Opinion
No. 340828
05-15-2018
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JAMES BRYAN KUHNS, Defendant-Appellant.
UNPUBLISHED Clare Circuit Court
LC No. 16-005457-FC Before: MURRAY, C.J., and SERVITTO and BOONSTRA, JJ. PER CURIAM.
Defendant appeals by leave granted the trial court's order denying his motion to suppress evidence of statements made during a May 3, 2016 custodial interview and granting the prosecution's motion in limine to allow the admission of those statements. We affirm.
People v Kuhns, unpublished order of the Court of Appeals, entered December 20, 2017 (Docket No. 340828).
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Defendant was charged with open murder for the death of Leonard Hempel, the father of defendant's former girlfriend, Angela Hempel. The alleged murder occurred in early April 2016, when the decedent and defendant had an altercation at the home they shared. Leonard's body was buried in the backyard of the home for several weeks until May 1, 2016, when several of his friends and relatives came over to the house to look for him and called the police after finding what they believed to be human remains. Later that day, the police executed a search warrant and found Leonard's body buried in the garden behind the house.
Angela was also charged in this matter, and pleaded guilty to several charges, including being an accessory-after-the-fact to her father's murder.
After the body was discovered, Sergeant Aaron Miller of the Clare County Sheriff's Department handcuffed defendant and brought him to the county jail, where Sergeant Miller spoke with defendant for about 30 minutes. At the outset of the discussion, Sergeant Miller asked, "Do you have an attorney?" Defendant responded, "I believe so," and further indicated that his father had an attorney. Sergeant Miller proceeded to give defendant his Miranda warnings as follows:
Defendant's May 1 and May 3, 2016 police interviews were video-recorded.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
You have the right to remain silent. Anything you say can and will be used against you in court. You have the right to consult with an attorney and have an attorney present during questioning. Right now you're not under arrest. If you are placed under arrest and you can't afford one [sic] can be provided to you before questioning at no cost. . . .
Defendant indicated that he understood his rights, and Sergeant Miller asked if defendant wanted to answer questions, to which defendant responded, "I think I should wait for your [sic] attorney." Sergeant Miller replied, "Wait for your attorney?" and defendant appeared to respond affirmatively. Sergeant Miller obtained contact information for the attorney; after receiving this information, Sergeant Miller did not ask defendant further questions related to the case, but discussed unrelated matters with him. Near the end of the encounter, Sergeant Miller asked defendant, "So, if we get your lawyer here you'll talk to us, you'll give us a statement?," to which defendant answered, "Sounds good, that's the plan so far." Sergeant Miller testified at defendant's preliminary examination that he believed defendant had asserted his right to remain silent without the presence of counsel, and that he did not question defendant about the alleged murder at that time because of his belief that defendant had requested the presence of counsel.
On May 3, 2016, Deputy David Aldrich contacted defendant in jail "to see if he had made contact with an attorney and if he would be willing to make a statement." Deputy Aldrich testified at a preliminary examination regarding this conversation with defendant as follows:
A. He stated that he wanted to speak to Sergeant Miller, and knew that Sergeant Miller was not in until six p.m. that evening and was going to make contact with him then. I asked, if I were able to get Sergeant Miller into the office now, if he would be willing to speak with him now. He stated that he would.Upon Sergeant Miller's entry into the interview room, he stated, "James, I heard you've been asking for me," to which defendant responded, "I would have asked for you yesterday, but . . . [inaudible]." Sergeant Miller said to defendant, "I got a call that you wanted to talk," and asked if it was defendant's intent to answer questions without counsel present. Defendant responded in the affirmative, saying that he had not been able to reach an attorney. Sergeant Miller asked again, "Okay, so you have changed your mind about the attorney?" Defendant responded, "Yes, I . . . I'm happy to talk." Sergeant Miller then gave defendant his Miranda warnings, and asked whether defendant was willing to waive his rights. Defendant responded, "I'm willing to waive rights and talk right now" and made reference to hoping to obtain a "plea deal." Defendant went on to make several inculpatory statements over the next approximately two hours.
