Petitioners Brief — Michigan v. Bladel

pan Office -Supreme Court

. S US

Ir \ FILED =]

No. 84-1539 JUL 1792 1985

ALEXAND

CLERK

AS,

In The

Supreme Court of the United States

October Term, 1984

STATE OF MICHIGAN,

Petitioner,

RUDY BLADEL,

Respondent.

BRIEF FOR PETITIONER

Brian E. Tureve (P32796)

Chief Appellate Attorney

Jackson County

Prosecutor’s Office

312 S. Jackson Street

Room 300

Jackson, Michigan 49201

(517) 788-4274

PETITION FOR CERTIORARI FILED March 28, 1985

CERTIORARI GRANTED May 28, 1985

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

BEST AVAILABLE COPY ©

QUESTIONS PRESENTED

Rudy Bladel was convicted by jury trial for the mur-

ders of three individuals. Admitted at trial was a state-

ment 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 vio-

lated 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 state in

the proceedings such that the Sixth Amendment right to

the presence of counsel is applicable?

2. Whether the Michigan Supreme Court erred in

holding that the Sixth Amendment of the United States

Constitution requires a “bright line’’ rule prohibiting po-

lice initiated interrogation after a criminal defendant has

requested appointment of counsel at initial arraignment?

3. ‘Whether the interests protected by the Sixth

Amendment 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 a criminal defendant’s

then existing Sixth Amendment rights?

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TABLE OF CONTENTS

Page

Questions Presented i

Table of Contents il

Table of Authorities ili

Opinions Below

Jurisdiction

1

1

Constitutional Provisions Involved 1

Statement of the Case . 2

7

9

Summary of the Argument

Argument

The Interests of Corporate Society 12

The Fifth Amendment Ait 13

Edwards v Arizona Was not Violated 16

The Sixth Amendment ... 21

The Sixth Amendment Had Not Attached 24

Any Sixth Amendment Right To Counsel Was

Waived 26

Miranda Warnings Lay A Proper Foundation For

Sixth Amendment Waiver . 32

The Sixth Amendment Right Requires No Ed-

wards Protection 33

The Michigan Rule Results In Confusion Not |

Clarification 42 [

I 44

ili

TABLE OF AUTHORITIES

CasEs: Page

Anonymous v Baker, 360 US 287, 290-291 (1959)... 24

Berkemer v McCarty, — US —; 104 SCt 3138, 3150,

Note 27, 82 LE2d 317 (1984) ...... 14, 43

Blasingame v Estelle, 604 F2d 893, 896 (Fifth Cir-

I Cee 6, 14, 36, 37, 38

Brewer v Williams, 430 US 387 (1977)....24, 27, 28, 29, 33, 42

Edwards v Arizona, 451 US 477 (1981)... 6, 7,8, 16, 17, 18,

19, 20, 34, 37, 40, 42, 43

Eseobedo v Illinois, 378 US 478 (1964) 0. nee 24, 27, 28

Faretta v California, 422 US 806 (1975) 31

Fisher v United States, 425 US 391, 397 (1976)... 8

Johnson v Commonwealth, 55 SE2d 525 (VA, 1979)... 38

Johnson v Zerbst, 303 US 458 (1937) 14, 33, 41

Jordan v Watkins, 681 F2d 1067 (CA 5, 1982) 00000. §=88

Kirby v Illinois, 406 US 682 (1972) 0. 28, 24

Massiah v United States, 377 US 201, 207 (1964)...12, 26, 27

Michigan v Mosley, 423 US 96 (1975) 0000 38, 39, 40

Miranda v Arizona, 384 US 436, 458-460... 13, 14, 15, 16, 19,

24, 39, 42, 44

Nash v Estelle, 597 F2d 513 (5th Cireuit, 1979)... 6, > =

New York v Quarels, 467 US —-, —: 104 SCt 2626

(1984) 14

North Carolina v Butler, 441 US 369, 373 (1979).......... 15, 33

Oregon v Bradshaw, — US —:; 103 SCt 2830, 2834

(1983) . 18

Oregon v Elstad, 470 US 105 SCt 1285; 84 LE2d 222,

229 (1985) 14, 44

ia |

iv

TABLE OF AUTHORiTIES—Continued

CasEs: Page

People v Bladel, 118 Mich App 498; 325 NW2d

421 (1982) 6

People v Bladel and People v Jackson, 421 Mich 79;

365 NW2d 56 (1985)... a | & f

People v DeFore, 242 NY 13, 21; 150 NE 585, 587

(1926) 44

People v Weston, 413 Mich 372; 319 NW2d 537 (1982) 25

Powell v Alabama, 287 US 45 (1932) . 22, 26

Rhode Island v Innis, 446 US 291, 300, Note 4 (1980)... 32

Silva v Estelle, 672 F2d 457 (CA 5, 1982) 0. . 39

Smith v Illinois, 469 US —, 105 SCt 490: 83 I.Ed2d

GE I cieliteissicacitieecdteacets 36

South Dakota v Neville, 459 US 553, 562 (1983)... 13

Spano v New York, 306 US 315, 315-316 (1959). 11,12

United States v Ash, 413 US 302 (1973) 200 21, 22, 23

United States v Gouveia, — US —; 104 SCt 22992,

2296 (1984) ............. ta 23, 24, 25

United States v Henry, 447 US 264, 270 (1980)......27, 29, 30,

32, 44

United States v Karr, 742 F2d 493 (9th Circuit,

1984) . ainaane 33

United States v Leon, — US —; 104 SCt 3405,

ON iii 30, 42, 43

United States v Wade, 388 US 218 (1967) 0. 23

United States v Washington, 431 US 181, 185 (1977)... 12

Wan v United States, 266 US 1, 14-15 (1929) 00 14

OPINIONS BELOW

The Opinion of the Michigan Supreme Court is pub-

lished at 421 Mich 79; 365 NW2d 56 (1985). The Michigan

Supreme Court’s prior remand order is published 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 Cireuit Court was

neither published nor written, but is contained in the Joint

Appendix pp 114a-115a.

JURISDICTION

The judgment of the Michigan Supreme Court was

released on January 29, 1985. The Petition was filed less

than 60 days from the date aforesaid. The Petition was

granted on May 28, 1985. The jurisdiction of this court

is invoked under 28 U.S.C. Section 1257 (3).

0-

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Amendment VI:

“Tn all criminal prosecutions, the accused shall enjoy

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

defence.’’

Constitution of the United States, Amendment XIV, Sec-

tion 1:

“ ... nor shall any state deprive any person of life,

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

ee

2

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. (JA 12a, 15a, 17a R 528, 532). During

the first interview Respondent admitted that he was pres-

ent in Jackson on December 31. (JA 16a R 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. (.JJA 18a-2la R 533-537).

There was no further police contact with Respondent

until March of 1979 when a shotgun was found on the out-

skirts of Jackson and was scientifically determined to be

the murder weapon. Federal firearms records showed that

Respondent had purchased the shotgun in Indiana. (R 538).

A warrant was issued for the arrest of Respondent. He

was arrested in Elkhart, Indiana on March 22, 1979. (JA

22a). Respondent waived extradition from Indiana. (R

539, JA 29a-30a). During the waiver hearing, Respondent

was advised of, but declined, the right to representation by

counsel. (R 539, 572, 683-684, JA 29a-30a).

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 inter-

viewed by Jackson Police. (R 540-575). Prior to this in-

terview, Respondent was advised of his rights including

his right to consult a lawyer before answering any ques-

tions, 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. (R 541-542, JA 22a-

26a). Detective Rand also read to Respondent a written

rights form which Respondent also read. Respondent

signed the acknowledgment and waiver portion of the ad-

vice of rights form (indicating that he would talk to the

police) and waiving the presence of an attorney. (R 542,

JA 26a). This questioning was terminated when Respond-

ent failed to answer any further questions. (R 545, JA 28a).

