Opinion
367926
06-06-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. DAREN DONELL FENDERSON, Defendant-Appellee.
UNPUBLISHED
Wayne Circuit Court LC No. 23-000412-01-FC
Before: SWARTZLE, P.J., and SERVITTO and GARRETT, JJ.
PER CURIAM
The victim died during a "hit-and-run," and defendant voluntarily confessed to the crime after several interviews with the police. The district court admitted defendant's video confession over his motion to exclude, concluding that defendant had validly waived his right to remain silent and had made a voluntary statement. Viewing the same video, however, the circuit court suppressed the confession, finding instead that police had coerced defendant into make the confession. Our review of the record confirms that the circuit court erred, and we reverse and remand for further proceedings consistent with this opinion.
Defendant was 24-years-old at the time of his arrest, and he had completed three years of high-school education. The police attempted to conduct a custodial interrogation after arresting defendant, but could not proceed because defendant appeared to be intoxicated. The next day, the officers read defendant his constitutional rights concerning the interrogation, and defendant signed a document that explained these rights. During this initial interrogation, defendant told the officers that his truck was carjacked on the night of the victim's death, and that the carjacker was driving defendant's vehicle when the victim was killed. The officers interrupted defendant, however, and told defendant that they had surveillance-video footage that showed defendant driving the vehicle. Defendant attempted to change his story, and he agreed to tell the officers "what they wanted to hear" once he had an attorney. Interpreting this as a request for an attorney, the officers left defendant and tried to find him one.
After making several inquiries over a couple of hours, the officers were unsuccessful in finding defendant an attorney. They returned to the interrogation room, and one of the uniformed officers handcuffed defendant for transport to a detention center. Defendant expressed confusion on being removed from the room, stating, "hold on, wait . . . wait, huh?" One of the officers explained to defendant that they could not find defendant an attorney, and he did not have funds to hire his own attorney, so they were going to return him to the detention center. Defendant questioned why he was leaving, and the officer explained that they could not talk to him because he asked for an attorney and that they would use the statement that defendant had given them earlier. The officer further explained that defendant would be returned to the detention center, and the police and prosecutor would seek an arrest warrant. The officer reiterated that he could not talk to defendant about the case because defendant had asked for an attorney. Defendant then responded, "Uhm, I just want to get this over," and he repeated this sentiment several more times.
In response, the officer explained to defendant that he did not want defendant to feel "compelled" to speak to them. Defendant asserted that he wanted to speak with the officers. Interpreting this as a request to reinitiate their conversation, the investigating officer left the room, and an officer separate from the investigation instructed defendant again about his constitutional rights. Defendant signed another form indicating that he understood his rights, and he then confessed to hitting the victim with his truck. Defendant was in the interrogation room for over five hours, but only spoke to the officers for two of those hours. When he was not speaking with the officers, defendant received food, drink, and bathroom breaks, and he was free to stand and walk around the room.
Defendant was subsequently arraigned on the charge of first-degree murder, among other charges, and bound over to the circuit court for trial with a bond that would "remain at remand, or no bond." Defendant moved to suppress his confession and argued that the officers violated his constitutional rights because he was coerced into waiving his right to counsel. The circuit court found that the officers used their inability to locate an attorney for defendant as a scare tactic to coerce defendant into continuing the interrogation. Thus, the circuit court held that defendant's confession was not voluntary, and it suppressed the statement.
The prosecutor now presents this interlocutory appeal on leave granted. People v Fenderson, unpublished order of the Court of Appeals, entered November 15, 2023 (Docket No. 367926).
"This Court reviews for clear error a trial court's factual findings in a ruling on a motion to suppress evidence. A trial court's factual findings are clearly erroneous when this Court is left with a definite and firm conviction that the trial court made a mistake." People v Clark, 330 Mich.App. 392, 415; 948 N.W.2d 604 (2019) (citations omitted). "To the extent that a trial court's ruling on a motion to suppress involves an interpretation of the law or the application of a constitutional standard to uncontested facts, our review is de novo." Id. (citation omitted).
