People v. Wright , 441 Mich. 140 ( 1992 )

Mallett, J.

We are asked today to consider whether a criminal defendant can voluntarily waive his Fifth Amendment rights without the knowledge that his attorney is trying to contact him. Further, we are asked to determine whether not providing a defendant with food, water, or the opportunity or place to sleep while he awaits questioning renders his statements involuntary.

i

Defendant Rodney Agustus Wright shot and killed Clifford "Terry” Harrell during the early morning hours of March 7,. 1987. Around midnight, Mr. Harrell’s car became stuck in the mud across the street from defendant’s house. He asked defendant and other residents for help. A fight ensued between Mr. Harrell and some of the bystanders. Mr. Wright went to his house, retrieved his shotgun, and unloaded it on the front porch. After unsuccessfully attempting to break up the fight, he went back to his porch, loaded the gun, and again tried to stop the fight. However, in the midst of the affray, the gun discharged, fatally wounding Terry Harrell.¹

At about 5:00 a.m., Rodney Wright was arrested for shooting Terry Harrell. He was taken to the Fourteenth Precinct, and, after approximately four and one-half hours, he was transferred to the homicide section of police headquarters. At police headquarters, he was put into a room adjoining the office of Sergeant George Taylor, where he remained for approximately one and one-half hours.

Rodney Wright was first questioned by Sergeant Taylor between 10:30 and 10:50 a.m. Mr. Wright asked for, but was denied, permission to phone his grandfather. Sergeant Taylor then took defendant into his office where he advised him of his rights and defendant agreed to make a statement. Sergeant Taylor, however, did not take the statement. Instead, he told defendant that he wanted to search his home, which Mr. Wright gave him permission to do. Again, defendant asked to use the phone. Sergeant Taylor told him that he did not have time for telephone calls. He then led defendant into a smaller room, about four feet by five feet, and left defendant there for roughly four hours.

While in the second room, defendant was never offered anything to eat or the opportunity to go to sleep. By the time Sergeant Taylor returned, Rodney Wright had been in custody for over nine hours. He was taken out of the room once at about 2:00 p.m. to get some water, but still was not allowed to make the requested telephone call.

At about 3:00 p.m., Mr. Wright was brought back into Sergeant Taylor’s office. It was at this time that defendant learned that Terry Harrell had died. According to the defendant, at this time police officers tried to convince him to confess to the murder. The police encouraged defendant to admit that he killed in retaliation to Mr. Harrell’s beating him. He was to confess in order to prevent them from charging him with "murder one.”

Instead of confessing, Mr. Wright denied all guilt. He was then returned to the four by five room. Sergeant Taylor told defendant that he was lying and that he was being put in this room so that the next time the officers came to get him, Mr. Wright would be ready to talk.

The second time Sergeant Taylor confronted defendant, they went into Sergeant Taylor’s office. Rodney Wright said that he was ready to make a statement, but as the defendant was talking, the phone rang. Sergeant Taylor talked to the person on the phone, hung up, and told Mr. Wright that he had just spoken with Mr. Wright’s uncle. When asked why he did not let defendant speak, Sergeant Taylor said that as soon as defendant made his statement, he could call his uncle.

Without being re-read his rights, defendant gave a statement to Sergeant Taylor. When the statement was typed and signed, Sergeant Taylor allowed defendant to make a phone call and then told him that his attorney was waiting for him outside.

When Rodney Wright was asked if he wanted an attorney that morning, he had told the officers that he did not have one. The officers told him that one would be provided for him, but did not indicate when. They also never informed him that his family had hired an attorney or that the attorney, Thaddeus Dean, had been trying to contact him since the morning.

In fact, Mr. Dean came to police headquarters while Sergeant Taylor searched defendant’s home. He spoke to Sergeant Ralph Wolfolk, who did not allow him to see defendant. Sergeant Wolfolk called Sergeant Taylor who informed him that defendant knew his rights and did not want an attorney. Mr. Dean left for a short time and returned while Sergeant Taylor was talking to defendant. He again asked to see defendant. Again, Sergeant Wolfolk called Sergeant Taylor, and, again, Sergeant Taylor said defendant did not want an attorney.

After Mr. Wright made and signed the statement, the officers told him that his family hired an attorney for him and that Mr. Dean was present. The police officers also allowed defendant to make a phone call at this point.

