ence of counsel. But, there is no case that I know of

that says Miranda goes that far so the holding is that

the testimony or the substance of the statements of all

three occasions and the confessions will be admissible.

(WHT 108-109). (Appendix B, infra).

The constitutional question was raised in Respondent’s

appeal of right to the Michigan Court of Appeals, which

affirmed following the reasoning of the Fifth Circuit cases

of Nash v. Estelle, 597 F2d 513 (5th Cir. 1979) and Blasin-

game v. Estelle, 604 F2d 893 (5th Cir. 1979). People v.

Bladel, 106 Mich. App. 397; 308 NW2d 230 (1981). The

Michigan Supreme Court, in lieu of granting Respondeni’s

Application for Leave to Appeal, remanded to the Court of

* People v. Walker, 374 Mich. 331 (1965), see motion, Appendix C,

infra.

Appeals for reconsideration in light of People v. Paintman

and People v. Conklin, 412 Mich. 518; 315 NW2d 418

(1982), decided in the interim, which adopted this Court’s

holding in Edwards v. Arizona, infra. People v. Bladel,

413 Mich. 864; 317 NW2d 855 (1982). On remand, the

Court of Appeals summarily reversed concluding that

Paintman and Conklin, supra, read in light of the remand

order ‘‘compelled’’ reversal. People v. Bladel, 118 Mich.

App. 498; 325 NW2d 421 (1982).

The Michigan Supreme Court granted Petitioners Ap-

plication for Leave to Appeal on the issue that the con-

fession in the instant case was not taken in violation of

Respondent’s Fifth Amendment rights. The Michigan Su-

preme Court agreed that Respondent’s Fifth Amendment

rights were not violated, but held that Respondent’s Sixth

Amendment rights were violated by police-initiated inter-

rogation after Respondent had requested court appointed

counsel at his initial arraignment. People v. Bladel slip

opinion Appendix A p. 18. The Court concluded that the

Sixth Amendment precludes further police-initiated inter-

rogation after a request for counsel is made to a judicial

officer by ‘‘analogy’’ to this Court’s case of Edwards v.

Arizona, mfra, which requires such preclusion under the

Fifth Amendment where the defendant requests counsel

during custodial interrogation.

REASONS FOR GRANTING THE WRIT

1. Conflicting decisions by both Federal and State courts

require this Court’s resolution of the questions presented

by Petitioner.

It is imperative that this Court address the issues

raised in this Petition. The issues are ones of substantial

questions of Federal Constitutional Law. Lower State and

Federal courts have reached differing, and in some cases

diametrically opposed results. A final, authoritative ruling

is needed. (See Appendix A, page 41).

This Court has not previously addressed the specific

issues raised in this Petition. Only this Court has the

authority to render a conclusive and binding decision as

final arbiter of the United States Constitution. Marbury v.

Madison, 5 U.S. (1 Cranch) 137 (1803) ; McCulloch v. Mary-

land, 17 U.S. (4 Wheat) 316 (1819).

Essentially, the holdings of the Michigan Supreme

Court in this case are that (1) a request at District Court

arraignment for the appointment of counsel is an invoca-

tion by Defendant of his Sixth Amendment right to coun-

sel, and that (2) the Sixth Amendment requires a ‘‘bright

line’’ rule prohibiting police initiated interrogation after

Defendant has invoked his Sixth Amendment right to

counsel at District Court arraignment. The Michigan Su-

preme Court’s holding that a request for counsel at

arraignment prevents further police initiated interrogation

is the first such decision according to Petitioner’s re-

search. This analogous extension of the rule of Edwards

v. Arizona, 451 US 477; 101 SCt 1880; 68 LEd2d 378

(1981), is contrary to the holdings of other cases.

The recent Georgia Supreme Court case of Ross v.

State, 36 CrL 2413 (3-6-85) dealt with the same issues

presented in the instant case. There, Defendant Ross had

spoken with police on several occasions. Two days after

his last statement to police, Ross made his ‘‘first appear-

ance’’ before a Magistrate. This appearance was in a

non-adversarial setting and therefore the Georgia Su-

preme Court concluded that the Sixth Amendment right

to counsel had not attached, relying on this Court’s case

of Umted States v. Gouveia, —— US ——, 104 SCt 2292,

81 LEd2d 146 (1984). At that initial appearance, Defend-

ant Ross declined the appointment of counsel but asked

for additional time within which to retain his own counsel.

The Georgia Supreme Court, in responding to Defendant

Ross’s Fifth Amendment claim, ruled as Petitioner con-

tended in the Michigan Supreme Court, that in light of

the fact that the defendant had never requested counsel

while being interrogated by police nor did he request that

interrogatio:. cease for any reason and defendant did not

at this first appearance indicate an intention not to deal

with police except through counsel, Edwards v. Arizona

is not applicable. Under the circumstances of the Ross

case, voluntariness of the confession must be determined

under North Carolina v. Butler, 441 US 369; 99 SCt 1755;

60 LEd2d 286 (1979) rather than under the per se rule

of Edwards v. Arizona. The Georgia Supreme Court’s

holdings are in conflict with the instant case.

In Johnson v. Commonwealth, 255 SE2d 525 (VA 1979),

the Virginia Supreme Court reaffirmed its prior holding

that ‘‘police may question an accused who has counsel,

retained or appointed, whether or not the attorney is pres-

ent.’’ Johnson, supra, 255 SE2d at 531. The Johnson facts

are on all fours with the case at bar. Johnson was ar-

rested, advised of his rights, waived those rights and

spoke with police. The following day Johnson was ar-

raigned, claimed indigency, requested and was granted

court appointed counsel. After arraignment, an officer, un-

aware of request for counsel at arraignment, interviewed

defendant after advice and waiver of Miranda rights. The

Virginia Supreme Court concluded that, under these facts,

Johnson’s ability to exercise his right to counsel was scru-

pulously honored under Michigan v. Mosley, 423 US 96; 96

SCt 321; 46 LEd2d 313 (1975) and therefore the confes-

sion was properly admitted.

The Fifth Circuit addressed this issue in several cases

including Jordan v. Watkins, 681 F2d 1067 (CA 5, 1982).

In Jordan, defendant had been appointed counsel before

he confessed during police initiated interrogation. The

court found Edwards inapplicable. Edwards was inter-

preted as prohibiting police conduct which ‘‘impinged on

the exercise of the suspect’s continuing right to cut-off

interrogation.’’ Jordan, supra, 681 F2d at 1073, quoting

from Blasingame v. Estelle, 604 F2d 893 (Fifth Circuit

1979). The Jordan Court rejected defendant’s Fifth and

Sixth Amendment challenges, finding defendant’s experi-

ence and advice and waiver of Miranda rights sufficient

for a knowing, intelligent and voluntary waiver of Fifth

and Sixth Amendment rights to the presence of counsel.

Several other cases have dealt with the implications of

police-initiated interrogation after a request for counsel at

arraignment. These cases address the direct holdings of

the Michigan Supreme Court and the implicit holding that

Miranda warnings are inadequate for establishing a know-

ing, intelligent and voluntary waiver of the Sixth Amend-

ment right to the presence of counsel during interrogation.

Petitioner requests that this Court review the implicit

holding as well as the explicit holdings of the Michigan

Supreme Court so that a cemplete resolution of the case

made be had. (Many of the cases which have ruled on the

relevant issues are capsulized in Appendix D.)

2. The Michigan Supreme Court, in deciding that the Sixth

Amendment required, by analogy to Edwards vy. Arizona,

that police be prohibited from initiating interrogation

after a defendant has requested counsel at arraignment,

ruled inconsistently with prior decisions of this Court and

this Court would probably decide the issues presented

differently.

Despite the Michigan Supreme Court’s accurate under-

standing that a request for counsel at arraignment does

not have Fifth Amendment implications, that court none-

theless applied the rule of this Court’s Fifth Amendment

case of Edwards v. Arizona, 451 US 477; 101 SCt 1880;

68 LEd2d 378 (1981). Rather than being an analogous

application of the Edwards rationale, the Michigan Su-

preme Court directly applied the result of Edwards to an

analytically distinct circumstance, resulting in a perver-

sion rather than a progression of the Edwards rationale.

This Court limited its analysis of Edwards to the Fifth

Amendment. Edwards v. Arizona, supra, 451 US at 480 n.7;

101 SCt at 1883 n.7. The Michigan Supreme Court, how-

ever, found the analysis of the instant case to be confined

to the Sixth Amendment. (See Appendix A, page 1la). The

Fifth and Sixth Amendment rights are separate and dis-

tinct requiring different analyses. Rhode Island v. Ennis,

446 US 291, 300 note 4; 100 SCt 1682, 1689 note 4; 64

LEd2d 297 (1980). Rather than applying the reasoning of

Edwards by analogy, the Michigan Supreme Court merely

adopted the identical rule of Edwards in this distinct

Sixth Amendment setting. For such a direct adoption of

the rule under the Fifth Amendment to be appropriate in

this Sixth Amendment case, the circumstances of the

invocation of the Sixth Amendment right must be the

same as the invocation of the Fifth Amendment right and

the interest protected by both rights must also be identical.

The progression of a logical analysis of this case must

begin with the underlying principles and protections

afforded by the Fifth Amendment, followed by a close

examination of how Edwards v. Arizona protects those

Fifth Amendment rights and then an examination of the

Sixth Amendment followed by application of Edwards to

the Sixth Amendment setting to see if the Fifth Amend-

ment remedy is appropriate in this Sixth Amendment

case.

The Fifth Amendment right to counsel is a narrow one.

It is the right to ‘‘confer with or have counsel present

before answering any questions’’ during custodial inter-

rogation. Blasingame v. Estelle, 604 F2d 893, 896 (CA 5)

(1979). The Fifth Amendment right to counsel was fully

developed by this Court in Miranda v. Arizona, 384 US

436; 86 SCt 1602; 16 LEd2d 694 (1966). The Miranda

case essentially applied the principles which formed the

basis for the Fifth Amendment right against compelled

testimony (belief that compelled testimony is inherently

unreliable and that Star Chamber style compulsion of a

defendant to give evidence which ‘‘makes’’ the state’s

case against the individual offends our sense of justice)

to the setting of custodial interrogation with its presumed

inherent, psychological compulsion. Oregon v. Elstad, ——

US ——-; 53 LW 4244, 4247 (3-5-85). The Miranda court

ruled that custodial interrogation could only produce vol-

untary statements when the confessor has knowingly and

intelligently waived his expanded Fifth Amendment

rights. The Court found essential to the protection of

these rights, the right to the presence of an attorney

during custodial interrogation. However, the right to

counsel can also be waived. The Johnson v. Zerbst, 303

US 458; 58 SCt 1019; 82 LEd 1461 (1937) standard is

presumptively met by advise and waiver of ‘‘ Miranda

warnings.’’ The Fifth Amendment right to counsel pro-

tects defendants in the exercise of their right to remain

silent assuring that any statements are not obtained

through coercion or trickery. Berkemer v. McCarty, ——

US ——-; 104 SCt 3138, 3150 n.27; 82 LEd2d 317 (1984).

In light of the narrow scope of the Fifth Amendment

right to counsel, an assertion of that right by a criminal

defendant is equally narrow. When a defendant requests

counsel during custodial interrogation, it is clearly the

defendant’s will not to speak to police without the pres-

ence of counsel. The invocation of the Fifth Amendment

right to counsel is no less and no more than precisely that.

The narrow scope of the Fifth Amendment right to

counsel is the key to a right understanding of Edwards v.

Arizona, supra. In Edwards, the defendant made a re-

quest for counsel to police during interrogation. Edwards,

supra, 451 US at 479; 101 SCt at 1882. The next morning,

a guard came to Edwards’ cell to inform him of the de-

tectives’ desire to talk to him. Edwards replied that he

did not want to talk, but the guard told him that he had

to. Edwards, id. The guard took Edwards to meet with

the detectives. Edwards was advised of his ‘‘Miranda

rights,’’ which he waived, then Edwards confessed. Ed-

wards, id.

Mr. Justice White’s Opinion in Edwards focused on

what constitutes a knowing and intelligent relinquishment

or abandonment of a known right or privilege. Edwards,

supra, 451 US at 482; 101 SCt at 1884. A defendant can-

not, in the legal sense of voluntariness, waive his right

to counsel unless he knows and fully understands that

right. Police conduct in the Edwards case brought into

question whether the relinquishment of the right to coun-

sel was knowing and intelligent. The effect of the Miranda

Rule is to make the police the legal advisor of a defend-

ant in the initial phase of custodial interrogation. Thus,

Edwards was depending on the police as the source of

his knowledge of his legal rights. Edwards certainly could

have been confused as to what his rights were because

of inconsistent police conduct.

The initial cessation of interrogation upon Edwards’

request for counsel would indicate to Edwards that the

right to the presence of counsel truly did exist and that

the police would honor that right. However, the later re-

interrogation (especially in light of the comment of the

jailer that Edwards must talk) was at least an implicit

statement by the police that defendant did not have the

right to the presence of counsel at interrogation or at

the very least that they would not honor that right if it

existed. This inconsistent police conduct could bring con-

fusion into the defendant’s mind precluding a knowing

and intelligent waiver.