The Respondent was arraigned in District Court on

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

Detective Rand. (JA 2a). The pertinent events at ar-

raignment are recorded as follows:

THE COURT: Now, because these are very seri-

ous charges which are brought

against you, have a right to be rep-

resented by an attorney, at all

stages of the proceedings, includ-

ing the preliminary examination I

just mentioned. If you want one.

If you cannot afford an attorney,

then you may petition the Cireuit

Judge of this County for the ap-

pointment of an attorney to rep-

resent you at public expense. Now

my first question to you is this.

Do you intend to retain your own

attorney?

THE DEFENDANT: I don’t have the money.

THE COURT: Do you wish to have one appointed

for you?

THE DEFENDANT: Yes, sir.

THE COURT: All right sir. I’ll place an affi-

davit in the file for you to make

out for that purpose. Until you

have a chance to talk with an at-

torney, the Court would strongly

recommend that you stand mute,

that means say nothing. If you do

this, the Court will enter a plea

of not guilty for you and set the

matter for preliminary examina-

tion. Is that what you wish to do?

THE DEFENDANT: Right sir.

(JA 3a-4a).

On March 26, 1979, Sergeant Richard Wheeler and

Lieutenant Ronald Lowe interviewed the Respondent in

the County Jail. (R 589, JA 39a}. The Respondent was

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

Wheeler read another copy to Respondent. (JA 40a). The

Respondent was advised of each right individually. (JA

40a-41a). He responded affirmatively when asked if he

understood each right. (JA 40a-41a). Respondent was

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

cated he understood. Respondent signed the waiver and

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

(JA 41a). At no time during the interview did the Re-

spondent ask to have any attorney present or to contact

an attorney. (JA 43a). Neither Wheeler nor Lowe were

aware of Respondent’s request for appointment of coun-

sel made at arraignment until Respondert told them at the

point during the advice of rights when counsel is men-

tioned. (JA 47a-48a). Respondent was then specifically

asked if he wanted an attorney present at that time and

the Respondent stated, “No.’’ (JA 49a). Wheeler testified

that when the Respondent mentioned that he had asked

for court appointed counsel Wheeler asked Respondent

4)

if he wanted an attorney present, to which Respondent re-

plied, “I do not need one.’’ (JA 52a). Lieutenant Lowe

testified to this recollection of the events:

Mr. Bladel at that time stated that he had requested

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

him, seen the attorney yet, but 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.

(JA 55a).

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.’ (JA 62a).

During this interview, Respondent confessed to the three

murders, orally and in writing.

Respondent did not have any contact with his attorney

until the day after his confession. (JA 76a). In addition

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

this case, Respondent had been advised of his rights pre-

viously and was aware of his rights from this past ex-

perience. (JA 80a).

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, incident-

6

ly March 23, 1979 was a Friday and March 26, 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 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 ad-

missible. (JA 114a-11l5a).

The Michigan Court of Appeals affirmed following

the reasoning of the Fifth Circuit cases of Nash v Estelle,

597 F2d 513 (5th Cir 1979) and Blasingame v Estelle, 604

F2d 893 (5th Cir 1979). People v Bladel, 106 Mich App

397 ; 308 NW2d 230 (1981). The Michigan Supreme Court,

in beu of granting Respondent’s Application for Leave to

Appeal, remanded to the Court of Appeals for reconsid-

eration in light of People v Paintman and People v Conk-

lin, 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. The Court concluded

that the Sixth Amendment precludes further police-in-

itiated interrogation after a request for counsel is made

to a judicial officer by “analogy’’ to this Court’s case of

Edwards v Arizona infra, which requires such preclusion

under the Fifth Amendment where the defendant requests

counsel during custodial interrogation.

SUMMARY OF ARGUMENT

Respondent’s confession was properly admitted at

trial. Prior to his confession, Respondent was advised

of his rights by way of “Miranda Warnings”. Respondent

indicated he understood his rights, including the right

to the presence of counsel, and he signed a waiver of those

rights. There was no physical or psychological compul-

sion used to obtain Respondent’s confession. There was

no violation of Respondent’s Fifth Amendment rights.

Police-initiated interrogation was not prohibited even

though Respondent had requested appointment of counsel

at his District Court arraignment which preceded the in-

terrogation. Edwards v Arizona, 451 US 477 (1981) pro-

hibits police-initiated interrogation after a criminal de-

fendant has invoked his right to the presence of counsel

during interrogation. Respondent’s request for appoint-

ment of counsel, under the facts of this case, related only

to representation during judicial proceedings. Therefore,

further police-initiated interrogation could not badger Re-

spondent into unwillingly relinquishing a right previously

asserted and Edwards was not violated.

At the time of the challenged interrogation, Respond-

ent had only been arraigned in District Court which had

no jurisdiction to render a final determination of guilt.

Therefore, no critical stage of the proceeding had been

reached and Respondent’s Sixth Amendment rights had

neither attached nor could they have been violated.

If Respondent’s Sixth Amendment rights had attached,

those rights were waived prior to the counselless inter-

rogation. As concerns pre-trial interrogation, the scope

of the Sixth Amendment right to counsel is the same as

the Fifth Amendment - Miranda right to counsel. The

voluntary waiver of the right to the presence of counsel

after Miranda warnings sufficed as a waiver of whatever

right to counsel Respondent enjoyed at that moment re-

gardless of the Constitutional source of that right.

There is no reason to create an Edwards type rule

to preclude police-initiated interrogation after a request

for appointment of counsel at initial arraignment where

that request does not indicate a desire to deal with police

only through counsel. Criminal defendants may well want

the aid of counsel during judicial proceedings yet still

desire to confess to police. Police-initiated interrogation

does not risk unwilling relinquishment of a right previous-

ly invoked because the right to the presence of counsel

during interrogation had not been invoked by Respond-

ent’s request for appointment of counsel. Society’s in-

terest in prompt and efficient law enforcement is ad-

vanced by allowing such interrogation. The burden placed

on the criminal defendant is minimal; he need only invoke

his right to the presence of counsel when he is asked, be-

fore interrogation, if he is willing to waive that right. Post-

initial arraignment police-initiated interrogation should be

allowed.

Unlike this court’s “bright line” cases which are de-

signed to clarify the constitutional constraints on police

activity, a rule prohibiting police-initiated interrogation

after a request for counsel at arraignment only obscures.

‘*Bright line” cases share the common elements of police

presence at the event and control of the situation. Police

are not always present and are never in control of ar-

raignment procedures. To control police conduct in ac-

cordance with events they may not observe, or procedures

they do not control and the significance of which they may

be uncertain, would not only give little guidance, but would

significantly increase the risk that reliable confessions

would be suppressed because the constable bungled. Such

a rule would engender disrespect for the law and the ad-

ministration of justice and thus, should not be adopted by

this court.

ARGUMENT

Before becoming enmeshed in the Constitutional ques-

tions presented by this case, it is important that the —

analytical place of beginning be established. Just as the

traveler must first plot his own location so that he can

properly set his azimuth for his destination, the would-be

10

constitutional sojourner must firmly place his feet on the

bedrock of the Constitution with eyes firmly fixed on the

path of justice which our system demands.