Defendant was charged with first-degree murder and possession of a firearm during the commission of a felony. Before defendant’s trial, the defense filed a motion to suppress the statement made to Sergeant Taylor. At defendant’s Walker² hearing, Judge Sharon Tevis Finch found that defendant wanted to make a statement and never explicitly asked for a lawyer. She also concluded, relying on Moran v Burbine, 475 US 412; 106 S Ct 1135; 89 L Ed 2d 410 (1986), that the police purposely kept defendant from his attorney. She concluded that although the police conduct was reprehensible, the law did not require the suppression of defendant’s statements.

During a bench trial, defendant testified that he got the gun in order to stop the fight, that Terry Harrell came at him, grabbed at the gun, and that it accidentally discharged. Judge Kaye Tertzag found defendant guilty of second-degree murder and felony-firearm. Defendant was sentenced to seven to twenty years for murder and a consecutive two-year term for felony-firearm.

Defendant appealed in the Court of Appeals. 186 Mich App 566; 465 NW2d 339 (1990). The panel felt that Moran v Burbine, supra, was nearly identical on its facts. Although the-United States Supreme Court concluded that states are free to impose more stringent standards on police conduct, the panel declined to do so.

Defendant then appealed here. We granted leave to consider whether a defendant has a right to know of his attorney’s efforts to contact him. We also granted leave to determine whether the failure by police to provide a defendant with proper food, water, or opportunity to sleep, renders a defendant’s statements involuntary.

ii

A defendant’s right against self-incrimination is guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution and by the Michigan Constitution of 1963, art 1, § 17. This includes the rights to remain silent and to be represented by an attorney. In Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966), the United States Supreme Court held that "[t]he defendant may waive effectuation” of these rights "provided the waiver is made voluntarily, knowingly and intelligently.” The inquiry is twofold. First, a suspect’s waiver must be the product of "a free and deliberate choice rather than intimidation, coercion, or deception.” Moran, supra at 421. Second, the waiver must be made with full knowledge of the right being relinquished and the consequences of this choice. "Only if the 'totality of the circumstances surrounding the interrogation’ reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Id. at 421. Accentuating the importance of these rights, the Court stated "[a]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.” Miranda at 476.

A defendant’s decision to speak is clearly his own and must be made with full knowledge of its consequences. We have held that the Fifth and Fourteenth Amendments require a clear demonstration of waiver. People v Paintman, 412 Mich 518, 528; 315 NW2d 418 (1982). Further, we have held that under Const 1963, art 1, § 17, involuntary confessions are inadmissible at trial. People v Louzon, 338 Mich 146, 153-154; 61 NW2d 52 (1953). We must determine, thus, whether defendant’s statements were voluntary under the totality of the circumstances. People v Robinson, 386 Mich 551, 558; 194 NW2d 709 (1972).

hi

Although the United States Supreme Court has held that a defendant’s knowledge of his attorney’s presence is irrelevant to the voluntariness of a waiver, we disagree. Moran v Burbine, supra. In Moran, the defendant confessed to the murder of a young woman after being informed of his Miranda rights. While the defendant was in police custody, his sister retained an attorney to represent him. At no point during the interrogation did the defendant request an attorney. The attorney telephoned the police station and was assured that all questioning would cease until the next morning. However, the interrogation period that resulted in the defendant’s confession occurred later that evening. The Supreme Court held that defendant’s waiver of his Miranda rights was valid, despite the false assurances by the police to the attorney and the fact that the police did not inform the defendant that his attorney tried to contact him.

The standard enunciated in Moran is simply the minimum; states are free to afford their citizens greater protection than that granted by the federal government. As the Court stated in Moran:

Nothing we say today disables the States from adopting different requirements for the conduct of its employees and officials as a matter of state law. [475 US 428.]

The Court further conceded that on "facts more egregious than those presented here police deception might rise to a level of a due process violation.” Id. at 432. In so stating, the Court acknowledged the reprehensibility of such police deception, but denied to do so on constitutional grounds.

iv

Other states have considered this question and have concluded that it is necessary for a suspect to be informed of an attorney’s attempted contacts.³ For example, in State v Stoddard, 206 Conn 157; 537 A2d 446 (1988), the defendant was arrested outside his home for murder two days after police discovered the victim’s body. Before leaving with the police, the defendant briefly spoke with his girlfriend.

While the defendant was being taken to the station and booked, his girlfriend contacted an attorney. The attorney proceeded to make the first of four phone calls to the Bridgeport police station. He was never allowed to speak with the defendant. Each time, however, he was told that the defendant was not at the station; therefore, he did not go there in person.

After the third call, the attorney ceased trying to contact his client until the next morning, when he was told, for a fourth time, that the defendant was not there. The defendant confessed to murder mid-morning, still without knowledge that his attorney was trying to contact him.