Additionally, the waiver in Edwards is drawn into ques-

tion because police initiated reinterrogation is a request

by police that the defendant abandon in its totality the

very specific and narrow right to the presence of counsel

that the defendant had previously invoked. Inconsistent

behavior is asked of the defendant. Thus, the voluntari-

ness of this confession is called into question because any

change of mind by defendant has come at the behest of

the police. Police initiated interrogation after a defend-

ant’s request for counsel, violates the rule of Miranda

that if an accused requests the presence of counsel, ‘‘the

interrogation must cease until an attorney is present.”’’

Miranda, supra, 384 US 474; 86 SCt 1627. Reinterrogation

in these circumstances directly impinges upon the de-

fendant’s Fifth Amendment right to the presence of coun-

sel as established in Miranda. As recognized by this Court

in Edwards, the request made by Edwards ‘‘expressed

his desire to deal with the police only through counsel...’’

Edwards, supra, 451 US 486; 101 SCt 1885. The reappear-

ance of police without the presence of counsel, impinged

on that right. Police initiated interrogation after the in-

vocation of the Sixth Amendment right to counsel by re-

quest for court appointed counsel at arraignment does

not so impinge on a defendant’s rights.

The scope of the Sixth Amendment right to counsel is

very different from that of the Fifth Amendment right

to counsel. The Sixth Amendment right to counsel is the

right to have an attorney appointed to represent the de-

fendant through the judicial proceedings once they have

reached a critical state. Brewer v. Williams, 430 US 387,

398; 51 LEd2d 424; 97 SCt 1232, 1239 (1977). United

States v. Gouveia, —— US ——-; 104 SCt at 2292 (1984).

The Sixth Amendment right to counsel extends both to

the courtroom and to those critical stages of the judicial

process where the assistance of counsel is needful for the

protection of defendant’s later rights. See United States

v. Wade, 388 US 218; 87 SCt 1926; 18 LEd2d 1149 (1967).

It is within this broad scope of the Sixth Amendment

right to counsel that there becomes overlap with the Fifth

Amendment right to counsel. The Fifth Amendment right

to counsel extends to all custodial interrogation whether

before or after the judicial process has reached a critical

stage. The Sixth Amendment right to counsel includes the

right to the presence of counsel during ‘‘post-indictment

communications between the accused and agents of the

government’’ whether or not the defendant is in custody

at the time of the interrogation. United States v. Henry,

447 US 264; 100 SCt 2183; 65 LEd2d 115 (1980).

It appears that the appropriate questions to be posed,

in order to determine the validity of the Michigan Su-

preme Court’s analogous application of Edwards to an

assertion of Sixth Amendment right to counsel, is whether

a general request for counsel in the exercise of a defend-

ant’s Sixth Amendment rights necessarily indicates a de-

sire by the defendant to deal with the police only through

counsel as in Edwards such that subsequent police initi-

ated interrogation both negates the defendant’s knowledge

and understanding of his right to counsel aud is, in effect,

a request that the defendant act inconsistently with his

request for counsel at arraignment. Numerous cases have

dealt with these questions and many have concluded that a

general request for counsel at arraignment is not such

that it effectively exercises a right to preclude subsequent

interrogation.

The facts of the Fifth Circuit case of Nash v. Estelle,

597 F2d 513 (Fifth Cireuit 1979) are very helpful in see-

ing a circumstance in which a defendant clearly articulates

both a desire to have counsel represent him during the

judicial process and also to speak with the authorities

without the presence of counsel. The following is an ex-

cerpt from an interview by an Assistant Prosecutor six

days after Nash was arrested on a murder charge:

(Prosecutor Files)

Files: You want one to be appointed for you?

Nash: Yes, sir.

Files: OK. I had hoped that we might talk about

this, but if you want a lawyer appointed, then we

are going to have to stop right now.

Nash: But, uh, I kinda, you know, wanted, you know

to talk about it, you know, to kinda you know, try

to get it straightened out.

Files: Well, I can talk about it with you and I

would like to, but if you want a lawyer, well, I am

going to have to hold off, I can’t talk to you. It’s your

life.

Nash: I would like to have a lawyer, but I’d rather

talk to you.

Files: Well, what that says there is, it doesn’t say

that you don’t ever want to have a lawyer, it says

that you don’t want to have a lawyer here, now. You

got the right now, and I want you to know that. But

if you want to have a lawyer here, well, I am not

going to talk to you about it.

Nash: No, I would rather talk to you.

Files: You would rather talk to me? You do not

want to have a lawyer here right now?

Nash: No, sir.

Files: You are absolutely certain of that?

Nash: Yes, sir. (Nash, supra, at 516-517).

The subsequent taped confession was found to be ad-

missible on the basis that it was permissible for defendant

to unburden himself by confessing to his custodians, Nash,

at 517, while still maintaining his right to be represented

during judicial proceedings. This Court’s decision in

Smith v. Illinois, 4649 US ——, 105 SCt 490; 83 LEd2d 488

(1984) calls into question the admissibility of this state-

ment because of the rather clear request for counsel

initially made. Nonetheless, this case remains illustrative

of an individual’s desire to speak directly with police

while maintaining the remainder of the incidents of the

right to counsel.

The Fifth Circuit applied the Nash reasoning in a case

with facts strikingly similar to those in the instant case.

In Blasingame v. Estelle, 604 F2d 893 (CA 5) (1979),

Defendant Blasingame was arrested late at night and

arraigned the following morning. At that arraignment,

he was advised of his right to counsel and filled out a

form requesting a court appointed attorney. That night, a

Dallas police officer interviewed Blasingame after having

advised Blasingame of his Miranda rights which Blasin-

game knowingly and intelligently and voluntarily waived.

On appeal, Blasingame asserted that a Fifth Circuit

predecessor of Edwards v. Arizona precluded questioning

after his unequivocal request for counsel at arraignment.

The Blasingame court saw the issue this way:

In evaluating this argument, the crucial inquiry is

whether defendant asserted his right to counsel in

such a manner that later police inquiry ‘has impinged

on the exercise of the suspect’s continuing option to

cut off the interview.’

Nash v. Estelle, 597 F2d 513, 518 (CA 5) (1979).

(Blasingame at 895).

The Blasingame court found that the right to counsel

asserted by the defendant was not one that precluded

later police initiated interrogation and thus the rights

asserted at arraignment were not impinged by the later

inquiry. The Blasingame court said ‘‘Nash recognizes that

some defendants may well wish to have an attorney to

represent them in legal proceedings, yet wish to assist

the investigation by talking to an investigating officer

without an attorney present.’’ (Blasingame, supra, at

895-896). After noting that the assertion of the right to

counsel at arraignment was unrelated to his Fifth Amend-

ment right to confer or have counsel present during cus-

todial interrogation, the Blasingame court held that:

Therefore, we hold that the request for an attorney

at arraignment does not prevent subsequent station-

house interrogation where the request at arraignment

is not made in such a way as to effectively exercise

the right to preclude any subsequent interrogation.

(Blasingame, supra, at 896)*

Nash and Blasingame like Jordan, supra and Johnson

v. Commonwealth, supra, found that there was so little

connection between the request for counsel at arraignment

in exercise of the Sixth Amendment right to counsel and

subsequent interrogation, that subsequent interrogation

does not impinge on the right previously exercised. The

Virginia Supreme Court in Johnson v. Commonwealth,

supra, looked for guidance in this court’s case of Michigan

v. Mosley, 423 US 96; 96 SCt 321; 46 LEd2d 313 (1975).

Michigan v. Mosley, provides far more guidance for the

determination of whether the defendant’s rights were vio-

lated in the instant case than does Edwards v. Arizona,

due to the tremendous contrast between the Edwards

situation and that in the instant case.

In Michigan v. Mosley, supra, the defendant was ar-

rested on a number of robbery charges. A Detective Cowie

interviewed the defendant about the robberies. During

that interrogation, defendant Mosley exercised his right to

remain silent, rather than his right to the presence of

counsel. Two hours later, Detective Hill initiated inter-

rogation of Mosley in reference to an unrelated homicide.

The second interrogation began with advice and waiver

of Miranda rights. On appeal, Mosley claimed that his

assertion of the right to remain silent, made to Detective

Cowie, precluded further police initiated interrogation.

This court found that Mosley’s rights had not been

_ violated.

1 There are a number of cases which, though not without their problems

in regard to the clarity of the rule therein applied, arguably involve cir-

cumstances where the request at arraignment has a close nexus to an

invocation of right to the presence of counsel during interrogation. These

cases are generally ones where the request for counsel follows the arraign-

ing Magistrate’s recitation of Miranda warnings. (e.g., Silva v. Estelle,

672 F2d 457 (CA 5, 1982).

The focus of this court’s decision in Mosley was whether

the defendant’s ‘‘ ‘right to cut off questioning’ was fully

respected in this case.’’ Michigan v. Mosley, 423 US 103;

96 SCt.327. The court found that the defendant’s rights

were fully respected. Miranda did not state when inter-

rogation could be resumed after an exercise of the right

to remain silent. This court refused to hold that an exer-

cise of the right to remain silent precludes all further

interrogation. Neither would this court allow reinterroga-

tion after a momentary pause. Mosley, supra, 423 US

107 ; 96 SCt 328. Thus, Mosley added to Miranda the rule

that the right to remain silent prevents further police

initiated interrogation until there has been a significant

period during which the questioning has been suspended.

Another aspect of the reasoning in Mosley is that the

defendant’s exercise of his right to remain silent made

during questioning by Detective Cowie was, at the most,

ambiguous as to whether Mosely was desirous of talking

about any other crimes. The court noted that in these

circumstances, questioning on an unrelated crime was

‘*quite consistent with a reasonable interpretation of Mos-

ley’s earlier refusal to answer any questions about the

robberies.’’ Mosley, 423 US at 105; 96 SCt at 327. The ad-

vice of Miranda rights before the second interrogation gave

the defendant a full and fair opportunity to once again

invoke his right to remain silent. The subsequent advice

of rights, though placing a minor burden on the defendant

of having to once again assert his right to remain silent

if that was his desire, was heavily outweighed by the

beneficial value of resolving any ambiguity in the defend-

ant’s previous invocation of his right to remain silent.

The facts and reasoning of Mosley are far more in accord

with the instant case than is Edwards v. Arizona.

In the instant case, Respondent’s request for counsel at

arraignment does not necessarily indicate that defendant

desires to only deal with police through counsel, the clear

indication by the defendant in Edwards. Thus, subsequent

questioning by the police was ‘‘quite consistent’’ with

Respondent’s previous request for counsel. Since the in-

dividuals who interrogated Respondent did not have pre-

vious contact with Respondent, their actions of reinitiating

interrogation were not inconsistent with any previous

statements that they had made; thus, defendant could not

reasonably believe that his rights would not, in fact, be

honored. The burden placed on Respondent in the instant

case is no greater than that placed on Mosley. Mosley

could have protected himself from the subsequent inter-

rogation by restating his desire to remain silent. In the

instant case, defendant was readvised of Miranda rights

and the interviewing detectives gave a full and fair oppor-

tunity for defendant to exercise his right to the presence

of counsel. Defendant refused to do so. The great benefit

in resolving the ambiguity of defendant’s request for

counsel at arraignment far outweighed any burden placed

on defendant by requesting him to make the simple state-

ment when advised of bis Miranda rights that he does not

want to talk without counsel. In the circumstances of the

instant case, Respondent’s Sixth Amendment rights were

scrupulously honored. The waiver of his right to the

presence of counsel during interrogation was knowingly,

intelligently and voluntarily made. The Michigan Supreme

Court erred in ruling that admission of Respondent’s con-

fession was reversible error.

The argument stated here is in accord with the reason-

ing of the Georgia Supreme Court in Ross v. State, supra.

In Ross, the defendant had repeatedly spoken with police

officers without requesting the presence of counsel. This

is the same behavior as that of Respondent in the instant

ease. The Georgia Supreme Court, while recognizing that

a defendant need not state preciously why he wants an

attorney that if he does request an attorney, ‘‘surely from

the circumstances of such a request we can find guidance

as to the accused’s state of mind, which is the key volun-

tariness inquiry.’’ Ross v. State, supra, 36 CL 2413. Quot-

ing from Collins v. Francis, 728 F2d 1322, 1333-1334

(Eleventh Circuit 1984). In the circumstances of this case,

it is clear that the accused’s state of mind was such that

he only wanted counsel to represent him during the ju-

dicial proceeding and not during custodial interrogation.

The general request for appointment of counsel in exer-

cise of Sixth Amendment rights at arraignment is so

different from the narrow and specific request for the

presence of counsel during custodial interrogation under

the Fifth Amendment that an analogous application of the

rules of Edwards v. Arizona is totally inappropriate in

this Sixth Amendment case. The Michigan Supreme

Court’s Sixth Amendment ruling is not required by the

prior cases of this court, is contrary to the prior cases of

this court and is contrary to the way that this court would

decide this case were it to grant plenary review.

Even if this Court’s prior cases support an analogous

Sixth Amendment rule to the Fifth Amendment rule of

Edwards, the Michigan Supreme Court’s rule is not it.