The United States Supreme Court has "established procedures designed to safeguard" a defendant's Fifth Amendment rights. Id. (citing Miranda v Arizona, 384 U.S. 436, 467; 86 S.Ct. 1602; 16 L.Ed.2d 694 (1966)). "[W]hen an officer interrogates a person who is in custody, that person must be informed in clear and unequivocal terms that he has the right to remain silent and that anything that he says can be used against him in court." Id. (quotation marks and citation omitted). Further, "the right to have counsel present during the interrogation is indispensable to the protection of the Fifth-Amendment right" and, "if [the accused] cannot afford a lawyer, one will be appointed for him." Id. at 415-416 (citation omitted). Thus, if the defendant has requested counsel in his dealing with the police, he is not subject to further interrogation (1) until counsel has been made available to him, or (2) unless and until he reinitiates a discussion with police and waives the right to counsel. Id. at 416, 419. Any evidence obtained during an interrogation may not be used against the accused "[u]nless the person in custody has been given the required warnings and still waives his rights." Id. at 416 (quotation marks and citation omitted). See also Edwards v Arizona, 451 U.S. 477, 484-485; 101 S.Ct. 1880; 68 L.Ed.2d 378 (1981) (explaining that once a defendant has asserted his or her right to counsel, no further interrogation may occur "unless the accused himself initiates further communication, exchanges, or conversations with the police").
In this case, defendant signed multiple forms that indicated that he understood his constitutional right to counsel. The circuit court found that the officers used their inability to locate an attorney for defendant as a scare tactic that coerced defendant into providing his confession. The prosecutor argues that the circuit court erred because defendant's confession was voluntary.
All "words or actions on the part of the police" are relevant in determining whether coercive police practices have caused an accused to "elicit an incriminating response." People v White, 294 Mich.App. 622, 629; 823 N.W.2d 118 (2011). "[W]hen a suspect has been afforded Miranda warnings and affirmatively waives his Miranda rights, subsequent incriminating statements may be used against him" if the waiver was "voluntarily, knowingly, and intelligently" made. People v Tanner, 496 Mich. 199, 209; 853 N.W.2d 653 (2014) (citations omitted).
A voluntary decision is one that is born from "free and deliberate choice, rather than intimidation, coercion or deception." Id. (citation omitted). "The test of voluntariness should be whether, considering the totality of all the surrounding circumstances, the confession is the product of an essentially free and unconstrained choice by its maker, or whether the accused's will has been overborne and his capacity for self-determination critically impaired." People v Ryan, 295 Mich.App. 388, 396; 819 N.W.2d 55 (2012) (citation omitted).
In determining whether a statement is voluntary, the trial court should consider, among other things, the following factors: the age of the accused; his lack of education or his intelligence level; the extent of his previous experience with the police; the repeated and prolonged nature of the questioning; the length of the detention of the accused before he gave the statement in question; the lack of any advice to the accused of his constitutional rights; whether there was an unnecessary delay in bringing him before a magistrate before he gave the confession; whether the accused was injured, intoxicated or drugged, or in ill health when he gave the statement; whether the accused was deprived of food, sleep, or medical attention; whether the accused was physically abused; and whether the suspect was threatened with abuse. [Id. 396-397 (citation omitted).]
In this case, defendant was 24 years old at the time of the interrogation, and he had completed three years of high-school education. Defendant was in the interrogation room for over five hours, and he spoke to the officers for approximately two of those hours. When defendant was not speaking to the officers, he received snacks and bathroom breaks. Defendant was fully informed of his constitutional rights on three separate occasions, and he affirmed that he understood his rights each time. The record does not indicate that there was any unnecessary delay in this process, and, further, there were no signs that defendant was intoxicated, drugged, or otherwise incapacitated during later attempts to interrogate him. Additionally, defendant made multiple unequivocal requests to speak to the officers without an attorney present, and he confirmed his reinitiation of the interrogation after being advised of his rights again.
With respect to this reinitiation, the record shows that defendant knew that he was under no obligation to speak with the officers when they returned. Importantly, when the investigating officers returned to take defendant back to the detention center, they did not initiate any questioning of defendant. Had defendant remained silent, the officers would have taken him back to the center, as they explained. At no point before defendant stated that he wanted to speak with them again without an attorney did an officer ask him questions about the offense.