That portion of the constitutional foundation upon

which the analysis of the present questions must be built

is the cornerstone at which the interests of society over

against those of the individual intersect and are bal-

anced. The founding Fathers recognized that, in the so-

ciety they were building, neither the interests of society

nor the individual could dominate to the exclusion of the

other. The Constitutional Convention in its letter to

Congress of September 17, 1787 recognized the challenge

of establishing balances between individual and societal

rights and their similarity to the balancing of Federal and

State interests. The Convention wrote:

—individuals entering into society, must give up a

share of liberty to preserve the rest. The magnitude

of the sacrifice must depend as well on situation and

circumstances as on the object to be obtained. It is

at all times difficult to draw with precision the line

between those rights which must be surrendered, and

those which may be reserved; .. .’

The balance of the competing individual and societal in-

terests embodied within the Constitution is a composite

of the multifarious ideologies which composed the colonial

mind and found harmony in the theme of liberty.’ This

concept of ordered liberty rejected both the anonymity of

1Clinton Rositer, The Grand Convention, The New Ameri-

can Library, Inc. New York, New York, 1966 Pages 342-343.

2Clinton Rositer, The First American Revolution, Harcourt,

Brace, & World, Inc., 1956, Pages 188-191.

11

the individual characteristic of monarchical and aristo-

cratic government and exultation of the individual found

in anarchy and even to some degree in our own Articles

of Confederation.

Equally important to the establishment of constitu-

tional principles was the colonial view of the nature of

Man which was a matter of considerable controversy. De-

spite the areas of disagreement, the general impact of the

Enlightenment prompted a high view of Man. Metaphys-

ically, Man was viewed as both rational and free, thus, as

a free moral agent, responsible for his actions. This view

of Man is fundamental to our criminal justice system

which establishes a standard of behavior and authorizes

society at large to punish the individual for failure to

attain that standard.

Despite the fact that the foundational balance between

individual and societal rights has already been established

by the framers of the Constitution, this court has been

regularly called upon to engage in the balancing of in-

terests between the rights of society and the criminal

defendant. As the late Chief Justice Warren stated in

Spano v New York, 306 US 315; 315-316 (1959) :

As in all such cases, we are forced to resolve the

conflict between two fundamental interests of society ;

its interests in prompt and efficient law enforcement,

and its interests in preventing the rights of its in-

dividual members from being abridged by unconsti-

tutional methods of law enforcement.

3Clinton Rositer, The Political Thought of the American

Revolution, Harcourt, Brace & World, Inc., New York, 1963,

Pages 95-114.

12

It is apparent from the quotation from Spano that this

court’s role in the balancing of interests between society

and the individual involves the balancing of rights in

ever changing circumstances in accord with the unchang-

ing balance established by the principles embodied in the

Constitution.

The Interests Of Corporate Society

The fundamental interest of corporate society is for

prompt and efficient law enforcement. Spano, supra. The

result of prompt and efficient law enforcement is convic-

tion of the guilty. To accomplish conviction of the guilty,

law enforcement officials must have available all means

which produce reliable evidence without impingement of

the criminal defendant’s constitutional rights.

One of the most important sources of evidence is the

defendant himself. The court has recognized the value

of confessions on several occasions:

Indeed, far from being prohibited by the Constitution,

admissions of guilt by wrong-doers, if not coerced,

are inherently desireable. United States v Washing-

ton, 431 US 181, 185 (1977).

In Massiah v United States, 377 US 201, 207 (1964), this

court recognized that it was appropriate for government

agents to continue investigation of a defendant’s activi-

ties even after the defendant had been indicted. Since

statements from defendant’s are an appropriate object

of governmental investigation, the fundamental interests

of society are furthered, at no cost to the rights of the

defendant, when, as in the instant case, government offi-

cials obtain a voluntary confession from the defendant

-~e>

13

whether before arrest or after indictment. The incon-

sistent holding of the Michigan Supreme Court should be

reversed.

As the focus turns towards the rights of the individual

defendant, the words interrogation and counsel contained

in the facts of this case draw attention immediately to

the Fifth Amendment guarantee against compelled self-

incrimination and the Sixth Amendment guarantee to the

assistance of counsel as both of these protections have

been applied to the States through the due process clause

of the Fourteenth Amendment.

The Fifth Amendment

The core protection afforded by the Fifth Amend-

ment, clear from the language cf the Amendment itself,

is that a criminal defendant cannot be ‘‘compelled in any

criminal case to be a witness against himself ...”. This

portion of the Fifth Amendment has two key aspects:

it applies to testimonial evidence, obtained by compulsion.

South Dakota v Neville, 459 US 553, 562 (1983). Fisher

v United States, 425 US 391, 397 (1976). At its root, the

Fifth Amendment privilege was designed to protect against

both unreliable evidence which can result from compelled

statements and to avoid the indecency of such proceedings

as the inquisitorial court of Star Chamber, where failure

to give self-incriminating testimony resulted in a breach

of the Star Chamber oath and consequent punishment.

Miranda v Arizona, 384 US 436, 458-460 (1966).

The consistent liberal construction of the Fifth Amend-

ment applied by this court has resulted in the expansion

of the protection of the Fifth Amendment beyond the

14

courtroom to custodial interrogation such as that at issue

in the instant case. Miranda, 384 US 436, 360-361.

At least in the view of its author, Miranda did not

create new substantive rights but merely developed the

procedural requirements designed to provide “practical

reinforcement” for the Fifth Amendment rights. New

York v Quarels, 467 US —, —; 104 SCt 2626 (1984). The

reinforcement was designed to off-set the presumed in-

herent, psychological compulsion present in custodial in-

terrogation. Oregon v Elstad, 470 US —, 84 LE2d 222,

229 (1985). The aim of the Miranda warnings was to

give an objective basis for the determination of whether

the Fifth Amendment right, as articulated in Miranda,

had been waived under the standard articulated by this

court in Johnson v Zerbst, 303 US 458 (1937).

The procedural right articulated in Miranda of par-

ticular relevance to the instant case is the right to the

presence of counsel during custodial interrogation. 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 interrogation.

Blasingame v Estelle, 604 F2d 893, 896 (Fifth Cireuit,

1979). The Fifth Amendment right to counsel is designed

to protect a defendant in the exercise of his right to

remain silent assuring that any statements are not ob-

tained through coercion or trickery. Perkemer v McCarty,

— US —; 104 SCt 3138, 3150, Note 27; 82 LE2d 317

(1984).

The Miranda warnings were not designed to prohibit

confessions, rather they were designed to insure that any

confession made is uncoerced. As this court said in Wan

15

v United States, 266 US 1, 14-15(1929) and reaffirmed in

Miranda, 384 US 436, 462, ‘‘a confession may be given

voluntarily, although it was made to police officers while

in custody and in answer to an examination by them.”

Thus, the question to be resolved in the Fifth Amendment

aspect of the analysis of this case is whether the confes-

sion given by Respondent was voluntary under the stand-

ards articulated in Miranda.

There is no record evidence of any physical punish-

ment or deprivation used to manipulate the defendant

into confessing, thus, there was no physical coercion which

would vitiate the voluntariness of defendant’s confession.

Secondly, as testified to during the Walker hearing, Re-

spondent was carefully advised of his Fifth Amendment

rights in accordance with this court’s opinion in Miranda.

With each portion of the advice of rights, defendant was

asked if he understood the right explained and if he was

willing to waive those rights. Respondent indicated that |

he understood his rights and wished to waive them. Ulti-

mately, defendant signed a written waiver of his consti-

tutional rights which is indicative of a voluntary waiver.

North Carolina v Butler, 441 US 369, 373 (1979).

Respondent was specifically advised of his right to

have counsel present during interrogation and when asked

if he desired to have an attorney present, he stated ‘‘I

don’t need him present. I am going to plead guilty any-

way.” (JA 62a). The facts of this case demonstrate

that Respondent was fully advised of his rights such that

any waiver was knowingly and intelligently made. As

well, since any psychological conclusion was overcome by

the advice of rights and since there was no physical com-

pulsion involved, defendant’s waiver of his constitutional

16

rights and subsequent confession were voluntary and the

trial court properly admitted the evidence. On this point,

all agree.