This Court has pursued a steady course of balancing tne

rights of criminal defendant’s against the interests of

justice over the last several years. Perhaps the most help-

ful aspect of this course has been the establishment of

‘bright line’’ rules to guide the conduct of police. The

importance of ‘‘bright line’’ rules was emphasized recent-

ly in Berkemer v. McCarty, supra. In Berkemer, this Court

ruled that Miranda rights must be given at the point of

custody determined by an objective test. This rule estab-

lishes a bright line consistent with Miranda and Edwards.

Common to all the ‘‘bright line’’ decisions of this Court

is that the police officer, whose conduct is controlled by

the rule, is present and able to ascertain from the events

he witnesses what course of action he can take without

violating the defendant’s constitutional rights. In Ed-

wards, the request for counsel is made directly to police

during interrogation. The request to police is the event

that precludes further police interrogation. The rule cre-

ated herein by the Michigan Supreme Court is inapposite.

The request herein was made to a judicial officer, in cir-

cumstances where police are not necessarily present, yet

the Michigan Supreme Court would have the request con-

trol police conduct. Such a rule obscures rather than clari-

fies. The police are not always privy to the facts upon

which they must base their actions. This is no ‘‘bright

line,’’ it is a ‘‘black hole.’’

Confessions, voluntarily made, are relevant and proba-

tive evidence. This Court said in Oregon v. Elstad, supra,

‘‘voluntary statements ‘remain a proper element of law

enforcement.’ Miranda v. Arizona, 384 U.S. at 478. ‘In-

deed, far from being prohibited by the constitution, ad-

missions of guilt by wrongdoers, if not coerced, are in-

herently desirable... .’’’ Oregon v. Elstad, 53 Law Week

at 4246. The Michigan Supreme Court’s rule would result

in suppression of relevant evidence where the constable

has not even bungled. The rule cannot stand.

3. Necessery to the resolution of the issues raised in this

Petition, is for this Court to determine whether the sub-

stance of the rights contained in standard Miranda warn-

ings are adequate to constitute a waiver of both Sixth

Amendment and Fifth Amendment rights to the presence

of counsel during interrogation.

The Michigan Supreme Court has held that once the

Sixth Amendment right to counsel has attached, the de-

fendant may choose to reinitiate communication with the

police, but before a confession will be admissible even

where defendant has initiated a communication, the de-

fendant must be sufficiently advised of both his Fifth and

Sixth Amendment rights so as to ‘‘effecuate a voluntary,

knowing, and intelligent waiver of each right.’’ Bladel at

18. The Michigan Supreme Court was not so kind as to

inform police and prosecutors as to-the nature of the

Sixth Amendment rights waived during interrogation. The

Michigan Supreme Court discussed without deciding the

split of authority over whether the content of Miranda

warnings are sufficient to waive the Sixth Amendment

right to counsel. Petitioner submits that the content of

the Miranda warnings are adequate to provide a basis

for knowing, intelligent and voluntary waiver of the Sixth

Amendment right to the presence of counsel at post-

arraignment interrogation.

As noted above, the Miranda right to the presence of

counsel during custodial interrogation is a means of pro-

tecting the defendant in the exercise of his Fifth Amend-

ment rights. This court has noted in Berkemer v. McCarty,

—- US ——, 104 SCt 3138, 3150, note 27, 82 LEd2d 317

(1984) that one of the purposes of the Miranda rule is to

protect the defendant from confessions elicited through

trickery. The pre-trial Sixth Amendment right to counsel

is intended to preserve the defendant’s ‘‘basic right to a

fair trial as affected by his right meaningfully to cross-

examine the witnesses against him and to have effective

assistance of counsel at the trial itself.’’ United States v.

Wade, supra, 388 US at 227; 87 SCt at 1932. It would ap-

pear that the Fifth and Sixth Amendment rights in this

narrow area of overlap are identical. Both extend the right

to counsel for the purpose of protecting in all ways the

rights of the criminal defendant as they arise in the

context of custodial interrogation. More specifically, the

Fifth Amendment right, as articulated in Miranda, is the

right to the presence of counsel during custodial interroga-

tion. The Sixth Amendment right, as articulated in United

States v. Henry, supra, 447 US at 269; 100 SCt at 2186,

is the right to have counsel present during post-indictment

communications. In the instant case, the post-arraignment

communications were in the context of custodial inter-

- rogation. Being post-arraignment, there is no doubt in the

Defendant’s mind that he has been charged with a crime

and what that crime is. His only right under either the

Fifth or Sixth Amendment is to the presence of counsel.

The Miranda warnings so advised Respondent. In the

instant case, Respondent was informed of the full scope

of his rights in regard to counsel during these commu-

nications which right is to the presence of counsel. Re-

spondent specifically waived that right and therefore in the

context of the instant case, Miranda warnings clearly

suffice for a knowing, intelligent and voluntary waiver of

both Respondent’s Fifth and Sixth Amendment rights to

counsel.

The argument above is in accord with the case of United

States v. Karr, 742 F2d 493, (Ninth Circuit 1984). The

Karr court noted that the Sixth Amendment right to

counsel is analytically distinct from the Fifth Amendment

right to counsel. Karr at 495. However, after reviewing

a number of cases on this point, the court concluded that

Miranda warnings were sufficient to constitute a waiver

of Sixth Amendment rights to counsel. Karr at 496. In

Karr, the defendant was aware that formal judicial pro-

ceedings had begun, was given Miranda warnings and

waived those before confessing. Th. court concluded that

this was a valid waiver of the defendant’s Sixth Amend-

ment rights.

Petitioner requests that this Court address this issue

and decide in Petitioner’s favor so that a full resolution

of this case may be had without the necessity of a return

to this Court for clarification of this question.

CONCLUSION

There is a tremendous conflict both in State and Federal

courts regarding the effect of this Court’s rule in Edwards

v. Arizona in the Sixth Amendment context. This conflict

includes both questions as-to whether police initiated in-

terrogation can properly follow a request for counsel at

arraignment and whether standard Miranda warnings

would suffice as a basis for a knowing, intelligent and

voluntary waiver of Sixth Amendment rights. In address-

ing the first of these issues, the Michigan Supreme Court

ignored the reasoning of Edwards and directly applied

the Edwards result in an analytically distinct case. This

Court would most likely decide the issues presented dif-

ferently than they were decided by the Michigan Supreme

Court. In light of the errors by the Michigan Supreme

Court and the conflict which can only be resolved by this

Court, Petitioner respectfully prays that this Court will

issue a Writ of Certiorari to the Michigan Supreme Court

in the instant case.

Respectfully submitted,

Brian E. Turepe (P32796)

Chief Appellate Attorney

Jackson County Prosecutor’s Office

312 S. Jackson Street - Room 300

Jackson, Michigan 49201

(517) 788-4274

Counsel for Petitioner

Dated: March 29, 1985

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing was

served upon Ronald J. Bretz, Assistant Defender, State

Appellate Defender’s Office, 720 Plaza Center, 125 W.

Michigan Avenue, Lansing, Michigan 48193 and Rudy

Bladel, #158760, Marquette Branch Prison, P.O. Box 779,

Marquette, Michigan 49855 by an agent of Byron S. Adams,

by depositing same in the United States mail this

day of March, 1985 postage prepaid.

Brian E. Tatepe (P32796)

Chief Appellate Attorney

Jackson County Prosecutor’s Office

312 S. Jackson Street - Room 300

Jackson, Michigan 49201

(517) 788-4274

Counsel for Petitioner

APPENDICES

APPENDIX A

SUPREME COURT OPINION

SUPREME COURT

Lansing, Michigan

48909

January 29, 1985

Brian E. Thiede Ronald J. Bretz, Esq.

Chief Appellate Attorney 720 Plaza Center

Prosecutor’s Office 125 W. Michigan Avenue

300 County Building Lansing, MI 48913 IDMail

Jackson, MI 49201

A. George Best James Krogsrud, Esq.

Assistant Prosecutor Third Floor North Tower

12th Flr., 1441 St. Antoine 1200 Sixth Avenue

Detroit, MI 48226 Detroit, MI 48226 IDMail

Re: People v Bladel, No. 69749

People v Jackson, No. 69615

To Att Arrorneys or Recorp:

Due to editorial work necessary to prepare the enclosed

opinion for release, release on the date of decision was

not possible. Therefore, by direction of the Court, this is

to advise you that, notwithstanding the provisions of GCR

1963, 864.4, the 20-day period for moving for rehearing

commences on the date the opinion is released to the par-

ties. In this case, that date is January 29, 1985.

Very truly yours,

SUPREME COURT CLERK

CRD/kle

Enclosure

7-8/April 1984

STATE OF MICHIGAN

SUPREME COURT

Released January 29, 1985

No. 69749

Propie or THE State or Micuican, Plaintiff-Appeliant,

Rupy Buapew, Defendant-A ppellee.

No. 69615

Peor.e or THE State or Micuican, Plaintiff-Appellee,

Rosert Bernarp Jackson, Defendant-Appellant.

[Filed Dee 28 1984]

Berore THE Entire BENCH

M. F. Cavanaca, J.

The common issue presented in these appeals is whether

statements obtained after a defendant has requested ap-

pointment of counsel at arraignment are admissible pursu-

ant to the principles enunciated in Edwards v Arizona,

451 US 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981), and

People vy Paintman, 412 Mich 518; 315 NW2d 418 (1982),

cert den 456 US 995; 102 S Ct 2280; 73 L Ed 2d 1292

(1982).

Defendant Bladel was convicted by a jury in July, 1979,

of three counts of first-degree premeditated murder.’ He

1 MCL 750.316; MSA 28.548.

—-™-~ —_ -

was sentenced to three concurrent mandatory life sen-

tences. Testimony &t trial revealed that three railroad

employees were shot to death on December 31, 1978, at the

Amtrak station in Jackson, Michigan. Defendant, a dis-

gruntled former railroad employee, was the prime suspect.’

He was arrested on January 1, 1979, and questioned twice

by Detective Gerald Rand on January 1 and 2. Defendant

was properly advised of his Miranda® rights before each

questioning and agreed both times to talk without an at-

torney. Defendant admitted being in and around the station

on December 30 and 31, 1978, but denied any involvement

in the killings. He was released on January 3.

On March 18, 1979, the shotgun used in the killings was

found. The weapon had been purchased by defendant two

* The evidence against defendant was substantial. Shortly before he died,

one of the victims indicated that the assailant was a white male. A ticket

clerk observed a tall, husky person walking away from the station after

the shootings, carrying a soft-sided suitcase. A passerby similarly testified

that he observed a stocky man wearing a jacket and cap walking away

from the station carrying a case. He entered a nearby hotel. Defendant

had rented a room at that hotel on December 30 and 31, 1978.

When defendant was arrested on January 1, 1979, he was wearing a

blue nylon jacket end cap and was carrying a brown soft-sided suitcase,

which contained a can of gun oil. Defendant first claimed that he had been

nowhere near the station, but later stated that he had used the restrooms

there twice. He claimed to have recently arrived in Jackson to look for a

job, even though it was a holiday weekend. —

A 12-gauge shotgun and duck jacket were found in mid-March 1979.

Ballistics evidence disclosed that a spent shotgun shell found at the scene

of the killings came from the shotgun. The weapon had been purchased

by defendant in Elkhart, Indiana, two years before the killings. Fibers

found on the gun and the duck jacket and in defendant’s suitcase were

identical. A speck of human blood was also found on the cap defendant

was wearing when he was first arrested.

3’ Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694

(1966).

7-8/April 1984

STATE OF MICHIGAN

SUPREME COURT

Released January 29, 1985

No. 69749

Prope or THE State or Micuican, Plaintiff-Appellant,

Rupvy Buapew, Defendant-Appellee.

No. 69615

Prop.e or THE State or Micuican, Plaintiff-Appellee,

Rosert Bernarp Jackson, Defendant-Appellant.

[Filed Dee 28 1984]

BeroreE THE ENTIRE BENCH

M. F. Cavanaca, J.

The common issue presented in these appeals is whether

statements obtained after a defendant has requested ap-

pointment of counsel at arraignment are admissible pursu-

ant to the principles enunciated in 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; 102 S Ct 2280; 73 L Ed 2d 1292

(1982).

Defendant Bladel was convicted by a jury in July, 1979,

of three counts of first-degree premeditated murder.’ He

1 MCL 750.316; MSA 28.548.

was sentenced to three concurrent mandatory life sen-

tences. Testimony at trial revealed that three railroad

employees were shot to death on December 31, 1978, at the

Amtrak station in Jackson, Michigan. Defendant, a dis-

gruntled former railroad employee, was the prime suspect.”

He was arrested on January 1, 1979, and questioned twice

by Detective Gerald Rand on January 1 and 2. Defendant

was properly advised of his Miranda® rights befcre each

questioning and agreed both times to talk without an at-

torney. Defendant admitted being in and around the station

on December 30 and 31, 1978, but denied any involvement

in the killings. He was released on January 3.

On March 18, 1979, the shotgun used in the killings was

found. The weapon had been purchased by defendant two

? The evidence against defendant was substantial. Shortly before he died,

one of the victims indicated that the assailant was a white male. A ticket

clerk observed a tall, husky person walking away from the station after

the shootings, carrying a soft-sided suitease. A passerby similarly testified

that he observed a stocky man wearing a jacket and cap walking away

from the station carrying a case. He entered a nearby hotel. Defendant

had rented a room at that hotel on December 30 and 31, 1978.