Q. And, did you talk with him about having already asserted his right to counsel?
A. I don't believe I did. I believe I ended the conversation at, uh, I will try to get in contact with Sergeant Miller.
After the district court authorized the felony complaint, defendant moved to suppress his incriminating statements. The district court concluded that defendant had effectively invoked his right to counsel, and granted the motion to suppress. After the matter was bound over to the circuit court, the prosecution filed a motion in limine to admit defendant's incriminating statements; in response, defendant filed another motion to suppress the statements. The trial court concluded that defendant's statements were admissible, finding that defendant had failed to unambiguously assert his Fifth Amendment right to counsel. The trial court further determined that even if defendant had effectively invoked his right to counsel during the May 1, 2016 session, he subsequently waived it by initiating conversation with Sergeant Miller on May 3, 2016. The trial court therefore granted the prosecution's motion in limine and denied defendant's motion to suppress.
We generally refer to the circuit court as the "trial court."
Defendant moved this Court for leave to appeal the trial court's decision, which we granted. The trial court ordered a stay of proceedings pending this appeal.
II. STANDARD OF REVIEW
"[A] trial court's ruling on a motion to suppress the evidence is reviewed under the de novo standard for all mixed questions of fact and law, and for all pure questions of law." People v Marsack, 231 Mich App 364, 372; 586 NW2d 234 (1998). We review for clear error a trial court's findings of fact. Id. A trial court's finding of fact is clearly erroneous "if the reviewing court is left with a definite and firm conviction that the trial court made a mistake." People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011).
III. ANALYSIS
Defendant argues that the trial court erred by concluding that he had not unambiguously invoked his right to counsel on May 1, and further erred by concluding that, even if he had unambiguously invoked his right to counsel, he waived the invocation on May 3 by initiating the conversation with Sergeant Miller. Because we agree with the trial court's determination that defendant waived his right to counsel on May 3, we need not address whether defendant unambiguously invoked his right to counsel on May 1.
Generally, before engaging in custodial interrogation, police must inform a suspect of his or her rights to remain silent and to have an attorney present for questioning. Miranda v Arizona, 384 US 436, 469-473; 86 S Ct 1602; 16 L Ed 2d 694 (1966). Once the right to counsel is invoked, all interrogation must cease until counsel is made available, or unless the accused initiates further communication, exchanges, or conversations with the police. Edwards v Arizona, 451 US 477, 484-485; 101 S Ct 1880; 68 L Ed 2d 378 (1981). The prosecution may not "build its case against a criminal defendant with evidence acquired in contravention of constitutional guarantees and their corresponding judicially created protections." Michigan v Harvey, 494 US 344, 351; 110 S Ct 1176; 108 L Ed 2d 293 (1990) (addressing the rule articulated in Edwards, 451 US at 484).
Custodial interrogation consists of two parts: (1) custody and (2) interrogation. People v Henry (After Remand), 305 Mich App 127, 165; 854 NW2d 114 (2014) (BOONSTRA, J., concurring in part and dissenting in part). Defendant was clearly "in custody" following his arrest, and does not argue otherwise. Although we do not reach the issue of whether defendant unequivocally invoked his right to counsel on May 1, we note that Sergeant Miller and the other officers acted as though defendant had unequivocally invoked that right; there was no further "interrogation" of defendant after he indicated that he wished to contact an attorney. Id. at 173-188.
Proper invocation of the Fifth Amendment right to counsel requires an unambiguous request for counsel. Davis v United States, 512 US 452, 459; 114 S Ct 2350; 129 L Ed 2d 362 (1994). The request must be, "at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney." Id., quoting McNeil v Wisconsin, 501 US 171, 178; 111 S Ct 2204; 115 L Ed 2d 158 (1991). Although the statement need not be spoken with flawless diction, the accused "must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Davis, 512 US at 459. "If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect." Id.
Generally, an accused may effectively waive his or her Miranda warnings (including the right to the presence of counsel), "provided the waiver is made voluntarily, knowingly and intelligently." People v Daoud, 462 Mich 621, 633; 614 NW2d 152 (2000), quoting Miranda, 384 US at 444. Once an accused has invoked the right to counsel during a custodial interrogation, police must not subject him to further interrogation until either counsel is made available or the accused initiates further communication, exchanges, or conversations with the police. Edwards, 451 US at 484-485. A person "initiates" interrogation if he or she demonstrates "a willingness and a desire for a generalized discussion about the investigation," and does not merely inquire into "the incidents of the custodial relationship." Oregon v Bradshaw, 462 US 1039, 1045-1046; 103 S Ct 283; 77 L Ed 2d 405 (1983).
Defendant raises no challenge on appeal to the trial court's finding that defendant's waiver was voluntary, and limits the Miranda waiver issue to whether he initiated the May 3, 2016 interrogation.