Edwards v Arizona Was Not Violated

The real controversy in this case arises over the im-

plications of the fact that the confession was obtained

after defendant had requested appointment of counsel at

his initial arraignment. The Michigan Supreme Court

held that the request for appointment of counsel at ar-

raignment precluded further police-initiated interrogation

through analogous application of this court’s decision in

Edwards v Arizona, 451 US 477 (1981). Though the

Michigan Supreme Court rightly held that there was no

Fifth Amendment violation and thus no direct violation

of Edwards v Arizona, which was limited by this court

to Fifth Amendment analysis, it is appropriate to briefly

address the question of the Fifth Amendment implica-

tions of the arraignment request for counsel.

This court’s decision in Edwards v Arizona, was a

clarification of the statement in Miranda that upon an

accused’s request for the presence of counsel, ‘‘the inter-

rogation must cease until an attorney is present.” Muiran-

da, supra, 384 US at 474. In Edwards, during custodial

interrogation conducted by police, defendant requested

the presence of his counsel. Edwards, supra, 458 US at

479. At that point, interrogation was terminated but the

next morning, a guard came to Edwards’ cell to inform

him of the detectives’ desire to talk to him. Edwards re-

plied 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 detective. Edwards was advised of his

17

‘*Miranda rights” which he waived. Edwards then con-

fessed. Edwards, 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 ques-

tion whether the relinquishment of the right to counsel

was knowing and intelligent. The effect of the Miranda

Rule is to make the police the legal advisor of a defendant

in the initial phase of custodial interrogation. Thus, Ed-

wards 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.

‘he initial cessation of interrogation upon Edwards’

request for counsel would indicate tc 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 ex-

isted. 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

question because police-initiated reinterrogation is a re-

18

quest 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. In-

consistent behavior is asked of the defendant. Thus, the

voluntariness of this confession is called into question

because any change of mind by defendant has come at

the behest of the police. Reinterrogation in the circum-

stances of Edwards directly impinged upon the defend-

ant’s Fifth Amendment right to the presence of counsel

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 at 486. The reappearance of police without the

presence of counsel impinged on that right. The Edwards

rule is a “prophylactic rule, designed to protect an ac-

cused in police custody from being badgered by police

officers” who repeatedly attempt to persuade the defend-

ant to relinquish his rights. Oregon v Bradshaw, — US

—; 103 SCt 2830, 2834 (1983). Thus under Edwards a

confession obtained after a defendant had requested to

deal with police only through counsel can only be volun-

tary if the reinterrogation is initiated by the defendant

and is followed by voluntary waiver of his Fifth Amend-

ment rights.

The question to be resolved in the instant case is

whether. Respondent’s request at arraignment for appoint-

ment of counsel is the type of invocation of the right to

counsel which indicates a desire to deal with police only

through counsel and which requires the prophylactic rule

of Edwards to protect the defendant’s constitutional

rights.

19

Both Miranda and Edwards dealt exclusively with the

setting of police-initiated interrogation. In each of those

cases, the only right to counsel which the defendant en-

joyed at the relevant time was the Fifth Amendment right

to have counsel present during custodial interrogation. In

Edwards, the defendant invoked this right, but after a

delay the police reinitiated interrogation. Thus, there

was a narrow right invoked in its fu''»st extent, which

the defendant was later asked t« waive. In the instant

ease, defendant never invoked his right to have counsel

present during interrogation. As noted in the Statement

Of The Case, defendant was interrogated numerous times

before his arrest and on a couple of occasions after his

arrest. At each time, defendant was advised of his Miran-

da rights which he waived. The only time that defendant

requested counsel was during his arraignment. In order

to understand the nature of the right invoked by defend-

ant at the arraignment, the arraignment transscript must

be reviewed. The following occurred at Respondent’s

arraignment :

THE COURT: Now, because these are very seri-

ous charges which are brought

against you, you have a right to

be represented by an attorney, at

all stages of the proceedings, in-

cluding the preliminary examina-

tion I just mentioned. If you want

one. If you cannot afford an at-

torney, then you may petition the

Cireuit 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

your own attorney?

20

THE DEFENDANT: I don’t have the money.

THE COURT: Do you wish to have one appointed

for you?

THE DEFENDANT: Yes, sir.

THE COURT: All right, sir. I’ll place an affi-

davit in the file for you to make

out for that purpose. Until you

have a chance to talk with an attor-

ney, the Court would strongly ree-

ommend that you stand mute, that

means say nothing. If you do this,

the Court will enter a plea of not

guilty for you and set the matter

for preliminary examination. Is

that what you wish to do?

THE DEFENDANT: Right sir.

(JA 3a-4a).

The right which Respondent invoked at arraignment was

only that right which was explained to him by the arraign-

ing Magistrate. The right explained by the arraigning

Magistrate was only the right to have counsel represent

Respondent at the preliminary examination and there-

after in the judicial proceedings. The arraigning Magis-

trate in no way expressly or impliedly indicated that the

scope of the right to counsel which would be invoked by

a request for the appointment of counsel related to police

interrogation. There is nothing in this record to indicate

the defendant desired to deal with police only through

counsel.

Since defendant had at no time indicated a desire to

deal with police only through counsel, there could he no

badgering by police as was the case in Edwards, and thus

no need for a prophylactic rule to assure preservation

21

of the defendant’s rights. As the Michigan Supreme

Court properly held, there was no invocation of defend-

ant’s Fifth Amendment rights at the arraignment and

therefore there could be no violation of defendant’s Fifth

Amendment rights by the further police-initiated interro-

gation. Petitioner contends that that conclusion is ac-

curate.

Despite the Micliigan Supreme Court’s sound reason-

ing on the Fifth Amendment question, it nonetheless boldly

stepped out into new ground and reversed defendant’s

conviction claiming that admission of the confession ob-

tained after request for counsel at arraignment was a

violation of defendant’s Sixth Amendment rights. Again,

the proper analysis of the Sixth Amendment interests in-

volved in this case requires a brief historical development

of the Sixth Amendment right to counsel and then the

application to the instant case.

The Sixth Amendment

The Sixth Amendinent cases dealing with the scope

of the right to counsel during interrogation have not been

so clearly synthesized into comprehensive rules like has

been done for the Fifth Amendment right to remain silent.

Since this is primarily virgin territory, careful analysis

of the Sixth Amendment right to counsel and its impli-

cations in the instant case is necessary.

This court in United States v Ash, 413 US 302 (1973),

cast the mold for the appropriate analysis of Sixth

Amendment questions. The history of the Sixth Amend-

ment must be examined so that the immutable protec-

tions which carry the lasting importance of the Sixth

22

Amendment right to counsel can be properly applied to

the ever changing criminal justice system. The accepted

history of the Sixth Amendment as recorded in this court’s

eases begins most notably in Powell v Alabama, 287 US

45 (1932).

The most significant aspect of Sixth Amendment his-

tory developed in Powell was that the simple words ‘‘to

have the assistance of counsel for his defense” in the

Sixth Amendment was a repudiation of the common law

rule that denied criminal defendants the right to the

assistance of counsel in felony cases. Powell, supra, 287

US at 60. In United States v Ash, 413 US 305 (1973),

this court reexamined the historical foundations of the

Sixth Amendment. In Ash, this court concluded that the

right to counsel was designed to ‘‘minimize the imbalance

in the adversary system that otherwise resulted with the

creation of a professional prosecuting official.” Ash,

supra, 413 US at 309. Simply put, the Sixth Amendment

recognizes that the average defendant does not have the

experience and education which would put him on an equal

footing with a skilled prosecutor.