When defendant was arrested on January 1, 1979, he was wearing a

blue nylon jacket and cap and was carrying a brown soft-sided suitcase,

which contained a can of gun oil. Defendant first claimed that he had been

nowhere near the station, but later stated that he had used the restrooms

there twice. He claimed to have recently arrived in Jackson to look for a

job, even though it was a holiday weekend. —

A 12-gauge shotgun and duck jacket were found in mid-March 1979.

Ballistics evidence disclosed that a spent shotgun shell found at the scene

of the killings came from the shotgun. The weapon had been purchased

by defendant in Elkhart, Indiana, two years before the killings. Fibers

found on the gun and the duck jacket and in defendant’s suitcase were

identical. A speck of human blood was also found on the cap defendant

was wearing when he was first arrested.

5 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694

(1966).

years before the killings. The police also obtained strong

scientific evidence linking him to the killings. Defendant

was arrested in Elkhart, Indiana, on March 22, 1979. He

waived extradition after being advised by a-magistrate of

his right to a full hearing and representation by counsel.

Defendant was driven back to Jackson the same after-

noon. Detective Rand questioned him again that evening.

Prior to questioning, defendant was properly advised of

his rights, agreed to talk without counsel, and signed a

waiver form. He did not confess to the killings.

Defendant was arraigned on Friday, March 23, 1979,

in the presence of Detective Rand. Defendant requested

that counsel be appointed for him because he was indigent.

A notice of appointment was mailed to a law firm that day,

but was not received until Tuesday, March 27, 1979. De-

fendant was not informed during the interim that counsel

had been appointed, although he inquired several times.

On March 26, 1979, two police officers interviewed defend-

ant in the county jail. Although the officers were working

with Detective Rand on this case, they were not told that

defendant had requested counsel. Prior to questioning,

the defendant was again properly advised of his Miranda

rights. When he informed the officers that he had requested

counsel, they inquired whether he wished to have an at-

torney present during questioning. Defendant agreed to

proceed without counsel, signed a waiver form, and sub-

sequently confessed to the killings.

Defendant challenged the admissibility of the confession

and the three exculpatory statements at a pretrial Walker *

hearing. The trial court ruled that all of the statements

were admissible because defendant was properly advised

+ People vy Walker (On Rehearing), 374 Mich 331; 132 NW2d 87

(1965).

of his rights and had knowingly and understandingly

waived them each time.*

On appeal, defendant challenged only the admissibility

of the confession. The Court of Appeals upheld the trial

court’s decision and affirmed the convictions.* People v

Bladel, 106 Mich App 397; 308 NW2d 230 (1981). In lieu

of granting leave to appeal, this Court remanded to the

Court of Appeals for reconsideration in light of People v

Paintman and People v Conklin, 412 Mich 518; 315 NW2d

418 (1982). On remand, the Court of Appeals summarily

concluded that Paintman and Conklin, when read in con-

junction with this Court’s remand order, ‘‘compelled’’

reversal. 118 Mich App 498; 325 NW2d 421 (1982). We

granted the prosecuter’s application for leave to appeal.

417 Mich 885; 330 NW2d 846 (1983).

Defendant Jackson was charged with first-degree mur-

der, conspiracy to commit firsi-degree murder,’ and pos-

* The court acknowledged that the leck of opportunity to consult with

counsel before interrogation does affect the voluntariness and effectiveness

of a waiver. However, it knew of no case which required suppression

under these circumstances.

* The Court of Appeals rejected defendant’s assertion that interrogation

can never occur once a defendant requests counsel. The court acknowledged

that the prosecutor bore a heavy burden in proving a knowledgeable and

voluntary waiver and that the police may have acted unethically in ob-

taining the confession. Nevertheless, the waiver was valid because de-

fendant had been warned by the Indiana magistrate not to talk to police

until he met with counsel, he had prior contact with the criminal justice

system and understood his rights, he had signed a waiver form, and had

not reasserted his right to counsel during the interrogation. Finally, the

four-day delay between arraignment and the first meeting with counsel

was not unreasonable. There was no evidence that defendant was kept

from his attorney in order to obtain a confession.

*MCL 750.157a; MSA 28.354(1) and MCL 750.316; MSA 28.548.

session of a firearm during the commission of a felony’

in connection with the death of Rothbe Elwood Perry.

He was convicted by a jury in February, 1980, of second-

degree murder® and conspiracy to commit second-degree -

murder. He was sentenced to two concurrent life terms.

Mr. Perry was shot and killed in his home in Livonia,

Michigan, on July 12, 1979, during an apparent robbery.

On July 28, 1979, Mildred Perry (the deceased’s wife) and

Charles (Chare) Knight were arrested for the murder.

Knight subsequently told Livonia police that Mildred Perry

had solicited him to kill her husband. He, in turn, had

contacted defendant. Knight maintained that defendant

and another man had broken into the house and shot the

deceased.

Defendant and Michael White were arrested on Monday,

July 30, 1979, by Detroit police on an unrelated charge.

They were turned over to the Livonia police at approxi-

mately 2 p.m. the following day. Defendant was questioned

several times on July 31 and gave three similar state-

ments.*® Defendant admitted breaking into the house to

* MCL 750.227b; MSA 28.424(2).

® MCL 750.317; MSA 28.549.

10 Defendant’s first oral statement was given at 3.30 p.m. A similar

statement was tape recorded at 5:52 p.m., but was retaped at 8:48 p.m. be-

cause of the poor quality of the prior recording. Defendant maintained

that he was not advised of his Miranda rights until shortly before the

first taping and that he had requested an attorney during the first inter-

rogation. He agreed to confess because the police suggested that he might

be able to plead to less than first-degree murder. He was also afraid that

he would be beaten.

In contrast, several police officers testified that defendant was advised

of his rights as he was being transported i m Detroit to Livonia and

before each statement was given. They denieu that defendant had ever

requested an attorney. They also denied promising him a “deal” or threat-

ening him. The trial court found the police officers’ testimony to be more

credible.

kill Mr. Perry, but maintained that Knight had fired the

shots.

On August 1, at approximately 10 a.m., defendant sub-

mitted to a polygraph examination after being advised of

his Miranda rights. When defendant was informed that he

had not passed, he told the examiner that he was the

shooter and White had accompanied him. Defendant gave

substantially similar oral and written statements shortly

thereafter to Sergeant William Hoff, one of the officers in

charge of the case."

Defendant, White, Perry, and Knight were arraigned at

4:30 p.m. that afternoon. During arraignment, defendant

requested that counsel be appointed for him. Sergeants

Hoff and Shirley Garrison were present when defendant

requested counsel.

At 10:24 a.m. the next morning, defendant was readvised

of his rights by Sergeants Garrison and Hoff and agreed

to give another tape-recorded statement to ‘‘confirm’’ that

he was the shooter. Defendant had not yet had an oppor-

tunity to consult with counsel. When asked whether he had

been promised anything for his statement, defendant re-

plied that nothing had been actually guaranteed, but some-

thing would be worked out.

Prior to trial, a lengthy Walker hearing was conducted.

The trial court ruled that all of defendant’s statements

were admissible because he had been advised of his

Miranda rights before each statement was given, he never

requested an attorney during the interrogations, he know-

ingly and voluntarily waived his rights each time, no im-

proper promises or threats were made by the police, and

*t Subsequent to these statements, the police reinterrogated Michael White,

who had repeatedly denied any involvement. Defendant was brought into

the interrogation room to persuade White to confess. This interrogation

sessicu was tape recorded. White subsequently confessed to the murder

after arraignment.

the statements were not the result of any illegal delay in

_ arraignment.”

In affirming defendant’s conviction for second-degree

murder." the Court of Appeals upheld the trial court’s

findings of fact. As to the post-arraignment statement, the

court noted that the original panel in Bladel had found a

knowledgeable and voluntary waiver of the right to counsel

on almost identical facts. Edwards and Paimtman were

distinguished on the grounds that defendant asked for an

attorney at arraignment, rather than during police inter-

rogation. This request was ‘‘not made in such a way as

to effectively exercise the right to preclude any subsequent

interrogation’? and was unrelated to defendant’s Fifth

Amendment right to counsel. 114 Mich App 649, 658-659 ;

319 NW2d 613 (1982). We granted defendant’s applica-

tion for leave to appeal. 417 Mich 885; 330 NW2d 846

(1983).

Defendants argue that their post-arraignment statements

were obtained in violation of their Fifth and Sixth Amend-

ment rights to counsel because they asked the arraigning

magistrate for appointed counsel. To determine whether

these statements are admissible, the following questions

must first be resolved:

12 However, White’s confession was suppressed as being coerced. Pri-

marily on the basis of the recorded interrogation of August 1, the trial

court found that the police had ignored White’s requests for counsel and

improperly offered plea bargains.

13 The Court of Appeals vacated defendant’s conviction and sentence

for conspiracy to commit second-degree murder because the crime could

not logically exist. The court reasoned that defendant could not have con-

spired to commit a criminal act which by definition is committed without

premeditation and deliberatioon. The prosecutor has not challenged this

ruling on appeal to this Court.

1) What constitutional right(s) to counsel attached at

the post-arraignment interrogations?

2) What right(s) to counsel did defendants invoke when

they requested counsel at arraignment?

3) What right(s) to counsel did defendants purportedly

waive prior to their post-arraignment interrogations?

The right to counsel is guaranteed by both the Fifth and

Sixth Amendments to the United States Constitution, as

well as Const 1963, art 1, §§17 and 20.* However, these

constitutional rights are distinct and not necessarily co-

extensive. See Rhode Island v Innis, 446 US 291, 300, fn 4;

100 S Ct 1682; 64 L Ed 2d 297 (1980).

In Miranda, the United States Supreme Court declared

that an accused has a Fifth and Fourteenth Amendment

right to have counsel present during custodial interroga-

tion in order to protect the accused’s Fifth Amendment

privilege against compulsory self-incrimination. Innis,

supra, p. 297; Edwards, supra, 451 US 481. However, the

Fifth Amendment right to counsel attaches only when an

accused is in custody, United States v Henry, 447 US 264,

273, fn 11; 100 S Ct 2183; 65 L Ed 2d 115 (1980), and

subjected to interrogation. Innis, supra, p 298; Kirby v

Illinois, 406 US 682, 688; 92 S Ct 1877; 32 L Ed 2d 411

(1972). Once an accused invokes his right to have counsel

present during custodial interrogation, the police must

** Const 1963, art 1, § 17 provides in relevant part:

“No person shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty or property, without

due process of law.”

Const 1963, art 1, § 20 provides in relevant part:

“In every criminal prosecution, the accused shall have the right...

to have the assistance of counsel for his defense... .”

10a

refrain from further interrogation until counsel is made

available, unless the accused initiates further communica-

tions, exchanges, or conversations with the police. Ed-

wards, supra, pp 484-485; Paintman, supra, 412 Mich 526.

Neither Miranda nor its progeny limits the Fifth Amend-

ment right to counsel to custodial interrogations conducted

prior to arraignment. Since defendants were clearly sub-

jected to custodial interrogation when they made their

post-arraignment confessions, their Fifth Amendment right

to counsel had attached.

The Sixth Amendment guarantees that ‘‘[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to have

the Assistance of Counsel for his defence.’’ However, this

right to counsel attaches only at or after the initiation of

adversary judicial proceedings against the accused by way

of a formal charge, preliminary hearing, indictment, infor-

mation, or arraignment. United States v Gouveia, —— US

. ; 104 S Ct 2292; 81 L Ed 2d 146, 153-154 (1984) ;

Kirby, supra, 406 US 688-689. The accused is entitled to

counsel not only at trial, but at all ‘‘critical stages’’ of

the prosecution, i.e., those stages ‘‘where counsel’s absence

might derogate from the accused’s right to a fair trial.’’

United States v Wade, 388 US 218, 226-227; 87 S Ct 1926;

18 L Ed 2d 1149 (1967). Regardless of whether the accused

is in eustody or subjected to formal interrogation, the

Sixth Amendment right to counsel exists whenever the

police attempt to elicit incriminating statements. Henry,

supra, 447 US 271-273. See also Brewer v Williams, 430 US

387; 97 S Ct 1232; 51 L Ed 2d 424 (1977); Massiah v

United States, 377 US 201; 84 S Ct 1199; 12 L Ed 2d 246

(1964). This right to counsel does not depend upon a

request by the accused and courts indulge in every reason-

able presumption against waiver. Brewer, supra, pp 404-

405. Since defendants were interrogated subsequent to

arraignment, they were also entitled to counsel under the

Sixth Amendment.

lla

The foregoing analysis demonstrates that defendants’

request to the arraigning magistrate for appointment of

counsel implicated only their Sixth Amendment right to

counsel. Although defendants were in custody at the time

of their arraignments, they were not subjected to inter-

rogation. In addition, they did not specifically request

counsel for any subsequent custodial interrogations which

might be conducted. Defendants requested appointed coun-

sel because they were financially incapable of retaining an

attorney and were unwilling to represent themselves. See

State v Sparklin, 296 Or 85; 672 P2d 1182, 1185-1186 (1983).

The trial courts found that defendants never invoked

their Fifth Amendment right to counsel before or during

their post-arraignment interrogations. Furthermore, de-

fendants 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. People v McGillen #1, 392 Mich 251,

257 ; 220 NW2d 677 (1974); People v Robinson, 386 Mich

951, 557; 194 NW2d 709 (1972).