When defendant stated that he wanted to speak to them without an attorney, the officers confirmed that he wanted to speak, and then another officer, unrelated to the investigation, came in to remind defendant of his rights. Defendant repeatedly stated throughout these encounters that he wanted to speak to the officers. Explaining to defendant that they could not speak with him because he had requested an attorney, and then later confirming with defendant that he wanted to speak to them, in response to defendant's assertion that he wanted to speak, does not show that the officers reinitiated the conversation. See id. at 479, 482. See also People v Adams, 245 Mich.App. 226, 236-239; 627 Mich.App. 623 (2001) (approving of an inquiry by police to clarify whether defendant is reinitiating a discussion with them without the presence of a lawyer). The officers were ending the contact-not reinitiating it-by returning defendant to the detention center. Thus, the record confirms that defendant was able to make a voluntary, informed decision to reinitiate the conversation. See People v Kowalski, 230 Mich.App. 464, 483-484; 584 N.W.2d 613 (1998) (holding that the "defendant, by unequivocally indicating that he no longer wanted an attorney and he wished to give a statement, initiated the conversation that ultimately led to his confession").
As to the motives and tactics of the officers, contrary to the what the dissent reads into the record, there is no reliable evidence to suggest that the investigators intentionally delayed or refused to find defendant an attorney. Rather, the record shows that they tried to find defendant an attorney who might have been available to represent defendant during the interview; that their efforts were not successful should not be grounds for blame or suppression of defendant's statement. Likewise, defendant was not physically or psychologically abused or threatened in any way, at any point-in fact, as noted earlier, defendant had ready access to food, drink, bathroom facilities, and room to walk around during the relatively short period of time when the officers were trying to find him an attorney. During this waiting period, the video shows that defendant certainly appeared to be bored, and he even lamented on occasion about being in this predicament, though this hardly can be considered as evidence of psychological abuse. There is, in short, no reliable evidence from which to conclude that the officers engaged in some kind of ruse about finding an attorney in the hope that having defendant placed alone in a room for a couple of hours would somehow psychologically break him into giving a confession.
"[T]he rule announced in Edwards is designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights." Clark, 330 Mich.App. at 418 (cleaned up). Considering the totality of the circumstances, we conclude that the officers did not badger or coerce defendant into continuing the interrogation, and defendant voluntarily waived his right to counsel. Thus, the circuit court erred when it suppressed defendant's confession.
On a separate note, defendant argues on appeal that the district court's pretrial release order was in error. This Court granted leave for the prosecutor to appeal the issues raised in its application for leave to appeal, and MCR 6.126 states that, in relevant part, "[i]f the application for leave to appeal is filed by the prosecutor and the defendant is incarcerated, the defendant may request that the court reconsider whether pretrial release is appropriate." See also MCR 6.106(H)(1).
With that said, defendant has not provided this Court with any argument that the district court abused its discretion. Generally speaking, "a criminal defendant in Michigan is entitled as a matter of constitutional right to have reasonable bail established for pretrial release." People v Davis, 337 Mich.App. 67, 74; 972 N.W.2d 304 (2021). When a defendant is charged with murder, however, the district court has the discretion to either set bond or deny bond when "the proof of defendant's guilt is evident or the presumption of the defendant's guilt is great." Id. at 77. Defendant was charged with first-degree murder, and the proof of defendant's guilt is evident, given his admissible confession. Thus, the district court did not err in providing no bond.
Reversed and remanded for proceedings consistent with this opinion.
GARRETT, J. (dissenting).
In the setting of a custodial interrogation, the United States Supreme Court has long held that a suspect who invokes his right to have counsel present "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v Arizona, 451 U.S. 477, 484-485; 101 S.Ct. 1880; 68 L.Ed.2d 378 (1981). In this case, I would conclude that the investigating officer impermissibly interrogated defendant, Daren Fenderson, after he invoked his right to have counsel present, such that Fenderson's subsequent confession was obtained in violation of Edwards. I would therefore affirm the trial court's order granting Fenderson's motion to suppress and must respectfully dissent from the majority opinion to the contrary.
I. RELEVANT FACTS
On August 2, 2022, Detroit Police Sergeant Reginald Beasley attempted to question Fenderson in connection with an alleged hit-and-run incident resulting in death, but discontinued the interrogation after determining Fenderson was under the influence of alcohol or an intoxicating narcotic. The following day, Fenderson appeared sober and alert and initially waived his rights under Miranda v Arizona, 384 U.S. 436; 86 S.Ct. 1602; 16 L.Ed.2d 694 (1966). Fenderson told the interrogating officers that he was carjacked on the night in question and the carjacker must have struck and killed the victim. The officers told Fenderson that video surveillance footage put him behind the wheel at the time of the collision. Fenderson responded: "Imma tell y'all what y'all want to hear but can I have a lawyer first?" Sergeant Beasley inquired: "Do you have a lawyer?" Fenderson replied: "No, but y'all gonna appoint one right?" Sergeant Beasley left the interrogation room, indicating he needed to make some calls. Fenderson was left alone in the room for two-and-a-half hours.