The historical analysis engaged in in Ash led this

court to conclude that the ‘‘core purpose” of the right to

the assistance of counsel is to “assure ‘Assistance’ at trial

when the accused is confronted with both the intricacies

of the law and advocacy of the public prosecutor.’’ Ash,

413 US at 309.

While the right to counsel under the Sixth Amend-

ment, as the right to be free from compelled self-incrim-

ination under the Fifth Amendment, is rooted in the court-

room setting, the protections afforded by the Sixth Amend-

23

ment have not been limited to the narrow scope of repre-

sentation during the formal trial. As criminal procedure

has changed, the breadth of the right to the assistance of

counsel has also changed so that the immutable interests

protected by that right are not diluted. See example

United States v Wade, 388 US 218 (1967). Expansion

of the application of the protections embodied within the

Sixth Amendment is not controlled merely by the pre-

dilections of the court but rather the right to counsel has

only been expanded ‘‘when new contexts appear present-

ing the same dangers that gave birth initially to the right

itself.’’ United States v Ash, 413 US at 311. Thus, the

initial question to be addressed is whether the event, police

interrogation, and the procedural timing of that event,

between initial arraignment request for counsel and first

contact with appointed counsel, present the same dangers

that led to the adoption of the Sixth Amendment.

The first question is whether the right to counsel

under the Sixth Amendment had attached at the time

Respondent was interrogated. This court has expanded

the Sixth Amendment right beyond the courtroom to cer-

tain “critical’’ pretrial stages of the proceedings. United

States v Gouveia, — US —; 104 SCt 2292, 2298 (1984).

The question then is whether the instant case had reached

a critical stage at the time Respondent was interrogated.

This court has established by a plurality in Kirby v

Illinois, 406 US 682 (1972) and by a majority in Umted

States v Gouveia, — US —; 104 SCt 2292, 2296 (1984) :

That the Sixth Amendment right to counsel attaches

only when formal judicial proceedings are initiated

against an individual by way of indictment, informa-

24

tion, arraignment, or preliminary hearing. (mphasis

added).*

Petitioner is aware that in Brewer v Williams, 430 US

387 (1977), this court found a violation of defendant’s

Sixth Amendment right to counsel where the proceedings

has only advanced to the stage of arraignment on the

original arrest warrant. Nonetheless, Petitioner submits

to this court that the Sixth Amendment right to counsel

had not yet attached in the instant case even though de-

fendant had been arraigned on the original arrest war-

rant. Apparently it was assumed that the Sixth Amend-

ment applied to the circumstances of Brewer v Williams

and perhaps this question was not there litigated. Fur-

ther, since the question is one of procedure, it must be

analyzed under the peculiarities of the procedure of each

state. See Anonymous v Baker, 360 US 287, 290-291

(1959).

The Sixth Amendment Had Not Attached

In Michigan, any person charged with a felony, after

arrest, must be brought before a Magistrate or District

Court Judge without unnecessary delay for his initial ar-

raignment. MCL 4764.26; MSA § 28.85. When unreason-

able delay has been employed as a tool to extract a state-

ment from the defendant, Michigan law precludes admis-

sion of that statement. People v Bladel & Jackson, 421

‘It is true that this court in Escobedo v Illinois, 378 US 478

(1964) applied Sixth Amendment analysis to custodial interro-

ation which occurred prior to any formal charges being

rought. Petitioner submits, however, that the Escobedo case

and its protections have been fully subsumed by Miranda and

that, in fact, Escobedo’s extension of the Sixth Amendment

right to instances occurring prior to the filing of formal charges

has been overruled by Kirby and Gouveia.

25

Mich 79; 365 NW2d 56 (1985). The speedy arraignment

required by statute is administered by a District Judge

who has no jurisdiction to accept a plea of guilty to a fel-

ony charge, but who must read the contents of the charges

against the ¢efendant, inform him of his right to prelim-

inary examination, his right to an attorney either retained

or appointed and his right to bond. If a defendant so de-

sires, he may have a preliminary examination. The pre-

liminary examination must be held within 12 days after

arraignment. MCLA § 766.4; MSA 28.922. The 12 day

requirement is jurisdictional. MCLA § 766.7; MSA 28.925.

People v Weston, 413 Mich 372, 319 NW2d 537 (1982).

The District Judge who arraigned Respondent was

without jurisdiction to enter a conviction against defendant

by plea or otherwise. Under this particular state pro-

cedure, Petitioner submits that no critical stage of the

proceedings had been reached until the preliminary exam-

ination. The use of the terminology “indictment, informa-

tion, arraignment or preliminary hearing’’ in Gouveia is

somewhat difficult to apply without knowing how this

court was using those terms. Petitioner submits that the

preliminary hearing terminology used by the court denotes

the earliest point at which the Sixth Amendment right at-

taches under procedures like those employed in Michigan.

While the defendant had been arraigned in the instant

case, there is also a second arraignment in Michigan pro-

cedure which occurs in the Circuit Court following bind-

over after preliminary examination, at which time defend-

ant has his first opportunity to enter a plea in a court with

jurisdiction to render a final decision in a felony case.

Thus, Petitioner submits that under the Sixth Amendment

precedent of this court, the Sixth Amendment right to

26

counsel had not yet attached at the time defendant was

interrogated and therefore it could not have been violated

and the Michigan Supreme Court must be reversed.

There is no reason why this court should extend the

protection of the Sixth Amendment any farther than Pe-

titioner believes it already has. The defendant’s rights

are fully protected in the context of custodial interrogation

between initial arraignment and preliminary examination

by the Fifth Amendment right to counsel established in

Miranda. Further, the Sixth Amendment concern dealt

with in Powell v Alabama, supra, that of adequate time

for trial preparation, is fully protected by the presence

of counsel at the preliminary examination, the greatest

discovery tool for the defense, and the provision of coun-

sel from the time of the preliminary examination until

trial which is more than adequate time for preparation.

Simply put, there is no significant interest of the defend-

ant that needs the additional protection of the Sixth

Amendment with its consequent burden on the State.

Any Sixth Amendment Right To Counsel Was Waived

While it is clear that Petitioner would be successful

if this court finds that the Sixth Amendment had not at-

tached at the time Respondent gave the challenged con-

fession, prudence compels Petitioner to continue the an-

alysis of this case assuming arguendo that the Sixth

Amendment right to counsel had attached.

If the Sixth Amendment right to counsel had attached

at the time Respondent was interrogated, Massiah v Unit-

ed States, 377 US 201 (1964) makes it certain that the

Sixth Amendment applies to the event. Massiah stands for

a

27

the proposition that once a critical stage of the proceed-

ings has been reached, elicitation of incriminating state-

ments from a defendant by police in the absence of coun-

sel or waiver of the presence of counsel is a violation of the

Sixth Amendment. Other of this court’s cases which have

dealt with Sixth Amendment analysis of the propriety of

police-elicitation of incriminating statements from a crim-

inal defendant are Brewer v Williams, 430 US 387 (1979),

United States v Henry, 447 US 268 (1980) and Escobedo

v Illinois, 378 US 478 (1964). Comparison of the facts in

the instant case with the four major Sixth Amendment-in-

criminating statement cases of this court shows that none

of the problems that arose in those four cases were present

in the instant case and thus there was no violation of de-

fendant’s Sixth Amendment rights.

In Massiah, supra, defendant had retained a lawyer,

entered a plea of not guilty and been released on bail.