The question remains whether defendants’ waiver of

their Fifth Amendment right to counsel also waived their

Sixth Amendment right to counsel. Defendants were given

standard Miranda warnings prior to their post-arraign-

ment interrogations. However, these warnings were de-

signed to advise an accused only of his Fifth Amendment

rights. The Sixth Amendment right to counsel is consider-

ably broader than its Fifth Amendment counterpart since

it applies to all critical stages of the prosecution. Neither

the United States Supreme Court nor this Court has de-

12a

lineated specific procedural requirements for waiver of

the Sixth Amendment right to counsel.”*

15 Although Edwards arguably involved a statement obtained after judi-

cial criminal proceedings had commenced, the Supreme Court specifically

declined to address the Sixth Amendment question because the state court

had no done so. Edwards, supra, 451 US 480, fn. 7. Similarly, in Conklin

(the companion case to Paintman), a confession was obtained seven days

after the defendant requested counsel during his arraignment. See Paint-

man, supra, 412 Mich 526. This Court did not diseuss the Sixth Amend-

ment ramifications of this request since Paintman and Conklin had also

invoked their Fifth Amendment right to counsel prior to arraignment.

Numerous courts have attempted to define what procedural requirements

are sufficient to ensure that a defendant’s waiver of his Sixth Amend-

ment right to counsel is voluntary, knowing and intelligent. See cases

cited in People v. Green, (Levin, J., dissenting), 405 Mich. 273, 302-304,

and fns. 5-8; 274 NW2d 448 (1979), and Note, Proposed Requirements

for Waiver of the Sixth Amendment Right to Counsel, 82 Colum L R

363, 369, fn 42 (1982). Some courts have held that a valid waiver of

Miranda rights alone is sufficient, while other courts require that the

defendant be specifically informed of his Sixth Amendment rights by the

police or a neutral magistrate. Some cases apparently have turned on the

particular facts presented, e.g., whether the defendant or the police initi-

ated the conversation which resulted in the confession, or whether the

police were aware that defendant had been arraigned, had requested

counsel, or had obtained counsel by the time the interrogation was con-

ducted. Id.

Recent law review articles generally advocate that higher standards be

implemented to safeguard the Sixth Amendment right to counsel. See,

e.g., 82 Colum L R, supra, p 381 (defense counsel should be present when

defendant waives his right to counsel) ; Note, Sizth Amendment Right to

Counsel: Standards for Knowing and Intelligent Pretrial Waivers, 60

Boston U L R 738, 762-764 (1980) (in addition to Miranda warnings,

defendant must be told that he has been formally charged, the significance

thereof, and how an attorney could assist him); Grano, Rhode Island v

Innis: A Need to Reconsider the Constitutional Premises Underlying the

Law of Confessions, 17 Am Crim L R 1, 35 (1979) (police cannot elicit

information from defendant unless they seek to notify counsel; if on

attorney exists, defendant’s waiver must meet the standards that govern

waiver of the right to counsel at trial pursuant to Faretta v California,

422 US 806; 96 S Ct 2525; 45 L Ed 2d 562 [1975]); ef. Constitutional

Law—Right to Counsel, 49 Geo Washington L 399, 409-410 (1981)

13a

Courts which have specifically addressed the problem of

requests for counsel at arraignment have reached differing

results both before and after Edwards was decided. The

Second Circuit Court of Appeals has adopted the strictest

procedural requirements for waiver of the Sixth Amend-

ment right to counsel. In United States v Satterfield, 558

F2d 655, 657 (CA 2, 1976), defendant’s post-indictment and

post-arraignment statements were suppressed, even though

he had executed a written waiver of his Miranda rights.

The Court reasoned that even if the statements were volun-

tary for purposes of the Fifth Amendment ‘‘they were

involuntary with ‘regard ... [to] the higher standard with

respect to waiver of the right to counsel that applies when

the Sixth Amendment has attached.’ ”’

Specific procedural safeguards were adopted in United

States v Mohabir, 624 F2d 1140 (CA 2, 1980)."* The Moha-

bir Court explained that a higher standard for waiver of

counsel is required after judicial proceedings have com-

menced because the government has committed itself to

prosecute, and any questioning by the government can only

be for the purpose of buttressing its prima facie case.

(Miranda warnings sufficient unless defendant indicted before arrest).

United States Supreme Court Justice Thurgood Marshall has also econ-

sistently advocated a higher standard for waiver of the Sixth Amendment

right to counsel. See Wyrick v Fields (Marshall, J., dissenting), 459 US

42, 54-55; 103 S Ct 394; 74 L Ed 2d 214 (1982), cert den after remand

US ——; 104 S Ct 556; 78 L Ed 2d 728 (1983).

** Mohabir involved an indirect request for counsel to the arraigning

magistrate. Before interrogation, defendant was advised several times of

his Miranda rights, the nature of the charegs against him, and the fact

that he had been indicted. He was also given a copy of the indictment,

but was not informed of the significance thereof. During interrogation,

defendant was asked if he would need counsel appointed for arraignment.

He replied affirmatively, but questioning continued. The arraigning mag-

istrate was informed of defendant’s request and ecntacted an attorney to

represent defendant.

l4a

Informing a defendant of his Miranda rights and the fact

that he has been indicted is insufficient, since this informa-

tion may not allow the accused to ‘‘ ‘appreciate the gravity

of his legal position, and, the urgency of his need for a

lawyer’s assistance.’ ’’ IJd., pp 1148-1150. In the exercise

of its supervisory power, the Mohabir Court held that an

accused may not validly waive his Sixth Amendment right

to counsel unless a federal judicial officer has explained

the content and significance of this right.’’ Furthermore,

the accused must be shown the indictment and informed of

its significance, the right to counsel, and the seriousness of

his situation should he decide to answer further police

questions without counsel. The Court believed that this

procedure would minimize disputes as to what warnings

were actually given and whether defendant fully compre-

hended his rights. Zd., p 1153.

The Fifth Circuit, on the other hand, has reached con-

flicting results, primarily because it has not adequately

distinguished the Fifth and Sixth Amendment rights to

counsel. In Blasingame v Estelle, 604 F2d 893, 895-896

(CA 5, 1979), the Court stated that the crucial inquiry is

whether defendant’s assertion of his right to counsel be-

fore the arraigning magistrate was made in such a manner

that the subsequent police questioning ‘‘impinged on the

exercise of the suspect’s continuing option to cut off the

interview.’’ It was noted that some defendants may wish

to have an attorney represent them in legal proceedings,

yet wish to assist the police by responding to questions

without an attorney being present. The Court found that

Blasingame’s request was not an invocation of his Fifth

17 The Mohabir Court refused to allow the prosecutor to give this ad-

vice since he is an adversary of the defendant. It postponed consideration

of a third alternative, i.e., “outlawing” all statements made by an indicted

defendant following an uncounseled waiver. The Court noted that such an

approach could conflict with the defendant’s constitutional right to repre-

sent himself under Faretta v California, supra. Mohabir, supra, 624 F2d

1151-1153.

15a

Amendment right to confer with or have counsel present

during questioning. Since he was informed of his Miranda

rights at arraignment and before his subsequent interro-

gation, and had voluntarily and intelligently waived these

rights, his post-arraignment statements were admissible."

Blasingame, however, was decided solely on Fifth Amend-

ment grounds.

A contrary result was reached in Silva v Estelle, 672 F2d

457 (CA 5, 1982). There, defendant was questioned one

hour after he asked the arraigning magistrate for permis-

sion to call his attorney. This request was construed as an

unequivocal exercise of defendant’s right to counsel. The

Silva Court concluded that under Edwards, the police were

not entitled to initiate further interrogation unless they

first honored defendant’s request for counsel. Like Blasin-

game, Silva did not distinguish between defendant’s Fifth

and Sixth Amendment rights to counsel.

Shortly after Silva was decided, Jordan v Watkins, 681

F2d 1067, 1073-1075 (CA 5, 1982), held that the police,

who were not aware that counsel had been appointed at

arraignment, properly interrogated the defendant. Ed-

wards was distinguished on the grounds that Jordan had

never requested counsel with respect to custodial inter-

rogation or attempted to cut off questioning; he merely

wanted counsel to assist him in further judicial proceed-

ings. (The Jordan Court relied heavily upon Blasingame

in reaching this conclusion, but did not mention Silva.)

After examining the totality of the circumstances, the

Court found that Jordan had voluntarily, knowingly, and

intelligently waived both his Fifth and Sixth Amendment

rights to counsel.

In contrast, the Sixth Circuit held, in United States v

Campbell, 721 F2d 578, 579 (CA 6, 1983), that incriminat-

** The Court of Appeals relied primarily on Blasingame in concluding

that Bladel and Jackson’s post-arraignment statements were admissible.

l6a

ing statements obtained thirteen minutes after defendant

requested and was appointed counsel were inadmissible.

The Court noted that the interrogating agents had mani-

fested an indifference to, if not an intentional disregard

for, defendant’s Sixth Amendment right to counsel and

Fifth Amendment right against compulsory self-incrimi-

nation, primarily because they were present when defend-

ant requested counsel. The agents improperly conducted

‘one last round of interrogation’’ before defendant had

an opportunity to consult with counsel. Such conduct clear-

ly violated Edwards. Jordan was distinguished because

Campbell had not voluntarily, knowingly, and intelligently

waived his Fifth Amendment right to counsel by initiating

the post-arraignment conversation.

Several state supreme courts have addressed this prob-

lem, but have also reached conflicting results. In Johnson v

Commonwealth, 220 Va 146, 158-159; 255 SE2d 525 (1979),

later app 221 Va 736; 273 SE2d 784 (1981), cert den 454

US 920; 102 S Ct 422; 70 L Ed 2d 231 (1981), the police

initiated interrogation five hours after defendant requested

counsel at arraignment. The Virginia Supreme Court held

that defendant’s confession was admissible because he kad

knowingly, intelligently, and voluntarily waived his right

to counsel prior to interrogation. The Court found that

the police officers’ conduct was not coercive, they were not

aware that defendant had been arraigned, and defendant

had never requested counsel during the interrogation. How-

eyer, the Johnson Court did not distinguish between de-

fendant’s Fifth and Sixth Amendment rights to counsel.

Furthermore, the case was decided prior to Edwards.

The United States Supreme Court ultimately denied

defendant’s petition for certiorari, over a lengthy dissent

written by Justice Marshall. He believed that the decision

to admit the confession was contrary to the spirit, if not

the letter, of Edwards. He rejected the state’s attempt to

distinguish Edwards:

17a

‘“‘The State attempts to distinguish Edwards on two

grounds. First, it points out that Edwards clearly ex-

pressed his desire to deal with police only through

counsel, whereas petitioner here simply asked that an

attorney be appointed. However, an accused is under

no obligation to state precisely why he wants a lawyer.

If we were to distinguish cases based on the wording

of an accused’s request, the value of the right to coun-

sel would be substantially diminished. As we stated in

Fare v Michael C., 442 US 707, 719 [99 S Ct 2560;

61 L Ed 2d 197] (1979), ‘an accused’s request for an

attorney is per se an invocation of his Fifth Amend-

ment rights, requiring that all interrogation cease.’

‘*Second, the State notes that Edwards informed

the police of his desire for an attorney, whereas peti-

tioner only informed the judge at his arraignment.

The State suggests that since the police did not know

about petitioner’s request, the interrogation was not

improper. However, the police could easily have deter-

mined whether petitioner had already exercised his

right to counsel; presumably, a prosecutor was present

at the arraignment. They did not know about petition-

er’s request for a lawyer only because they made no

effort to determine whether such a request had been

made. But even if the police could not have discovered

that petitioner had expressed a desire for an attorney,

I would hold that the confession should not have been

admitted. The key question in this case is whether

petitioner’s waiver of his right to counsel was know-

ing, intelligent, and voluntary. In determining whether

these conditions were satisfied, the fact that the police

were unaware of a prior request for counsel is only

tangentially relevant. What is important, rather, is

the state of mind of the accused. I think it is no more

safe to assume that a waiver is valid when an accused

has made a prior request to the judge at his arraign-

(8a

ment than when he has made the request to police.

In both cases, the accused informs an individual in

authority that he would like an attorney—and yet

shortly thereafter, state officials, apparently disregard-

ing his request, ask him to waive his rights.’’ 454 US

922-923.

In State v Sparklin, 296 Or 85; 672 P2d 1182 (1983), the

Oregon Supreme Court carefully differentiated between

the two constitutional rights to counsel. There, defendant

requested an attorney at his arraignment on a forgery

charge stemming from the use of a stolen credit card. That

evening, the police interrogated him concerning an assault

on the credit card owner and a factually unrelated murder

and robbery. Defendant waived his Miranda rights and

confessed to the murder.

The Sparklin Court initially found that defendant had

not invoked either his state or Fifth Amendment right to

counsel or privilege against compulsory self-incrimination

during arraignment. Unlike an interrogation session, a

defendant is not confronted with an atmosphere of coercion

or attempts to gain admissions during arraignment. With-

out a more explicit request or one made in anticipation of,

or during interrogation, defendant’s request for an at-

torney was deemed to be merely ‘‘a matter of routine.’’