The Supreme Court of Connecticut held, contrary to the United States Supreme Court, that under state law, a suspect

must be informed promptly of timely efforts by counsel to render pertinent legal assistance. Armed with that information, the suspect must be permitted to choose whether he wishes to speak with counsel, in which event interrogation must cease, or whether he will forego assistance of counsel, in which event counsel need not be afforded access to the suspect. [206 Conn 166-167.]

The court reasoned that the police do not have the right to prevent a suspect from exercising the choice to which he is constitutionally entitled by being dishonest with counsel or by keeping a suspect uninformed of counsel’s efforts. Id.

Similarly, in Bryan v Delaware, 571 A2d 170, 175 (Del, 1990), a defendant who was charged with first-degree murder moved to suppress statements made to the police while he was unaware that his attorney was trying to contact him. His attorney repeatedly asked police not to question the defendant in his absence. The court asked whether a knowing waiver of the right to counsel can occur, as guaranteed under the Delaware Constitution, when the state prevents counsel from rendering legal assistance to his client during custodial interrogation.

The court concluded that the denial of the assistance of counsel violates due process of law. 571 A2d 175. The Delaware Constitution guarantees:

[A]n accused be afforded the unqualified opportunity to consult with counsel prior to custodial interrogation, provided that (i) the lawyer has clearly made a reasonable, diligent and timely attempt to render legal advice or otherwise perform legal services on behalf of his client, the accused, and (ii) the lawyer has been specifically retained or designated to represent the accused. [Id. at 175.]

The court did not distinguish between attempts in person and attempts over the phone to contact a client. Id.

In State v Haynes, 288 Or 59; 602 P2d 272 (1979), the court found that a suspect who has previously been told of his right to counsel, and who waives this right, must be informed when counsel actually tries to contact him. The suspect must voluntarily and intelligently reject an opportunity to see counsel before further statements can be taken and used against him. Id. at 61-62.

In Haynes, the defendant was arrested on suspicion of murder. While he was in custody, his wife retained an attorney. When the attorney tried to arrange a visit with the defendant, he was told that Mr. Haynes was not at the jail. The attorney called back and received the same response. He then called another local jail and was told that Mr. Haynes was at the one he had previously called. He went to the jail, after calling and telling a police sergeant that he was coming. About the time he arrived, another sergeant was escorting the defendant into a car. During the drive, the defendant incriminated himself.

The court found that when, unknown to the suspect, an identified, retained attorney is available and trying to consult with him and the police do not inform him of that fact, any statement or fruits of the statement obtained when the police know -of the attorney’s efforts are inadmissible because the person did not knowingly and intelligently waive his right to counsel. Id. at 69-70. "Thus it is not a generalized right to counsel that the decisions we have quoted enforce but, more concretely, the derivative right to the benefit of counsel’s efforts to forestall involuntary and incriminating disclosures.” Id. at 71. The court determined that a defendant may still waive his right to counsel once he knows of his attorney’s efforts. However, the court emphasized that it is crucial that the defendant make a knowing, as well as voluntary, choice. Id.

The critical inquiry is whether the information withheld by the police would have changed the defendant’s appraisal and understanding of the circumstances of the waiver. State v Stoddard, 206 Conn 175. Other relevant factors include the relationship between the attorney and the defendant, the nature of counsel’s request, the conduct of the suspect, and the extent to which the police had reasonable notice of counsel’s request. Id.

v

With these factors in mind, we now turn to the case before us. Defendant’s attorney, retained by his grandfather, originally tried contacting him late in the morning of the day he was arrested. He went to the police station asking to see defendant, but was told that the defendant was advised of his rights and did not desire an attorney. Mr. Wright was never informed that his family retained counsel on his behalf or of his attorney’s multiple attempts to see him. Mr. Wright repeatedly requested Sergeant Taylor’s permission to call his family because he wanted and needed his grandfather’s advice. Meanwhile, Sergeant Taylor spoke to defendant’s uncle while defendant was present, still not allowing defendant to talk to him. Sergeant Taylor also knew that an attorney was trying to reach defendant.

Mr. Dean spent a good part of his day at the police station attempting to see Mr. Wright. When asked at the time he was given the Miranda warning, whether he wanted an attorney, Mr. Wright responded that he did not have counsel.⁴ He was then put into a small room and left for hours. Later in the day, he was accused of lying, and told that if he did not want to be charged with first-degree murder, he should formulate a story for the police. Eventually, Mr. Dean was informed, as he was trying to obtain a writ of habeas corpus, that Mr. Wright had made a written statement and that he could now see him.