While or bail, goverument agents were able to convince

Massiah’s co-defendant to put a radio transmitter in his

automobile so that when the co-defendant and Massiah

rode together the government agents could intercept the

conversations between Massiah and his co-defendant.

While acting much as an agent for the government, Mas-

siah’s co-defendant engaged in lengthy conversations with

Massiah within the co-defendant’s automobile. The con-

versations included several incriminating statements which

were used against Massiah at trial. This court found a

Sixth Amendment violation. In Massiah, there was clear-

ly an interference with a then existing attorney-client re-

lationship without any waiver of the defendant’s Sixth

Amendment rights due to the surreptitious means by which

the incriminating statements were obtained.

28

In Escobedo, supra, the defendant had retained coun-

sel to represent him in connection with charges arising out

of the murder of Escobedo’s brother-in-law. The incrim-

inating statements admitted into evidence against Esco-

bedo were obtained only after hours of repeated question-

ing which continued despite defendant’s insistence that

he would like to have the advice of his counsel before mak-

ing any statement. Escobedo, supra, 378 US at 479. Ad-

ditionally, Escobedo’s attorney attempted to make contact

with Escobedo but was denied the opportunity to do so.

Escobedo, supra, 378 US at 480-481. Finally, when Esco-

bedo asked to talk with his attorney after having seen

him at the police station, Escobedo was told that his at-

torney did not want to speak with him even though the

police knew well that Escobedo’s attorney did want to

speak with him. Eecobedo was neither advised of his right

to remain silent nor any right to the presence of counsel

nor did he waive those rights. Again, in E'scobedo, a Sixth

Amendment violation was found where there was inter-

ference with a then existing attorney-client relationship

and there was no advice or waiver of any right to have

contact with counsel.

In Brewer v Williams, swpra, defendant Williams con-

tacted his attorney apparently with the message that Wil-

liams decided to turn himself in on an outstanding war-

rant for murder. The attorney contacted the police to ar-

range for the surrender of Williams to police in Davenport,

Iowa and his transportation to Des Moines where he would

stand trial. Williams, swpra, 430 US at 390. Contact was

made with an attorney in Davenport who was apparently

present during the arraignment of Williams which oc-

curred in Davenport. Both the attorney at Davenport and

29

the one at Des Moines advised defendant not to speak with

police. Further, both attorneys reached agreement with

the transporting officers that they would not interrogate

Williams during the ride from Davenport to Des Moines.

Brewer v Williams, supra, 430 US at 391-392. Before get-

ting into the car to be transported to Des Moines, defend-

ant was advised of his Miranda rights by Detective Leam-

ing. Rather than waiving those rights, defendant reaf-

firmed his position through counsel that there was to be

no questioning of the defendant during the ride to Des

Moines. Brewer v Williams, id. At the completion of the

infamous “Christian burial speech’’, Defendant Williams

made incriminating statements. While this court found

that Williams appeared to understand his right to coun-

sel, there was no evidence that Williams desired to re-

linquish that right. In fact, this court found that “Wil-

liams’ consistent reliance upon the advice of counsel in

dealing with the authorities refutes any suggestion that

he waived that right.’’ Williams, swpra, 430 US at 404.

Again, the Sixth Amendment violation was found where

there was an interference by police with a then existing

attorney-client relationship where the right to the pres-

ence of counsel had not been waived.

The final note of the quartet of Sixth Amendment cases

was sounded in United States v Henry, 447 US 264 (1980).

In Henry, the defendant was incarcerated awaiting trial

on a bank robbery charge. Before counsel was appointed

for Henry, see 447 US at 226, government agents made

contact with a cell-mate of Henry who had been a confi-

dential informant for the FBI in the past. While the agents’

only asked the cell-mate to listen for incriminating state-

ments made by Henry, the testimony of the cell-mate in-

30

dicated that he elicited much of the information which was

incriminating against Henry during conversations within

the jail, even after appointment of counsel. The use of an

undisclosed undercover informant to elicit incriminating

statements from Henry was found to have violated Henry’s

Sixth Amendment rights since there could not have been

a knowing and voluntary waiver of those rights where

Henry was not even aware of his cell-mate’s connection

to the government. In Hemry as in the previous cases,

there was an interference with an existing attorney-client

relationship where the right to the assistance of counsel

was not waived.

The first distinguishing aspect between the case at

bar and the four cases noted above is that there was no

established attorney-client relationship which was inter-

fered with by the challenged interrogation. While a notice

of appointment had been sent out by the Court Admin-

istrator’s Office, there is no indication that defense coun-

sel had received that notice and the record reflects that

defense counsel and defendant had never met. While it

is true that, if the existence of an on-going attorney-client

relationship is a prerequisite for a Sixth Amendment vio-

lation in the circumstances of the instant case, those with

the financial ability to retain counsel may be in a better

position than those who are indigent and have to depend

on court appointed counsel, there is nonetheless adequate

justification for such a rule.

The penalty exacted by the Michigan Supreme Court

for the alleged violation of Respondent’s Sixth Amend.

ment rights was suppression of his confession. Suppres-

sion is a remedial device the use of which is controlled by

careful cost-benefit analysis. United States v Leon, — US

31

—; 104 SCt 3405, 3412-3413 (1984). Under such analysis

the relative evil of the police conduct is extremely relevant,

if not controlling. The evil present in the knowing inter-

ference with an existing attorney-client relationship such

as occurred in the four cases above, when compared to the

innocent request for the opportunity to interrogate in the

instant case, point toward the conclusion that the scales

only tip in favor of the exclusion where the greater evil

occurs. This issue will be dealt with more fully below

when the practicalities of the Michigan Court’s rule are

discussed. (Note also the concerns articulated in the Mich-

igan Code of Professional Responsibility DR 7-104, Com-

munications with adverse party.)

None of this court’s cases discussed above create a

bar to governmental elicitation of incriminating statements

from a defendant once his Sixth Amendment right to coun-

sel has attached. The second problem in each of the four

cases is that there was no waiver of that Sixth Amendment

right before the incriminating statements were obtained.

Petitioner submits that this is the most import distinguish-

ing factor between the case at bar and the previous Sixth

Amendment cases addressed by this Court. Petitioner

submits that the Sixth Amendment right to counsel is

waivable and that in the instant case, Respondent know-

ingly and intelligently relinquished his right to have coun-

sel present during interrogation as that right is secured

by the Sixth Amendment. (See e.g. Faretta v California,

422 US 806 (1975)).

While the Sixth Amendment right to the assistance

of counsel is an extremely broad right in that it has appli-

cation to many different circumstances, a proper analysis

of the waiver question must focus only on that portion of

32

the Sixth Amendment right which must be waived in order

to render the government elicited incriminating statement

admissible. The narrow portion of the Sixth Amendment

right to counsel involved in the instant case is the right

to the presence of counsel during “post-indictment com-

munications between the accused and agents of the gov-

ernment’’ whether_or not the defendant is in custody at

the time of the interrogation. United States v Henry, 447

US 264, 270 (1980). Thus, if defendant was adequately ad-

vised, understood and waived the right to the presence of

counsel, the deficiency in the four previous cases has been

overcome and the confession at bar should be admissible.

Miranda Warnings Lay A Proper Foundation

For Sixth Amendment Waiver

The confession challenged at bar was made during

what might be termed (if we accept that the Sixth Amend-

ment had attached) critical-stage/custodial interrogation.

Because of the coexistence of custody and a critical stage,

the rights to the presence of counsel afforded by both

the Fiith Amendment and Sixth Amendment overlapped.