Id., pp 1185-1186.

Turning to the Sixth Amendment right to counsel and

its state counterpart, the Sparklin Court noted that pur-

suant to its earlier interpretations of the Oregon Constitu-

tion, the state was required to notify the defendant’s at-

torney prior to interrogation and afford him an opportunity

to be.present. Furthermore, the defendant could not waive

his state constitutional right to counsel until he had con-

sulted with his attorney, although he could volunteer state- -

ments on his own initiative. Id., p 1187. Although the com-

parable Sixth Amendment right to counsel was not so

clearly defined, the court believed that it was of equal

19a

scope. Id., p 1188. In dicta, the Court noted tha+ if defend-

ant had been questioned for the crimes ag«inst the credit

card owner, the interrogation would have been improper

since no waiver could have been given before counsel was

consulted. Jd., p 1190."*

The most recent decision is State v Wyer, 320 SE2d 92

(W Va, 1984). After reviewing numerous cases, the West

Virginia Supreme Court concluded that there is no rule

per se against waiver of the Sixth Amendment right to

counsel. However, it believed that such a waiver should be

judged by stricter standards than a waiver of the Fifth

Amendment right to counsel. The Wyer Court refused to

equate a general request for counsel at arraignment with

an Edwards direct request for counsel to an interrogating

officer, since the Sixth Amendment right attaches regard-

less of whether a specific request is made. Thus, the police

could initiate questioning after a defendant requests coun-

sel at arraignment, as long as the defendan: is willing to

waive his Sixth Amendment right.

In order to ensure a valid waiver of the Sixth Amend-

ment right to counsel, the Wyer Court held that a defend-

ant must execute a written waiver after being informed of

his arrest, the nature of the charges against him, and his

Miranda rights. If the defendant asserts his Edwards right

to counsel when the waiver is sought, interrogation must

cease until counsel is made available, unless the defendant

initiates further communications with the intent to waive

his Sixth Amendment right to counsel. The interrogating

officer’s knowledge that counsel has teen requested was

deemed to be only ‘‘one ingredient’’ in determining

whether tiie waiver was valid, rather than an absolute bar.

Id., p 105 and fns 23 & 25.

1° However, since the interrogation related to a criminal episode un-

related to the one on which defendant was arraigned and for which

counsel was obtained, the Sparklin Court concluded that the confession

was properly obtained. 672 P2d 1188.

20a

The Wyer dissent persuasively argued that if a Miranda

waiver is inadequate to protect the Fifth Amendment right

to counsel under Edwards, it certainly would be inadequate

to protect the greater Sixth Amendment right. The dissent

believed that once a defendant makes an oral or written

request for counsel to the magistrate, the police must notify

his lawyer and refrain from further interrogation until the

defendant has spoken to him. If, after consultation, the

defendant wishes to forego his right to counsel, he can then

do so. The officer’s presence at arraignment was deemed

an irrelevant consideration, since both he and the prosecu-

tor have a duty to discover whether the defendant has been

arraigned and if he requested counsel. Such safeguards

would not prevent confessions, but only guarantee that

they were voluntary and obtained without violating the

defendant’s right to counsel. The dissent concluded:

‘‘(I]t is time to recognize that all defendants with-

vut counsel are constitutionally disadvantaged when

faced with a government armory of armed police,

prosecutors and professional interrogators.’’ /d., p 111.

As the for-going discussion demonstrates, no consistent

approach to the waiver problem has emerged. However, it

is clear that no court has adopted a per se rule which pre-

vents a defendant from ever waiving his Sixth Amendment

right to counsel.” We also decline to adopt such a rule.

20 Although the United States Supreme Court sidestepped this issue in

Brewer, supra, 430 US 405-406, it suggested that a Sixth Amendment

waiver was not precluded in Estelle v Smith, 451 US 454, 471, fn 16;

101 S Ct 1866; 68 L Ed 2d 359 (1981). Moreover, the Supreme Court

has stated that the Sixth Amendment right to counsel may be waived at

a post-indictment lineup. Wade, supra, 388 US 237. In addition, a de-

fendant has a constitutional right to waive the assistance of counsel at

trial, as long as the trial court advises the defendant of the dangers and

disadvantages of self-representation and the defendant knowingly and

voluntarily waives his right to counsle. Faretta, supra, 422 US 835;

People v Anderson, 398 Mich 361, 368; 247 NW2d 857 (1976).

2la

It is also clear that if defendants had invoked their Fifth

Amendment right to counsel to the police, Edwards and

Patintman would have barred all further interrogation until

defendants had an opportunity to consult with counsel,

since they did not reinitiate further conversations with the

police. The United States Supreme Court adopted this

prophylactic rule to protect an accused from being badg-

ered by the police while in custody. Oregon v Bradshaw,

462 US 1039, ——; 103 S Ct 2830; 77 L Ed 2d 405, 411

(1983).

Although judges and lawyers may understand and appre-

ciate 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 con-

stitutional 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 cfficer for an attorney, but permit further interro-

gation of a defendant who makes an identical request to a

judge. The simple fact that defendant has requested an

attorney indicates that he does not believe that he is suffi-

ciently capable of dealing with his adversaries singlehand-

edly. As Justice Marshall noted, if we are to distinguish

eases solely on the wording of an accused’s request and

to whom it is made, the value of the right to counsel would

be substantially diminished.

Furthermore, once adversary judicial proceedings have

commenced, the police have ‘‘everything to gain’’ and the

accused ‘‘everything to lose’’ when ‘‘one last round’’ of

interrogation is conducted before counsel arrives:

‘*As Justice Stewart noted in K irby v Illinois, supra,

406 US at 689-690:

‘* *The initiation of judicial criminal proceedings is

far from a mere formalism. It is the starting point of

22a

our whole system of adversary criminal justice. For it

is only then that the government has committed itself

to prosecute, and only then that the adverse positions

of government and defendant have solidified. It is then

that a defendant finds himself faced with the prosecu-

torial forces of organized society, and immersed in the

intricacies of substantive and procedural criminal law.

It is this point, therefore, that marks the commence-

ment of the ‘‘criminal prosecutions’’ to which alone

the explicit guarantees of the Sixth Amendment are

applicable.’ * * *

‘‘The indictment thus marks a crucial point for the

defendant; it also marks the point after which any

questioning of the defendant by the government can

only be ‘for the purpose of buttressing ... a prima

facie case. . . . [S]ince the finding of the indictment

presumably imports that the People have legally suffi-

cient evidence of the defendant’s guilt of the crime

charged . . ., the necessities of appropriate police in-

vestigation ‘‘to solve a crime, or even to absolve a

suspect’’ cannot be urged as justification for any sub-

sequent questioning of the defendant.’

‘¢TAJjs Judge Knapp pointed out in United States v.

Satterfield, 417 F Supp 293, 296 (SDNY), aff’d, 558

F2d 655 (CA 2, 1976):

‘¢*Prior to indictment—before the prosecution has

taken shape—there may be reasons why a suspect

might rationally wish to deal with agents without the

intervention of counsel. By getting in their good

graces and being useful to the government he might

be able altogether to avoid indictment or any legal

entanglement. No such opportunity is open to him

after a grand jury has spoken. At that point he can-

not make any arrangement with agents or prosecutor

23a

that is not subject to ultimate approval by the court,

and counsel is obviously important to advise him on

what terms such approval is likely to be forthcoming

and how best to obtain it.’ ’’ Mchabir, supra, 624 F2d

1148-1149,*"

Finally, it is clear that every court has acknowledged

that the Sixth Amendment right to counsel is as important,

if not more so, than the judicially created Fifth Amend-

ment right to counsel. As such, it is entitled to be protected

by procedural safeguards at least as stringent as those

designed for its lesser counterpart. We decline to follow

the reasoning of those cases which have found valid Sixth

Amendment waivers after a request for counsel has been

made to a magistrate based solely on waivers of Miranda

rights. The majority of these cases did not sufficiently

distinguish between the concerns underlying the Fifth and

Sixth Amendment rights to counsel. As the Wyer dissent

noted, if a Miranda waiver is insufficient to ensure a valid

waiver of the Fifth Amendment right to counsel pursuant

to Edwards, it certainly should be inadequate to ensure a

valid waiver of the greater Sixth Amendment right.

We need not decide at this time whether stricter proce-

dural standards for waiver of the Sixth Amendment right

to counsel are required. We need only hold that, at a

minimum, the Edwards/Paintman rule applies by analogy

to those situations where an accused requests counsel be-

fore the arraigning magistrate.** Once this request occurs,

*1 See also 82 Colum L R, supra, pp. 372-373.

72 We do not decide under what circumstances the police may interro-

gate a defendant who has not specifically requested appointed counsel at

arraignment, or who has already consulted with counsel. We note only

that these defendants must waive both their Fifth and Sixth Amendment

rights to counsel before post-arraignment interrogation may proceed.

24a

the police may not conduct further interrogations until

counsel has been made available to the accused, unless the

accused initiates further communications, exchanges, or

conversations with the police.” If a defendant chooses to

reinitiate communications, he must be sufficiently aware of

both his Fifth and Sixth Amendment rights to effectuate a

voluntary, knowing, and intelligent waiver of each right.

See Bradshaw, supra, US —; 77 L Ed 2d 413;

Johnson v Zerbst, 304 US 458, 464; 58 S Ct 1019; 82 L Ed

1461 (1938).

We further hold that before commencing interrogation,

the police have an obligation to determine whether an

accused has been arraigned and requested counsel. This

duty is no more onerous than that imposed by Edwards

and Paintman. As Justice Williams observed in his dissent

in People v Esters, 417 Mich 34, 64; 331 NW2d 211 (1982) :

‘(T]he defendant’s rights may not be diminished

merely because the state fails to respond to defend-

ant’s request for counsel, as it should have done. Once

he has asked for counsel, the defendant has done all

that is within his power to secure this guaranteed

right.’’

We also note that the police officers who were in charge

of the investigations in both Bladel and Jackson were

present at the arraignments when defendants requested

appointed counsel. Although the officers who later inter-

rogated Bladel were not present at arraignment, Bladel

informed them of his request prior to questioning. In both

cases, the police were attempting to strengthen their cases

23 This rule is consistent with the result reached in People v Green, 405

Mich 273; 274 NW2d 448 (1979), since defendant there reinitiated fur-

ther communications with the police. However, we do not suggest that the

warnings given in Green are sufficient to effectuate a valid waiver of the

Sixth Amendment right to counsel. That issue was not presented in Green

and we need not decide it here.

25a

by conducting ‘‘one last round’’ of interrogation before

counsel arrived. Interrogations of defendants who are

represented by counsel without counsel’s knowledge have

been repeatedly criticized. See, e.g., United States vy Camp-

bell, 721 F2d 578, 579 (CA 6, 1983) ; United States v Cobbs,

481 F'2d 196, 200 (CA 3, 1973), cert den 414 US 980; 94S Ct

298; 38 L Ed 2d 224 (1973); United States v Springer,

460 F2d 1344, 1353 (CA 7, 1972), cert den 409 US 873;

93 S Ct 205; 34 L Ed 125 (1972); Paintman, supra, 412

Mich 529-530.

The police cannot simply ignore a defendant’s unequivo-

cal request for counsel. As this Court noted in Paintman,

supra:

‘‘Of what significance is invocation of a cherished

constitutional right if it is ignored by the hearer and,

in fact, only seems to exacerbate the defendant’s

plight? As the time gap increases between the embrac-

ing of the right and its fulfillment, the certainty of its

existence must surely dim.’’

In fact, defendant Bladel specifically testified that he began

to doubt whether he would have counsel appointed because

he did not meet with an attorney until three days after

his arraignment. Furthermore, when he asked the jail per-

sonnel and the interrogating officers whether counsel had

been appointed for him, they repeatedly pleaded ignorance.

Since defendants Bladel and Jackson requested counsel

during their arraignments, but were not afforded an oppor-

tunity to ecasult with counsel before the police initiated

further interrogations, their post-arraignment confessions

were improperly obtained and must be suppressed. Plain-

tiffs nevertheless maintain that defendants’ statements

need not be suppressed because they were tried before

Edwards was decided. In Solem v Stumes, US .

——; 104 S Ct 1338 ; 79 L Ed 2d 579, 59 (1984), the Supreme

Court refused to apply Edwards retroactively to collateral

26a

reviews of final convictions. The Court, however, specifical-

ly declined to decide whether Edwards could be applied

retroactively to defendants whose convictions were not yet

final when the decision was issued.

We need not decide this question since a violation of the

Fifth Amendment right to counsel is not involved in either

of these cases. We have merely extended the Edwards/

Paintman rule by analogy to cases involving requests for

counsel during arraignment, on the basis of our inter-

pretation of both the Sixth Amendment right to counsel

and its state constitutional counterpart embodied in Const

1963, art 1, § 20. Given the Supreme Court’s holding that

Edwards established a new ‘‘bright line’’ test,** the fact

that this Court has not previously articulated precise pro-

cedural standards for waivers of the Sixth Amendment

right to counsel, and the diverse approaches adopted in

other jurisdictions, the rules articulated herein will apply

to the instant cases, those cases trie’ after this opinion

is issued, and those cases pending on appeal which have

raised the issue.