When Sergeant Beasley finally returned, he brought a uniformed officer who cuffed Fenderson's hands behind his back. Sounding desperate and concerned, Fenderson asked: "Where's my lawyer?" Sergeant Beasley responded: "You don't got one so . . .," and Fenderson stated: "Wait, huh?" Sergeant Beasley answered: "You gotta have a lawyer. You have one?" Fenderson incredulously stated: "No, you said that you gonna call one." Sergeant Beasley indicated he "tried to call one, but ain't nobody available, [and] you ain't got no money, so...." Fenderson stated: "Yeah I do, the money that I came in with. You can't use that money?" Sergeant Beasley asserted he could not use that money to hire an attorney. After several confused exclamations from Fenderson, Sergeant Beasley continued: "You said you wanted an attorney. I can't talk to you no more without an attorney, so the story you gave is the story I'll go with."
Fenderson expressed confusion and Sergeant Beasley explained that Fenderson would be taken back to the jail while the officers submitted a warrant to the prosecution. Fenderson again expressed confusion. The sergeant replied: "When you request an attorney, I can't talk to you no more about the case. If you wanted to talk to me, you just say that you want to talk without an attorney. But you said you wanted an attorney, and I'm not allowed to talk to you by law." Fenderson asserted he wanted "to get this over with." Sergeant Beasely offered to reread Fenderson his rights to allow him to agree to speak without an attorney despite telling Fenderson that he does not want him "to feel compelled to talk to" him without an attorney just because he did not want to be transported to the jail. Fenderson hesitantly agreed to speak to the officers without an attorney and Sergeant Beasley left the room again.
While alone in the interrogation room, Fenderson muttered to himself and began to cry. Sergeant Paul Brown then entered the interrogation room and reread Fenderson his Miranda rights. Fenderson expressed concern that matters were "not going right." Sergeant Brown indicated he was only there to secure a waiver of rights and that he had no role in the investigation. When Sergeant Brown asked if anyone forced or coerced him into giving a statement, Fenderson stated: "That's why I don't understand . . .," but he signed the waiver form anyway. Fenderson proceeded to tell the investigating officers that he did hit the victim, but claimed he acted in self-defense.
Before trial, Fenderson moved to suppress his statements to the police, contending he did not knowingly and voluntarily waive his right to counsel. Fenderson relied heavily on Sergeant Beasley's preliminary examination testimony. At the preliminary examination, Sergeant Beasley indicated he stopped questioning Fenderson when he requested an attorney and "left the interview room and I attempted to get a lawyer for him but was unsuccessful." The following colloquy ensued:
Q. Instead of ceasing and desisting the interview, you tried to get him a lawyer immediately?
A. He requested an attorney. And I tried to contact our Control Center to get a show cause attorney and I was unsuccessful.
Defense counsel inquired whether the department had an attorney on call to represent suspects in line-ups. Sergeant Beasley responded he did not determine whether such an attorney was on call and available. Defense counsel appeared shocked, asking the court: "Have you ever heard of that, Judge, that the police is trying to get him a lawyer?" The prosecution subsequently elicited testimony that when Sergeant Beasely left the interrogation room, he made "efforts to try to find a lawyer."
Sergeant Brown testified at the preliminary examination that "[s]everal" officers "worked as a team" to attempt to find an attorney for Fenderson. Sergeant Brown personally contacted the notification and control center "and tried to get a show [up] attorney for him. The show [up] attorney that were on duty that particular day said she only do photo line-ups." Sergeant Brown asserted he continued his efforts, but was not successful in securing an attorney.
Defense counsel ultimately moved to exclude the waiver of rights form and Fenderson's subsequent statements at the preliminary examination. Counsel noted Fenderson requested counsel and this should have stopped the interrogation. Instead, the officers embarked on an "unusual" procedure "of them trying to get him a lawyer." Counsel continued:
So at some point they recognize, they knew, their advantage, you know. It's a game. You know you're in a trying position. So they, these detectives know that this guy could go back to his cell. Go back to his cell, he's resting and leave this room because he invoked that Fifth Amendment right. Okay.
But they capitalized on something, but he's clearly not clear about it. So I'm going to object.