To avoid Fifth Amendment problems, the police properly

advised Respondent of his Miranda rights. Petitioner

submits that since the Fifth and Sixth Amendment rights

to counsel, as they apply to the narrow circumstance of

critical-stage/custodial interrogation, are identical in scope

and purpose, a knowing, intelligent, and voluntary waiver

of the right to the presence of counsel pursuant to Miran-

da warnings constitutes a waiver of those rights contained

in both the Fifth and Sixth Amendments. This does not

deny the analytical distinctions between the Fifth and

Sixth Amendment rights to counsel, see Rhode Island v

33

Innis, 446 US 291, 300, Note 4, (1980), but it is to say

that in the peculiar circumstances of this case, the over-

lap of the protections under the two amendments creates

an identity between the cognitive content necessary for a

knowing, intelligent and voluntary waiver of either the

Fifth or Sixth Amendment right to counsel. (This analy-

sis has been accepted in United States v Karr, 742 F2d

493 (9th Cireuit, 1984) ).

It has been suggested by some that there ought to be

a higher standard of waiver for the Sixth Amendment

right to counsel than the Fifth Amendment right to coun-

sel. See People v Bladel, 421 Mich 79, Note 15 (1985).

This Court, however, has stated that the standard to be

met is that embodied in Johnson v Zerbst, 304 US at 464,

the same standard that must be met for waiver of Fifth

Amendment rights. Brewer v Williams, supra, 430 US at

404. Petitioner submits that that is the appropriate

standard for it is difficult to comprehend how there can

be a higher standard. Either a waiver is knowingly and

intelligently made or is not. The only greater require-

ment that could be made is not one of a higher standard

of waiver but of more evidence to support the fact of

waiver. At least in the instant case, there is no reason

at all to doubt the word of the detectives who testified,

especially in light of the written waiver of defendant.

North Carolina v Butler, supra. There is no higher ground

on which to stand than that on which the waiver in the

instant case is firmly planted.

The Sixth Amendment Requires No Edwards Protection

Even assuming that there was a valid waiver of de-

fendant’s Sixth Amendment right to counsel, the Michi-

34

gan Supreme Court was not satisfied with the constitu-

tional protections afforded the defendant and instead de-

cided that it was appropriate to suppress the reliable and

valuable confession because, in the mind of the majority

of the Michigan Supreme Court, the Sixth Amendment

precludes police-initiated interrogation after defendant

has invoked his Sixth Amendment right to counsel. The

Michigan Supreme Court based its conclusion on an anal-

ogy to Edwards v Arizona. Petitioner submits that the

circumstances of the instant case and Edwards are so dis-

parate that analogous application of the Edwards rule

to the instant case is most inappropriate.

The concerns involved in Edwards v Arizona have

been discussed above. Essentially, Edwards is a prophy-

lactic rule designed to prevent police from repeatedly re-

questing a defendant to relinquish his constitutional rights

when the defendant has previously indicated his desire

not to do so. In other words, the defendant should neither

be beaten into submission or questioned into submission.

Edwards can only be properly applied by analogy it

a police request that defendant submit to interrogation

after defendant has invoked that portion of his Sixth

Amendment right of which he was advised at arraignment

would present the same danger of police badgering of the

defendant into unwilling relinquishment of his constitu-

tional rights. Petitioner submits that such a danger does

not exist.

As more fully stated above, at his District Court

arraignment, Respondent was advised of his right to

have an attorney represent him at the preliminary exam-

ination and all subsequent proceedings. It was that nar-

35

row right which was clearly invoked by Respondent at

his arraignment. There was nothing either in the con-

tent of the advice given by the District Court judge or

in defendant’s request for appointed counsel which in

any way indicated that defendant did not wish to engage

in further interrogation. There was nothing that indi-

cated that defendant wished to deal with police only

through counsel. Moreover, it would be serious error to

conclude that every defendant who desires to have coun-

sel represent him during judicial proceedings also wishes

to speak with police only through counsel.

The facts of the Fifth Cirenit case of Nash v Estelle,

097 F2d 513 (5th Circuit, 1979) are very helpful in seeing

a circumstance in which a defendant clearly articulates

both a desire to have counsel represent him during the

judicial process and a desire to speak with the authori-

ties without the presence of counsel. The following is

an excerpt 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.

36

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.

Wiles: 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 defend-

ant to unburden h‘mself by confessing to his custodians,

Nash, at 517, while still maintaining his right to be repre-

sented during judicial proceedings. This court’s decision

in Smith v Illinois, 449 US —, 105 SCt 490; 83 LEd2d

488 (1984) calls into question the admissibility of this

statement because of the rather clear request for counsel

initially made. Nonetheless, this case remains illustra-

tive 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

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

defendant Blasingame was arrested late at night and ar-

raigned the following morning. At that arraignment, he

37

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

requesting a court appointed attorney. That night, a Dal-

las police officer interviewed Blasingame after having ad-

vised Blasingame of his Miranda rights which Blasingame

knowingly, intelligently and voluntarily waived. On ap-

peal, Blasingame asserted that a Fifth Cireuit predeces-

sor of Edwards v Arizona precluded questioning after his

unequivocal request for counsel at arraignment. The Blas-

ingame court saw the issue this way:

In evaluating this argument, the crucial inquiry is

whether defendant asserted his rivht to counsel in such

a manner that later police inquirv ‘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 such that precluded

later police-initiated interrogation and thus the rights

asserted at arraignment were not impinged by the later

inquiry. The Blasinaame court said “Nash recognizes that

some defendants may well wish to have an attorney to rep-

resent them in legal proceedings, vet wish to assist the

investigation by talking to an investigating officer with-

out 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 Amendment right

to confer or have counsel present during custodial inter-

rogation, 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

38

is not made in such a way as to effectively exercise

the right to preclude any subsequent interrogation.

\(Blasingame, supra, at 896).

In Nash and Blasingame, like Jordan v Watkins, 681

F2d 1067 (CA 5, 1982) and Johnson v Commonwealth, 55

SE2d 525 (VA 1979), the courts found that there was so

little connection between the request for counsel at arraign-

ment in exercise of the defendant’s Sixth Amendment

right to counsel and the subsequent interrogation, that the

subsequent interrogation did not impinge on the right pre-

viously exercised.’ The simple fact is that where a defend-

ant has previously given notice of his intent to exercise

one constitutional right a later police request to waive a

different constitutional right can in no way impinge upon

the original intent to exercise the first constitutional right.

Under these circumstances, there is no danger that the

defendant would be badgered to the point where he would

unwillingly relinquish a right he sought to preserve.

The Virginia Supreme Court in Johnson v Common-

wealth, supra, found guidance for dealing with the ques-

tion in the instant case in this court’s case of Michigan v

Mosley, 423 US 96 (1975). Mosley provides much more

guidance in resolving the issue in the instant case than

does Edwards v Arizona. The added guidance arises out

of the fact that while in Edwards the defendant was asked

to relinquish the very right he had previously asserted,

the defendant in Mosley was asked to relinquish his right

to remain silent in a separate prosecution after previous-

ly invoking that right in regard to a different prosecution.

SThere are a number of cases which, though not without

their problems in regard to the clarity of the rule therein ap-

(Continued on following page)

39

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

rested on a number of robbery charges. Detective Cowie

interviewed the defendant about the robberies. During the

interrogation, defendant Mosley exercised his right to re-

main silent, rather than his right to the presence of coun-

sel. Two hours later, Detective Hill initiated interrogation

of Mosiey in reference to an unrelated homicide. The sec-

ond interrogation began with advice and waiver of Mi-

randa 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.

The focus of this court’s decision in Mosley was wheth-

er 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 interro-

gation could be resumed after an exercise of the right to

remain silent. This court refused to hold that an exercise

of the right to remain silent precludes all further interro-

gation. Neither would this court allow reinterrogation

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 dur-

ing which the questioning has been suspended.