Defendant Jackson further argues that his six pre-

arraignment confessions were inadmissible because the

police deliberately delayed arraignment in order to obtain

them or the confessions were induced by police threats and

promises. The trial court rejected both arguments. The

Court of Appeals agreed that the pre-arraignment delay

was not used to extract a confession. Defendant was prop-

erly advised of his Miranda rights before each session and,

according to the police officers, he volunteered his state-

ments. 114 Mich App 654-655.*

24 Solem, supra, p. 589; cf. Paintman, supra, 412 Mich 530-531.

25 On appeal to this Court, defendant does not challenge the trial court’s

findings that he was properly advised of his rights before each statement

was given and that he never requested an attorney until arraignment.

ee OT BOR ay

27a

Although the police had sufficient probable cause to ob-

tain a warrant for defndant Jackson’s arrest as a result

of codefendant Knight’s statements, they did not do so.

Defendant was ‘‘arrested’’ on the murder charges on Tues-

day, July 31, at 2 p.m. when he was turned over to the

Livonia police. Since defendant was arrested for a felony

without a warrant, the arresting officers were required to

bring him before a magistrate for arraignment without

unnecessary delay. MCL 764.13; MSA 28.871(1); MCL

764.26; MSA 28.885; People v Mallory, —— Mich ——;

— NW2d —— (1984) (slip op, p 5); People v White,

392 Mich 404, 424; 221 NW2d 357 (1974), cert den sub nom

Michigan v White, 420 US 912; 95 S Ct 835; 42 L Ed 2a

843 (1975). Immediate arraignment is not required, how-

ever. Circumstances may require a brief delay for ‘‘book-

ing,’’ a quick verification of the accused’s volunteered

‘‘story,’’ or a brief questioning to determine the immediate

question of release or complaint. Mallory v United States,

354 US 449, 454-455; 77 S Ct 1356; i L Ed 2d 1479 (1957);

People v Hamilton, 359 Mich 410, 416-417; 102 NW2d 738

(1960). Even where an unnecessary delay has occurred,

admissions or confessions obtained during this period will

not be excluded unless the delay was employed as a tool

to extract the statement. Mallory, supra, Mich ——

(slip op, p 5); White, supra.

Defendant was not arraigned until August 1 at 4:30 p.m.,

approximately 26%4 hours after his arrest. He was first

interrogated shortly after arriving at the Livonia police

station. The police initially obtained background informa-

tion from defendant and informed him of his rights, the

Our independent review of the record does not disclose that these findings

are clearly erroneous.

Since the trial court found the police officers to be more credible, the

following discussion of the facts is based upon the officers’ testimony at

the Walker hearing.

28a

nature of the charges against him, and the mandatory

punishment of life imprisonment for first-degree murder.

They then confronted him with Knight’s statement that

defendant and another person had committed the murder.

At approximately 3:30 p.m., defendant admitted that he

was present during the murder, but maintained that Knight

was with him and had shot the victim.

We conclude that this first oral statement was not ob-

tained during a period of unreasonable delay. The officers’

questioning occurred 1% hours after the arrest and was

for the purpose of determining whether Knight had un-

justly accused defendant. .

Sergeant Richard Ericson, another officer in charge of

the case, testified at the Walker hearing that after this

first confession, the police had sufficient information to

obtain an arrest warrant against defendant. Sergeant Hoff

testified similarly, but explained that they could not have

obtained a warrant because the prosecutor’s office was

closed and there was no one available to authorize the

warrant request. Shortly after the first statement was

given, the police asked defendant to repeat his statement

so that it could be tape-recorded. Defendant agreed. The

recording began at 5:52 p.m. However, the quality of the

recording was so poor that the police asked defendant to

repeat the statement again. The second taping began at

8:48 p.m. The content of these two recorded statements

did not substantially differ from that of the prior oral

statement.

Giving the police the benefit of the doubt, we conclude

that no unreasonable delay occurred between the arrest and

the time these two taped statements were given. If any

unreasonable delay occurred, it was not used to extract a

new statement, but merely to memorialize the first oral

statement.”

26 However, our conclusion in no way condones the officers’ actions.

Defendant’s first confession, when coupled with Knight’s statement, pre-

29a

After the second taped statement, defendant was con-

fronted by the fact that his version still differed from

Knight’s, i.e., defendant claimed that he and Knight were

present but that Knight was the shooter, while Knight

claimed that deferdant and White committed the murder.

The police noted that Knight had agreed to undergo a

polygraph examination the following morning and re-

quested that defendant undergo one also. Defendant

agreed.

The examination began at approximately 10 a.m. The

polygraph examiner informed defendant of his rights and

that he did not have to submit to the exam. Defendant still

agreed to the polygraph. Afterwards. the examiner in-

formed defendant that he had not been truthful and urged

him to tell the other officers the truth in order to maintain

his credibility. Defendant then confessed to the examiner

that he had shot the victim and that White, not Knight,

had been present. The examiner immediately informed

Sergeant Hoff, who was waiting outside the polygraph

room. Shortly thereafter, Sergeant Hoff met with defend-

ant, advised him of his rights, and obtained substantially

similar oral and written statements.

Primarily on the basis of the officers’ testimony at the

Walker hearing, we conclude that the three post-polygraph

statements were obtained during an unnecessary pre-

arraignment delay and that the delay was employed as a

tool to extract these statements. Sergeant Hoff testified

that if an arrest warrant had been issued during the morn-

sented more than enough evidence to arraign defendant for conspiracy

and first-degree murder. The only purpose in recording defendant’s state-

ment was to strengthen the prosecution’s case against him and his co-

defendants prior to arraignment. The result in this case might have been

different if the first oral statement had been obtained earlier in the day,

if it had materially differed from the subsequently recorded statements,

or if the recorded statements were the product of more intensive inter-

rogation.

30a

ing of August 1, defendant could have been arraigned at

that time, except for the polygraph exam. Sergeant Ericson

testified that he began preparing the 36-page warrant re-

quest for all four defendants at 9:30 a.m. on August 1,

and finished at 1 p.m. On cross-examination, however, he

stated that he had previously prepared a request and ob-

tained a warrant for codefendant Perry. The warrant re-

quests for Perry and defendant were substantially similar,

except for the information concerning Knight’s statements,

and defendant’s pre- and post-polygraph confessions. Ser-

geant Ericson thereafter presented the request to the

prosecutor’s office, obtained the complaints and warrants,

and arrived at the Livonia District Court at approximately

4:30 p.m. for the arraignment.

Although the thoroughness with which the warrant re-

quest was prepared may be commendable, the police can-

not justify infringing upon a defendant’s statutory and

constitutional rights to a prompt arraignment merely on

the grounds that their ‘‘paperwork’”’ has not yet been com-

pleted. A contrary conclusion would encourage dilatory

efforts in seeking and obtaining the prosecutor’s authori-

zation. It must be remembered that a magistrate is required

to issue an arrest warrant upon presentation of a proper

complaint alleging the commission of an offense and upon

a finding of reasonable cause to believe that the accused

committed the offense. MCL 764.1a; MSA 28.860(1). The

complaint need not contain every fact which contributed

to the affiant’s conclusions, nor must every factual allega-

tion be independently documented. The complaint simply

has to be sufficient enough to enabie the magistrate to de-

termine that the charges are not capricious and are suffi-

ciently supported to justify further criminal action. Jaben

v United States, 381 US 214, 224-225; 85 S Ct 1365; 14

L Ed 2d 345 (1965); United States v Fachimi, 466 F2d 53,

56 (CA 6, 1972). In addition, a complaint may thereafter

be amended if additional evidence so requires. The police

and the prosecutor here had sufficient evidence to draft a

3la

complaint and obtain a warrant before or shortly after

defendant was arrested. There was no need, for purposes

of arraignment, to determine whether Knight or defendant

was telling the truth.

The delay was used as a tool to extract the three post-

polygraph statements. Sergeants Ericson, Hoff, and Garri-

son all testified that they asked defendant to submit to a

polygraph so that they could determine whether he was

telling the truth. Although they did not specifically instruct

the examiner to obtain a statement, Sergeant Hoff testified

that they had hoped to obtain another statement if defend-

ant’s original confession proved inaccurate. The police

were obviously attempting to strengthen their case against

all four defendants, particularly White, who had not yet

confessed to any involvement. The three post-polygraph

confessions therefore were not admissible.”’

After reviewing the record, we conclude that the trial

court did not clearly err in finding that defendant’s three

*? Plaintiff suggests that even if an unnecessary pre-arraignment delay

oeeurred, the ultimate test for purposes of the exclusionary rule is

whether the statement obtained was voluntary or coerced. See, e.g., People

v Wallach, 11@ Mieh App 37, 59, fn 5; 312 NW2d 387 (1981), vacated

and remanded on other grounds 417 Mich 937; 331 NW2d 730 (1983);

People v Antonio Johnson, 85 Mich App 247, 252-253; 271 NW2d 177

(1978). Although earlier decisions of this Court could be interpreted in

this manner, see, ¢.g.., People v Farmer, 380 Mich 198; 156 NW2d 504

(1968); People v Ubbes, 374 Mich 571; 132 NW2d 669 (1965); People

v Harper, 365 Mich 494; 113 NW2d 808 (1962); Hamilton, supra, an

examination of White, supra, 392 Mich 424-425, reveals that this Court

now treats the question of pre-arraignment delay apart from the issue of

voluntariness. If voluntariness were the only relevant inquiry, there would

be no reason to analyze whether a pre-arraignment delay oceurred and

was used as a tool, since involuntary statements have always been held

inadmissible regardless of when they are obtained. Prompt arraignment

serves several important functions apart from preventing improper cus-

todial interrogations. See Mallory, supra, —— Mich —— (slip op, p. 5).

32a

pre-polygraph confessions were not improperly induced by

threats or promises.” In light of our prior conclusion that

the post-polygraph confessions are inadmissible, we need

not determine whether they were the product of threats

or promises. Although defendant’s three pre-polygraph

confessions implicated him in the murder at least as an

aider and abettor, a new trial is required. Defendant testi-

fied before the jury that he did not make the first oral

statement and that the two taped confessions were induced

by police threats and promises. The cumulative effect of

admitting seven confessions, as opposed to three, may

have made a difference in the jury’s determination of

credibility.

Vv.

The decision of the Court of Appeals is affirmed in

Bladel and reversed in Jackson. These cases are remanded

to the trial court for further proceedings consistent with

this opinion.

/s/ Micuagi F. CavanacH

/s/ (Illegible]

/s/ Cuarues L. Leon

/s/ Tuomas Gites KavanaGH

28 A review of the police officers’ testimony reveals that if any threats

or promises were made to defendant, they occurred after the second taped

’ statement. Sergeant Ericson testified that he told defendant after the sec-

ond taped statement that the police were primarily after Ms. Perry.

Leniency was not mentioned until after the post-arraignment statement.

Sergeant Garrison stated that defendant may have mentioned not wanting

to go to jail on July 31, but he was informed that the police could not

authorize pleas to less serious offenses. Sergeant Hoff testified that no one

diseussed pleas on July 31. He did mention the possibility of a plea

to seeond-degreee murder if defendant cooperated and if the prosecutor

agreed. However, this diseussion occurred after the polygraph examination.

33a

7-8 April 1984

STATE OF MICHIGAN

SUPREME COURT

No. 69749

Prope or THE State or MicHican, Plaintiff-Appellant,

Rupy Brave, Defendant-Appellee.

No. 69615

PropLe or THE Stare or Micuican, Plaintiff-A ppellee,

Rosert Bernarp Jackson, Defendant-A ppellant.

Berore THE Entire Bencu

Ryan, J. (concurring in part and dissenting in part).

I concur in part ITI-C of my brother Cavanagh’s opinion

with the exception, however, that since the Edwards/

Paintman ruling derives from an analysis of the United

States Constitution, I find it unnecessary and, indeed, in-

appropriate to base the result in these cases upon Const

1963, art 1, § 20.

I do not agree, however, that the record in this case

supports my brother’s conclusion that the **nost-poly-

graph’’ statements given by defendant Jackson are inad-

missible for the reason stated. In my judgment, it is mere

appellate speculation to conclude that the failure to arraign

defendant Jackson during the morning of August 1 was

“‘unnecessary pre-arraignment delay and that the delay

was employed as a tool tv extract these statements.’? That

conclusion carries with it the implicit charge that the

Livonia police contrived to lawlessly delay the defendant’s

arraignment on the mere pretext of completing unneces-

34a

sary ‘‘paperwork,’’ but for the actual purpose of extract-

ing more confessions from him knowing that procedure to

be improper. In my judgment, that conclusion is unsup-

ported in the record.

This Court’s opinion at this appellate remove, four and

one-half years after the event, that the Livonia police may

have had enough evidence at 9:30 a.m. on the morning of

August 1 to obtain a recommendation for a warrant from

an assistant Wayne County prosecuting attorney, and in

turn to obtain an arrest warrant from a district judge,

without benefit of further interrogation of Jackson, might

be correct. If so, the conclusion that it was unnecessary to

delay defendant Jackson’s arraignment until the afternoon

might. likewise be correct. It does not follow therefrom,

however, that the decision of the Livonia police to proceed

with the preparation of a 36-page warrant request, to

conduct a polygraph examination to which the defendant

Jackson had agreed the night before, and to question J ack-

son following the failed ; olygraph examination, decisively

demonstrate that the officers unnecessarily delayed arraign-

ing Jackson as a ruse to ‘‘extract the post-polygraph state-

ments.’’ It is equally plausible, on the record before us,

that the officers honestly believed that they were insuffi-

ciently prepared to request and obtain a warrant in this

major ‘‘murder for hire’’ case until the statutorily re-

quired warrant request was properly completed and ap-

proved, the previously scheduled polygraph examination

was completed, and the defendant was afforded the oppor-

tunity to reconcile, if he wished to, the conflicts it revealed.