The prosecutor retorted that Fenderson "popped his head out and he wanted to speak to the officers," after waiting for the officers to find him an attorney.
The district court admitted Fenderson's statements at the preliminary examination, finding "for probable cause purposes" that the statement was voluntarily given after Fenderson waived his rights. Following the bind over, and after considering Fenderson's motion to suppress, the prosecution's answer, and the record, however, the circuit court granted the motion to suppress the evidence from trial, leading to this interlocutory appeal.
II. LEGAL BACKGROUND
In Edwards, 451 U.S. 477, United States Supreme Court squarely addressed the requirements before interrogation may be reinitiated following a suspect's request for counsel. In Maryland v Shatzer, 559 U.S. 98, 104-105; 130 S.Ct. 1213; 175 L.Ed.2d 1045 (2010), the Court summarized the principles supporting Edwards:
The rationale of Edwards is that once a suspect indicates that he is not capable of undergoing custodial questioning without advice of counsel, any subsequent waiver that has come at the authorities' behest, and not at the suspect's own instigation, is itself the product of the inherently compelling pressures and not the purely voluntary choice of the suspect. Under this rule, a voluntary Miranda waiver is sufficient at the time of an initial attempted interrogation to protect a suspect's right
to have counsel present, but it is not sufficient at the time of subsequent attempts if the suspect initially requested the presence of counsel. The implicit assumption, of course, is that the subsequent requests for interrogation pose a significantly greater risk of coercion. That increased risk results not only from the police's persistence in trying to get the suspect to talk, but also from the continued pressure that begins when the individual is taken into custody as a suspect and sought to be interrogated-pressure likely to increase as custody is prolonged. The Edwards presumption of involuntariness ensures that police will not take advantage of the mounting coercive pressures of prolonged police custody by repeatedly attempting to question a suspect who previously requested counsel until the suspect is badgered into submission. [Cleaned up.]
According to Edwards, 451 U.S. at 484-485, "when an accused has invoked his right to have counsel present during custodial interrogation," the accused must personally "initiate[] further communication, exchanges, or conversations with the police" or the police may not reengage interrogation without the presence of counsel.
III. ANALYSIS
I would affirm the circuit court's determination that Fenderson did not knowingly and voluntarily waive his right to counsel after invoking his right, and that his subsequent statements were inadmissible. Sergeant Beasley misled Fenderson, preventing Fenderson from making an informed decision.
A.
When a suspect invokes his right to counsel during a custodial interrogation, all questioning must stop. People v Tanner, 496 Mich. 199, 208; 853 N.W.2d 653 (2014). At oral argument, both the prosecution and the defense agreed the officers' actions to locate appointed counsel to represent Fenderson were highly unusual. Attorneys are on call to represent suspects during identification procedures, like live line-ups and photographic show-ups, but not to advise individuals during interrogation. Defense counsel specifically asserted there is no formal method of securing appointed counsel for an interrogation before arraignment. Further, the process to secure an attorney even for identification procedures is simply to call the Detroit Police Department's central notification and control center to ask them to contact on-call attorneys. The interrogating officers do not contact these attorneys directly. Both sides were unclear about what the officers actually did for more than two hours when the officers should have been well aware that a single phone call to the notification and control center was the only course of action. Indeed, defense counsel stated he had never encountered police officers attempting to find an attorney in this manner to represent a suspect being interrogated.
According to these concessions, a suspect undergoing interrogation is required to retain counsel if he or she wishes to immediately continue the interrogation with the representation of counsel. Both sides agreed that if the suspect requires appointed counsel, the officers must return the suspect to his or her cell and secure an arrest warrant. The matter then proceeds to district court arraignment. An arraignment must be conducted "without necessary delay," MCL 764.26, and a delay of more than 48 hours absent unusual circumstances is presumptively unreasonable, Riverside Co v McLaughlin, 500 U.S. 44, 56-57; 111 S.Ct. 1661; 114 L.Ed.2d 49 (1991). Counsel is appointed just before arraignment and within 48 hours. Michigan Indigent Defense Commission, Standard 4, available at <https://michiganidc.gov/standards/#tab-id-4> (accessed May 15, 2024). See also Oakland Co v State of Michigan, 325 Mich.App. 247, 268-269; 926 N.W.2d 11 (2018) (holding that states are permitted to grant greater protections than required by the Constitution, including expanding the right to counsel to criminal arraignments). Interrogation may continue with appointed counsel after that point. Again, both sides asserted that this is the proper procedure in the face of a request for appointed counsel during a pre-arraignment interrogation.