For example, in People v Kowalski, 230 Mich App 464, 467; 584 NW2d 613 (1998), police brought the defendant to the police station for questioning in connection with a murder, and, after being given his Miranda warnings, the defendant invoked his right to counsel and requested to use a telephone to make arrangements. Officers left the defendant to make the call, and his codefendant confessed in the interim. Id. at 467-468. Roughly 90 minutes later, the officers informed defendant of the confession, and asked whether defendant "would still like to talk to an attorney." Id. at 468. In response, the defendant indicated that if his codefendant did not want an attorney, then neither did he, and that he would give a statement. Id. Officers again gave the defendant his Miranda warnings, and he waived them and gave a confession that was introduced at trial. Id. at 468-470.
On appeal, the defendant in Kowalski argued that his confession was inadmissible under Edwards because police initiated communication after he had invoked his right to counsel. Kowalski, 230 Mich App at 477-478. This Court disagreed and rejected the assertion "that Edwards prohibits all communication between the police and a suspect who has requested an attorney," holding instead that Edwards merely prohibits further "police-initiated custodial interrogation." Id. at 478. This Court explained that, "[f]or purposes of Miranda, interrogation refers to express questioning or its 'functional equivalent.' " Id. at 479, quoting Rhode Island v Innis, 446 US 291, 300-301; 100 S Ct 1682; 64 L Ed 2d 297 (1980); see also People v Henry (After Remand), 305 Mich App 127, 173-188; 854 NW2d 114 (2014) (BOONSTRA, J., concurring in part and dissenting in part). "The 'functional equivalent' of interrogation includes 'any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.' " Kowalski, 230 Mich App at 479, quoting Innis, 446 US at 301. But "a mere inquiry into whether an accused has changed his mind about wanting to speak without an attorney present is not considered 'interrogation' within the meaning of Edwards." Kowalski, at 479.
Defendant argues that because the ultimate holding of Kowalski was made on a procedural basis, its analysis of Edwards was not necessary to its resolution of the case and was therefore obiter dictum. "Obiter dictum is an incidental remark or opinion related to but unnecessary to the case." People v Jones, 300 Mich App 652, 656-657; 834 NW2d 919 (2013), vacated in part on other grounds 497 Mich 884 (2014). We disagree with defendant's contention, but even if Kowalski was not binding concerning this point of law, Kowalski properly conducted the analysis required by Edwards, 451 US at 484-485. --------
In this case, Deputy Aldrich did not initiate a custodial interrogation with defendant. He testified that when he approached defendant in jail on May 3, 2016, he merely inquired as to whether defendant "had made contact with an attorney and if he would be willing to make a statement." When defendant indicated that he desired to speak to Sergeant Miller, Deputy Aldrich responded by asking defendant, "If I were able to get Sergeant Miller into the office now, . . . would [defendant] be willing to speak with him now[?]" and defendant affirmed that he would. There was no express questioning about the case, nor did the exchange amount to a functional equivalent of interrogation, because the inquiries were not "reasonably likely to elicit an incriminating response from the suspect." Innis, 446 US at 301. Rather, Deputy Aldrich's questions pertaining to whether defendant had contacted counsel and whether he was conditionally willing to make a statement are analogous to the officer's inquiries in Kowalski, 230 Mich App at 468, 479 (holding that "a mere inquiry into whether an accused has changed his mind about wanting to speak without an attorney present is not considered 'interrogation' within the meaning of Edwards").
Likewise, Sergeant Miller did not initiate a custodial interrogation with defendant. When Sergeant Miller approached defendant in jail, he asked whether defendant intended to answer questions without counsel present, to which defendant responded in the affirmative. Sergeant Miller confirmed by asking a second time if defendant was willing to speak without the presence of counsel, and defendant again stated that he would. After reiterating defendant's Miranda warnings, Sergeant Miller then asked defendant if he wanted to waive those rights. In response, defendant stated, "I'm willing to waive rights and talk right now." Consequently, it was defendant—not Sergeant Miller—who initiated the subsequent interrogation, because defendant demonstrated "a willingness and a desire for a generalized discussion about the investigation." Bradshaw, 462 US at 1045-1046. Defendant's statements to Sergeant Miller were therefore made after a valid Miranda waiver and are admissible at trial.
Affirmed.
/s/ Christopher M. Murray
/s/ Deborah A. Servitto
/s/ Mark T. Boonstra