See United States v Lovasco, 431 US 783, 791; 97 S Ct

2044; 52 L Ed 2d 752 (1977) (‘‘({P]rosecutors are under

no duty to file charges as soon as probable cause exists

but before they are satisfied they will be able to establish

the suspect’s guilt beyond a reasonable doubt’’).

/s/ James L. Pucu

/s/ James H. BrickLey

7-8/April 1984

STATE OF MICHIGAN

SUPREME COURT

No. 69749

PEroPLe oF THE State or MICHIGAN, Plawtiff-Appellant,

Rupy Buapet, Defendant-Appellee.

No 69615

Prop.e or THE State or MICHIGAN, Plaintiff- Appellee,

Rosert Bernarp Jacxsox, Defendant-Appellant.

Boyte, J. (dissenting).

In People v Jackson, I concur with the part of Justice

Ryan’s opinion regarding the post-polygraph statements.

I would also find that appellant Jackson’s post-arraign-

ment statement, which it is undisputed was a repetition of

the verbal and written statement given on August 1 in

which the defendant confessed that he was the shooter,

was, in light of the overwhelming evidence, if error, harm-

less beyond a reasonable doubt. Chapman v California,

386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967). I would

find in People v Bladel that the Sixth Amendment right

to counsel, which the people concede had attached, was

waived. Brewer v Williams, 430 US 387; 97 S Ct 1232; 51

L Ed 2d 424 (1977), itself permits waiver. In concluding

that waiver did not occur, Justice Stewart for the majority

noted, ‘‘The Court of Appeals did not hold, nor do we,

that under the circumstances of this case, Williams could

not, without notice to counsel have waived his rights under

36a

the Sixth and Fourteenth amendments.’’ Id., pp. 405-406.

_ Justice Stewart further emphasized that the detective ‘‘did

not preface this effort [to elicit a response] by telling

Williams that he had a right to the presence of a lawyer,

and made no effort at all to ascertain whether Williams

wished to relinquish that right.”” 430 US 405. In Bladel

it is clear that when the defendant mentioned he had asked

for an appointed attorney he was asked if he wanted an

attorney present and the defendant stated that he did not

need one. I would find an intentional relinquishment of a

known right.

While I recognize both the importance of the Sixth

Amendment right to counsel and the appeal of the sym-

metrical application of Edwards v Arizona, 451 US 477;

101 S Ct 1880; 68 L Ed 2d 378 (1981), and People v Paint-

man, 412 Mich 518; 315 NW2d 418 (1982), I am uncon-

vinced without further guidance from the United States

Supreme Court that we are constitutionally obligated to

reach this result.

/s/ Parricta J. BacLe

37a

APPENDIX -B

CIRCUIT CGURT OPINION

Tue Covrt: All right, thank you. Well, as to the inter-

rogation of January 1, 1979, the Court finds that the prose-

cution has borne the burden of showing that that was a

voluntary statement such as it was based upon the proper

[108] advice of the defendant or to the defendant of his

Miranda rights and that he knowingly and voluntarily,

orally waived them. And, the same applies as to the state-

ment interrogation of January 2, 1979.

As to the statements and confessions of March 26, 1979,

the Court also finds that the rights were properly given

to the defendant and that he knowingly waived them after

acknowledging that he understood them.

Now, I understand the position of the defendant to the

effect that he did demand counsel on March 23rd at his

arraignment in District Court. Now, whether or not counsel

was appointed by March 26th, incidentally, March 23rd,

1979 was a Friday and March 26th, 1979 was a Monday.

And, whether or not counsel had been appointed and had

an opportunity to consult with the defendant before the

interrogation does affect the voluntariness and the affec-

tiveness of the waiver of the rights. |

Now, I don’t know of any case why counsel had been

appointed but hadn’t had a chance to censult with the de-

fendant before he was again interrogated and didn’t have

a chance to either advise the defendant the he shouldn’t

say anything or that he should not say anything without

the presence of counsel. But, there is no case that I know

of that says Miranda goes that far and so the holding is

that the testimony or the substance of the statements

of all [109] three occasions and the confessions will be

admissible.

38a

APPENDIX C

MOTION TO SUPPRESS OR IN ALTERNATIVE

FOR A WALKER HEARING

[Filed July 3, 1979]

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR

THE COUNTY OF JACKSON

File No. 79-017105-FY

Tue Prope oF THE State or Micuiaan, Plaintiff

vs.

Rupy Buiapet, Defendant

Hon. Russell FE. Noble

Comes Now Rudy Bladel, by and through his attorney,

Douglas L. Williams, and hereby moves this Court to sup-

press the confession given to police officers or in the alter-

native, that the Court will hear evidence given to support

a factual basis to suppress the aforementioned confession

and in support gives the following:

That the defendant was arrested in Elkhart, Indiana, on

March 22, 1979, and charged with the murder of three

Conrail employees on or about December 31, 1978.

That he was returned to Jackson, Michigan on March

29, 1979 and arraigned before the Honorable Robert Crary,

Jr., District Judge for the 13th District on March 23, 1979.

(See Transcript of 13th District Court Arraignment.

39a

That on March 23, 1979, the Court inquired as to the

Defendant’s intentions for retaining an Attorney (AT

PP 4) |

That the defendant answered the Court and did then

and there declare his indigency and request Court Ap-

pointed Counsel. (AT PP 4, L-]6).

That this Court Appointed the Law Firm of Adams,

Goler & Williams by letter dated March 23, 1979.

That the District Court set the preliminary examination

date for April 3, 1979.

That on January 1, 1979 the defendant was arrested,

given his rights, and informed of his right to counsel, and

questioned TP ]37

That the defendant refused to answer questions on Janu-

ary 1, 1979. |

That the defendant was again questioned on January 3,

1979 and informed of a right to counsel and at such time

no statement was given.

That at 9:25 on March 22, 1979, the defendant was given

his rights and again questioned and the defendant did not

confess any crime.

That the defendant was again questioned on March 26,

1979, at ]2:42 p.m. He was advised of his right to counsel

but none was present.

That the defendant gave a confession after questioning

on March 26, 1979, without the benefit of counsel that he

had requested on March 22, 1979.

That the letter appointing Adams, Goler & Williams was

received on March 27, 1979 at 11:45 a.m.

Wuererore the defendant moves this honorable court

that the confession taken on March 26, 1979 be suppressed

and ordered not used in the trial in this matter or in the

40a

alternative, that this court order that evidence be sub-

mitted to determine the voluntariness of the said confession.

/s/ Doveias L. WiLLiaMs

Douglas L. Williams

Attorney for defendant

715 West Michigan Avenue

Jackson, Michigan, 49201

787-8343

4la

APPENDIX D

DIGEST OF CONFLICTING CASES

United States v Clements, 713 F2d 1030 (Fourth Circuit

1983). (Post indictment confession. Remand to District

Court to determine if Defendant had been informed of the

existence of the indictment against him. Apparently,

Miranda warnings plus informing of existence of indict-

ment is necessary Sixth-Amendment waiver.)

United States v Estelle, 604 F2d 983 (Fifth Circuit 1979).

(Defendant requested court appointed counsel at arraign-

ment. Subsequent police initiated interrogation was proper.

Request for counsel at arraignment did not indicate a

desire not to speak to police. Miranda rights given and

waived. Confession properly admitted, request for counsel

at arraignment does not bar police interrogation nor did

an interrogation impinge on exercise of Defendant’s

rights. )

State v Wyer, 320 SE2d 93 WVa (1984). (Defendant ar-

raigned by a Magistrate and requested-founsel. Held:

Defendant can waive Sixth Amendment right to eounsel

in absence of counsel. Sixth Amendment waiver « higher

standard requiring Miranda warning, written waiver and

Defendant must be informed he is under arrest and be in-

formed of each of the charges against him. General Request

for counsel at arraignment does not invoke Fifth Amend-

ment right triggering Edwards v Arizona.)

United States v Madley, 502 F2d 1103 (Ninth Circuit

1974). (Interrogation by Federal agents in absence of De-

fendant’s counsel appointed in state parole violation pro-

ceedings did not violate the spirit of Wassiah v United

States.)

Fields v Wyrick, 706 F2d 879 (Eighth Circuit 1983).

(Three months after being charged, Defendant took a poly-

graph on counsel’s advice. The polygrarh showed decep-

42a

tion, Defendant made inculpatory statements in explaining

deceit. Defendant had been advised of Miranda rights and

signed a waiver. Held: In context of case, waiver of either

the Fifth or Sixth Amendment right to counsel is judged

by same standard, waiver of Miranda rights was volun-

tary, knowing and intelligent abandonment of Sixth Amend-

ment right to presence of counsel.)

Coughlan v United States, 391 F2d 371 (Ninth Circuit

1968). (Defendant was interrogated by police after ap-

pointment of counsel. The police were aware of appoint-

ment. Defense argues confession only knowing and truly

voluntary when counsel is present to advise client. Held:

Right to counsel can be waived in absence of counsel and

was waived in the instant case.)

United States v Brown, 569 F2d 236 (Rehearing en banc

reversing 551 F2d 639). (Fifth Cireuit 1978). (Defendant

charged under the state statute and appointed counsel.

Federal agents interviewed Defendant at the courthouse

on related federal charges. Defendant advised of and waived

Miranda rights. Held: Waiver of Miranda warnings suf-

ficient to waive any right to counsel therefore Sixth Amend-

ment rights not violated.)

United States v Payton, 615 F2d 922 (First Circuit

1980). (Post-indictment, pre-arraignment confession. Mi-

anda rights stated and waived. Defendant aware of indict-

ment. Held: Miranda rights sufficient for Sixth Amend-

ment waiver.)

Robinson v Percy, 738 F2d 214 (Seventh Circuit 1984).

(Defendant arrested in New Hampshire on Wisconsin mur-

der. After some interrogation and request for counsel,

interrogation ceased. Police then reinitiated interrogation.

Motion to Suppress denied. Habeas Corpus dismissed where

advice and waiver of Miranda warnings amounted to waiver

of Sixth Amendment right to counsel. The court analyzed

waiver of Sixth Amendment right to counsel on individual

43a

circumstances of each case.) (See also: State v Norgaard,

653 P2d 483 (Mont. 1982) and State v Burbine, 451 A2d

22 (R.I. 1982)).

United States v Campbell, 721 F2d 578 (Sixth Circuit

1983). (Defendant taken before a Magistrate after arrest,

and was appointed counsel. Secret Service then took the

Defendant to their office where they interrogated him with-

out the presence of court appointed counsel. Secret Service

agents were present when Magistrate advised Defendant of

Miranda rights. The Court found indifference to De-

fendant’s right to counsel and a Fifth Amendment viola-

tion under Edwards.)

State v Sparklin, 296 Oregon 85, 672 P2d 1182 (1983).

(Defendant confessed during police initiated interrogation

subsequent to Defendant’s request for court appointed

counsel at arraignment. Mianda rights were given and

waived. The Court ruled the request to be invocation of

Sixth but not Fifth Amendment right to counsel. Held:

No interrogation by police can be proper after Sixth

Amendment request for counsel without notice to counsel

giving him a reasonai!e opportunity to attend.) (672 P2d

at 1187).

United States v Brown, 699 F2d 585 (Second Circuit

1983). (Post-indictment, pre-arraignment and appointment,

government initiated interrogation. Miranda rights given

and waived. Held: Warnings under Miranaa insufficient to

meet higher standard for waiver to right to counsel under

Sixth Amendment.)

Silva v Estelle, 672 F2d 457 (CA 5 1982). (State Court

Defendant arraigned and requested permission to call his

lawyer. At arraignment, Magistrate informed Defendant

of his Miranda rights. Officer present at arraignment ques-

tioned Defendant immediately after arraignment. Held:

Re-interrogation after invocation of right to counsel fol-

lowing Miranda rights violated Edwards v Arizona. The

44a

court misconstrued Edwards to apply to Sixth Amendment

cases as well as Fifth Amendment cases.)

Umited States v Satterfield, 558 F2d 655 (Second Circuit

~976). (Confession after arraignment and request for

counsel violated Sixth Amendment right by failure to reach

the higher standard of waiver.)

United States v Mohabir, 624 F2d 1140 (Second Circuit

1980). (Post-indictment statement made to Prosecutor.

Miranda warnings are insufficient for higher standard

waiver for Sixth Amendment rights. Defendant must un-

derstand the significance of indictment and the gravity of

his position. Exercising ‘spervisory powers, in light of the

practice in the Second Circuit, apparently in violation of

the Code of Professonal Responsibility, the court now re-

quires full comprehension of rights by Defendants and

advice of warnings by a judicial officer rather than by the

Prosecutor. )

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.