B.
As noted, once a suspect has invoked his right to counsel, all questioning must stop and may only be reinitiated by the suspect personally. Edwards, 451 U.S. at 484-485; Tanner, 496 Mich. at 208. I believe Fenderson did not personally reinitiate the interrogation. The prosecutor stated at the hearing on Fenderson's motion to suppress that Fenderson "popped his head out" of the interrogation room because he wanted to reinitiate the interrogation. If Fenderson "popped his head out," it was more likely because he was concerned after being left alone in the small interrogation room for two-and-a-half hours with nothing to occupy his time. Further, if Fenderson had "popped his head out" and announced his intent to speak to the officers without the presence of counsel, Sergeant Beasley would not have brought a uniformed officer into the interrogation room to prepare Fenderson for transport.
Rather, Fenderson's decision to speak to the officers without counsel was a direct result of the uniformed officer cuffing his hands behind his back and Sergeant Beasley's confusing and misleading statements that there was no attorney available to represent Fenderson and that Fenderson could not afford to retain an attorney. Contrary to the majority's holding, I do not believe Fenderson reinitiated the interrogation; he was backed into a corner and agreed to continue without counsel as a result of the coercive atmosphere created by Sergeant Beasley.
C.
I disagree with the majority's conclusion that Fenderson "made multiple unequivocal requests to speak to the officers without an attorney present," fully understood his rights, and knowingly and voluntarily waived his right to counsel. In my view, the record demonstrates Sergeant Beasley's incomplete and contradictory statements misled Fenderson into believing he would not be appointed counsel. Fenderson's confusion was clear from the video recording and the rereading of his Miranda rights did not provide clarification.
I believe the record shows that Sergeant Beasley manipulated Fenderson's desire to "get this over with." Sergeant Beasley correctly informed Fenderson that he would be returned to his cell because the invocation of the right to counsel meant the end of the interrogation. Fenderson clearly expressed his confusion about the course of events. Sergeant Beasley made no attempt to clarify that Fenderson would return to his cell pending arraignment, at which time counsel would be appointed. Instead, Sergeant Beasley told Fenderson that he did not have an attorney and could not afford one. A reasonable person in Fenderson's situation could interpret Sergeant Beasley's statements as meaning he or she could not have counsel at the interrogation, a legally incorrect proposition. Fenderson had no idea that counsel would be appointed in short order and likely feared he would be left to languish in jail awaiting the next step in the criminal process. Sergeant Beasley effectively sealed the deal by telling Fenderson that the investigating officers would rely on the version of events he had given during the first part of the interrogation, a story contradicted by video evidence.
Rereading the Miranda rights to Fenderson did not cure this error. Rereading a suspect these rights should clarify any confusion, not increase the level of misunderstanding. When Sergeant Brown read Fenderson his rights the second time, Fenderson suggested he was forced or coerced into waiving his right to counsel; after being asked whether he was forced or coerced into giving a statement, Fenderson replied: "That's why I don't understand...." However, no one questioned Fenderson to ascertain whether his confusion or lack of understanding had resolved.
This Court's opinion in People v Clark, 330 Mich.App. 392; 948 N.W.2d 604 (2019), exemplifies what should be done when a suspect expresses confusion about his rights. In Clark, "[o]nly a few minutes passed between the initial reading of defendant's Miranda rights, his invocation of his right to counsel, and his subsequent decision to submit a signed statement." Id. at 400. Before beginning their second discussion, an officer summarized the Miranda rights and "reminded defendant that he had invoked his right to counsel and asked him if he had changed his mind and wanted to talk to them. Defendant told them that he had changed his mind, he wanted to speak with them, and he immediately informed the officers" that he wanted to follow the statement given by another suspect. Id. at 401.
No such clarifying information or questions were posed to Fenderson. Instead, after just being told there were no attorneys available and he could not afford counsel, Sergeant Brown merely reread the Miranda rights verbatim to Fenderson. No one clarified his rights when Fenderson stated: "That's why I don't understand...." Fenderson was never given accurate information or advice to knowingly and voluntarily choose to give a statement to the officers.
The record of Fenderson's encounter with Sergeants Beasly and Brown demonstrates the officers misled Fenderson into involuntarily waiving his right to counsel during the interrogation and speaking to the officers without representation. I believe the circuit court correctly suppressed the resulting statements and would affirm.