(Continued from previous page)

plied, arguably involve circumstances where the request at

arraignment has a close nexus to an invocation of right to where

the request for counsel follows the arraigning Magistrate’s reci-

tation of Miranda warnings. (e.g. Silva v Estelle, 672 F2d 457

(CA 5, 1982)).

40

Auother 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 Mosley was desirous of talking

about any other crimes. The court noted that in these cir-

cumstances, questioning on an unrelated crime was “quite

consistent with a reasonable interpretation of Mosley’s

earlier refusal to answer any questions about the robber-

ies’’ Mosley, 423 US at 105; 96 SCt at 327. The advice 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 outweighted by the beneficial value

of resolving any ambiguity in the defendant’s previous in-

vocation of his right to remain silent. The facts and rea-

soning of Mosley are far more in accord with the instant

ease than is Edwards v Arizona.

In the instant case, Respondent’s request for counsel

at arraignment does not necessarily indicate that defend-

ant desires to only deal with police through counsel, the

clear indication by the defendant in Edwards. Thus, sub-

sequent questioning by the police was “quite consistent’’

with Respondent’s previous request for counsel. Since

the individuals who interrogated Respondent did not have

previous contact with Respondent, their actions of rein-

itiating interrogation were not inconsistent with any pre-

vious statements that they had made; thus, defendant could

not reasonably believe that his rights would not be hon-

ored.

As Petitioner stated at the beginning of this brief,

the question presented in this case involves the balanc-

41

ing and intersection of the rights possessed by corporate

society over against those of the individual defendant.

It would be wrong to fall into the trap of the fallacy of

exclusion of the middle. Petitioner does not argue in this

brief that failure of the defendant at arraignment to state

the’ e does not want to speak with the police constitutes

a waiver of whatever Sixth Amendment right the defend-

ant may have to the presence of counsel during interro-

gation. Petitioner’s argument is not one that argues for

displacement of the individual’s interests by the inter-

ests of corporate society. Rather, Petitioner argues for

a both/and rule. Petitioner argues that both society and

the individual can be best protected by a rule which allows

police-initiated interrogation prior to any indication by

the defendant of a desire to deal with police only through

counsel but that that interrogation can only take place

once the defendant relinquishes his rights under the John-

son v Zerbst test.

The rule argued for by Petitioner places very little

burden on Respondent. All Respondent needed to do to

protect himself fully was to say ‘‘yes” when the detectives

asked him if he wanted to have counsel present before

any further interrogation occurred. This is no greater

than the burden placed on the defendant in Michigan v

Mosley to assert his desire to remain silent during the

subsequent interrogation. There is no question but that

Respondent’s Sixth Amendment rights were serupulously

honored. Respondent’s waiver of his right to the presence

of counsel during interrogation was knowingly, intelli-

gently and voluntarily made. There is absolutely no ra-

tional reason to suppress the challenged confession in the

instant case.

42

Since none of the dangers presented by Miranda, Ed-

wards or the quartet of Sixth Amendment cases are

present in the instant case, Respondent’s confession was

obtained under circumstances where there is no risk of

unreliability and no offense against Respondent’s consti-

tutional rights. Our adversary system of justice depends

on the parties to develop the evidence diligently and for

the courts to impose proper rules guaranteeing the re-

liability of that evidence so that the citizens whose daily

lives are interrupted for jury service and who are charged

with finding the truth can have available to them all pos-

sible means by which they can fulfill their duty of finding

truth. A trial deprived of evidence as significant and

reliable as the confession in the instant case would be a

inockery and the jury would be defrauded. Admission of

this confession would not create a risk that an innocent

man would be convicted, see Brewer v Williams, 430 US

at 437, but suppression of this evidence may well let a

guilty murderer go free.

The Michigan Rule Results In Confusion Not Clarification

Finally, whether or not Respondent’s rights were

technically violated, suppression is not the proper rem-

edy. The rule adopted by the Michigan Supreme Court

is an “[i]ndiscriminate application of the exclusionary

rule,’ that has already ‘‘generat[ed] disrespect for the

law and the administration of justice.” United States v

Leon, — US —; 104 SCt 3405, 3413. The purpose of the

exclusionary rule is to deter police conduct which violates

the constitutional rights of a criminal defendant. The

rule should not be applied where deterence cannot be

thereby achieved. Leon, supra, — US —; 104 SCt at 3413-

3414.

43

The ‘‘good faith” exception to the exclusionary rule

now applied to Fourth Amendment cases is the natural

extension of this court’s pursuit of ‘‘bright line” rules for

the establishment of when constitutional rights attach and

police conduct is controlled. Edwards itself is a ** bright

line” rule case in that a specific event, a request for coun-

sel made 70 POLICE during custodial interrogation, con-

trols police conduct. The rule argued for by Petitioner

results in the same ‘‘bright line” as that in Edwards.

The rule proposed by the Michigan Supreme Court

is not a “bright line”, it is a ‘‘black hole”. Common to

both the ‘‘good faith” rule of Leon and the ‘‘bright line’’

rules of Edwards and Berkemer v McCarty, supra, is that

the event which controls police conduct occurs in the

presence of the police (be it the facial validity of a search

warrant, the request for counsel made to police, or the

placing of one in custody by an objective act) and thus

the police have all the necessary information for the de-

termination of appropriate self-conduct. The Michigan

Supreme Court’s rule, contrary to this, punishes police

conduct on the basis of events which occur outside their

presence, (i.e. a request for counsel made to a judicial

officer). In this county at least, neither police nor prose-

cutor are typically present at the initial arraignment.

Prisoners are brought to the courtroom by court officers

who receive prisoners from the tunnel lock-up which con-

nects the Jail and the Courthouse buildings. Simply put,

the police are not major actors in the events which occur

in the courtroom and often are not present. Police would

be left to guesswork in determining whether it is proper

to interview a particular prisoner under the Michigan

Supreme Court’s rule. Such a rule would result in sup-

44

pression of evidence in the most innocent of circumstances

where, in the words of Justice Cardozo, ‘‘the constable .. .

blundered”. People v DeFore, 242 NY 13, 21; 150 NE

585, 587 (1926). United States v Henry, 447 US at 275.

Adoption of the Michigan court’s rule by this court would

result in the spread of the disrespect for the law and the

administration of justice already engendered by this rule.

CONCLUSION AND RELIEF

Contessions, voluntarily made, are relevant and pro-

bative evidence. This court said in Oregon v Elstad,

supra, ‘‘voluntary statements ‘remain a proper element

of law enforcement.’ Miranda v Arizona, 384 US at 478.

‘Indeed, far from being prohibited by the constitution,

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

herently desirable .. .” Oregon v Elstad, — US —;

105 SCt 1285, 1291.

Respondent was acting as a free moral agent both

when he murdered the three innocent trainmen at the

Jackson Depot and when he confessed. True freedom, in

our society, combines the freedom to act and the respon-

sibility for those actions. Respondent is responsible for

the murders and should suffer the consequences of his

actions. The balance of fundamental interests embodied

in the lasting principles of our constitution requires ad-

missibility of Respondent’s confession made after a know-

ing, intelligent and voluntary waiver of his constitutional

rights. This guilty defendant ought not go free.

45

WHEREFORE, Petitioner respectfully requests that

this Honorable Court reverse the judgment of the Michi-

gan Supreme Court and affirm Respondent’s conviction.

Respectfully submitted,

/s/ Brian E. Tutepe (P32796)

Chief Appellate Attorney

Jackson County Prosecutor’s Office

312 S. Jackson Street—Room 3C0

Jackson, Michigan 49201

(517) 788-4274

Attorney for Petitioner

Dated: July 10, 1985