As Justice Stevens so eloquently stated, ”[t]he recognition that ours is an accusatorial, and not an inquisitorial system nevertheless requires that the government’s actions, even in responding to this brutal crime, respect those liberties and rights that distinguish this society from most others.” Moran at 436 (Stevens, J., dissenting). Accordingly, under our state’s laws, we conclude that Mr. Wright did not make a knowing, voluntary, and intelligent waiver of his rights when the police, before he made a statement, refused to inform him that retained counsel tried or was currently trying to contact him. Without this knowledge, Mr. Wright could not make a truly voluntary waiver of his essential rights. Given the opportunity to speak to a specific, retained and available attorney, Mr. Wright’s decision may have been different. As the Oregon Supreme Court stated:

To pass up an abstract offer to call some unknown lawyer is very different from refusing to talk with an identified attorney actually available to provide at least initial assistance and advice, whatever might be arranged in the long run. A suspect indifferent to the first offer may well react quite differently to the second. If the attorney appears on request of one’s family, that fact may inspire additional confidence. [288 Or 72.]

It is our belief that if defendant knew that a retained attorney was waiting for him, he would not have waived his right to silence or to counsel. While we do not wish to burden law enforcement with more regulations or to complicate the ability of the police to conduct an investigation, we cannot allow a defendant’s Fifth Amendment rights to be ignored in this manner. The police, under these circumstances, could not constitutionally prevent Mr. Wright from having contact with retained counsel who had been trying to reach him, even if the defendant had already waived his Miranda rights.

Under Const 1963, art 1, § 17, a criminal suspect is given the right against self-incrimination, a right similar to that provided in the Fifth Amendment of the United States Constitution. This Court has held that the interpretation of our constitutional privilege against self-incrimination and that of the Fifth Amendment are the same. In re Moser, 138 Mich 302, 305; 101 NW 588 (1904). However, as the United States Supreme Court concluded in Moran, states are free to adopt more protective standards under state law. Because we believe that it was necessary, in order to allow Mr. Wright to make a knowing and fully voluntary waiver of his Fifth Amendment rights, we extend the rights afforded under Const 1963, art 1, § 17, to include information of retained counsel’s in-person efforts to contact a suspect.

To hold otherwise would suggest "that a State has a compelling interest, not simply in custodial interrogation, but in lawyer-free, incommunicado custodial interrogation.” Moran at 437 (Stevens, J., dissenting). The police should have informed Mr. Wright of his retained counsel’s attempts to contact him.

VI

Finally, because we conclude that defendant did not knowingly or voluntarily waive his Miranda rights, there is no need to consider whether the deprivation of food, water, or the opportunity or place to sleep while he awaited questioning rendered his statements involuntary.

CONCLUSION

Because we believe that Mr. Wright should have been informed of counsel’s in-person attempts to contact him in order to knowingly and voluntarily waive his Fifth Amendment rights, we reverse the Court of Appeals decision, and order a new trial at which defendant’s statements to the police are to be suppressed. We find that Mr. Wright’s confession, made without this knowledge, violated the rights afforded under the Michigan Constitution. Statements made under such circumstances are neither voluntarily nor knowingly made, and therefore cannot be used against a defendant. Deliberate subterfuge by the police to prevent counsel from contacting a suspect is reprehensible and unconstitutional. Mr. Wright, under this state’s constitution, was entitled to such knowledge in order to make an informed decision regarding his rights.

Reversed and remanded.

Levin, J., concurred with Mallett, J.

1 There is varying testimony on this point. Some witnesses testified that Rodney Wright threatened the victim with the gun, aimed, and pulled the trigger, but no bullet was discharged, then pulled the trigger again, fatally wounding Mr. Harrell. Other witnesses disagreed with this account of events. All agreed, however, that Terry Harrell was the aggressor in the fight.

2 People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).

3 See, e.g., Haliburton v State, 514 So 2d 1088 (Fla, 1987); People v Houston, 42 Cal 3d 595; 230 Cal Rptr 141; 724 P2d 1166 (1986) (superseded by legislative action, see People v Ledesma, 204 Cal App 3d 682; 251 Cal Rptr 417 [1988]); Roeder v State, 768 SW2d 745 (Tex App, 1988); Wisconsin v Middleton, 135 Wis App 2d 297; 399 NW2d 917 (1986).

4 During Mr. Wright’s Walker hearing, his attorney questioned him about how he was informed of his rights:

Q. When they asked you if you wanted an attorney, what did you tell them?

A. I told them I didn’t have an attorney.

Q. Did they tell you that they would go out and get one for you?

A. They said one would be provided.

Q. Did they tell you when one would be provided?

A. No, they didn’t.

Q. Did they tell you that one was available for you right then?

A. No.