Opinion
SC: 163224 COA: 344834
12-15-2023
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kevin Lionel THOMPSON, Jr., Defendant-Appellant.
Genesee CC: 16-039869-FC
Order
On October 4, 2023, the Court heard oral argument on the application for leave to appeal the May 6, 2021 judgment of the Court of Appeals. On order of the Court, the application is again considered. MCR 7.305(H)(1). In lieu of granting leave to appeal, we REMAND this case to the Genesee Circuit Court for resentencing under People v Parks, 510 Mich. 225, 987 N.W.2d 161 (2022). In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court.
Viviano, J. (concurring in part and dissenting in part).
For the reasons stated in Chief Justice Clement’s dissent in People v Parks, 510 Mich. 225, 987 N.W.2d 161 (2022), I do not believe that a mandatory sentence of life without parole for a defendant who committed first-degree murder when he was 18 years old is unconstitutional. Therefore, I would deny leave to appeal on all of the issues raised by defendant.
Welch, J. (dissenting).
I respectfully dissent from the Court’s decision to deny leave to appeal. Instead, I would have granted leave and reversed the Court of Appeals majority holding. I believe that defendant can demonstrate prejudice due to his attorney’s not being present for a polygraph exam and that defendant did not waive his Sixth Amendment and Miranda rights by voluntarily reinitiating contact when he took the polygraph exam.
Miranda v Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
I. SUMMARY OF RELEVANT FACTS
Defendant, who was 18 years old at the time, was charged with the murder of David Fuller. He claimed that he was innocent. As a result, prior to trial, defendant’s trial counsel and the assistant prosecuting attorney orally agreed to have defendant submit to a polygraph examination. There is a dispute as to the parameters that were agreed upon for the examination. Defendant’s trial attorney claims that the agreement provided that defendant would not be asked any questions after the polygraph examination concluded, trial counsel was to be present outside the examination room, and the charges would be dismissed if defendant passed the exam. The assistant prosecutor claims she would not have entered into such an arrangement. No written document memorialized the agreement. Both parties agree that the examination was scheduled to be held at the courthouse at 7:00 p.m. on July 15, 2015.
Despite the fact that the parties agreed that the polygraph would start at 7:00 p.m., the examination was moved up several hours by the polygraph examiner, Agent David Dwyre. Trial counsel was not notified of this change. Agent Dwyre, explaining to defendant why his attorney was not present, implied that trial counsel knew about the change, expressly stating, "[s]ometimes the attorneys forget about the scheduling and all that." But in fact, defendant’s attorney did not know about the unilateral decision by Agent Dwyre to administer the polygraph earlier than 7:00 p.m.
Agent Dwyre additionally told defendant he would be his advocate, that defendant could use Agent Dwyre’s cell phone to call his attorney, and that six times in the last year defendants who had passed the polygraph examination were released from custody. Shortly thereafter, Dwyre assured defendant, "if you didn’t do anything wrong, I will boldly tell the world that you didn’t do anything wrong. So, they—they have confidence in me on that. The State of Michigan does and the Genesee County Prosecutor’s Office does, and your attorney does."
While Agent Dwyre provided defendant his Miranda rights and informed defendant at the start of the examination that he had the right to stop the questioning and call his attorney at any time during the examination, defendant did not know his attorney’s phone number. The examination then commenced. Throughout the entire polygraph examination, defendant maintained his innocence. However, after the examination concluded, Agent Dwyre continued to interview defendant. It was at this point that defendant confessed to the robbery and subsequent murder. Initially, defendant stated that he shot the victim by accident when the victim attempted to grab the gun. After Agent Dwyre pressed the issue, defendant changed his story two more times and ultimately admitted to intentionally taking part in the robbery but accidentally shooting the victim.
Trial counsel moved to suppress the postpolygraph statement on the ground that the prosecution violated an oral agreement that counsel was to be present outside the polygraph room and that there was to be no postpolygraph questioning. At that hearing, trial counsel let the court know that he had arrived at the agreed- upon time, 7:00 p.m., on the day of the examination only to find that the examination had been moved earlier and had already occurred. The trial court gave counsel the opportunity to testify about the agreement made with the prosecution, but trial counsel chose not to testify. The trial court then denied defendant’s motion to suppress.
Defendant was convicted of first-degree felony murder, MCL 750.316(1)(b), armed robbery, MCL 750.529, conspiracy to commit armed robbery, MCL 750.157a and MCL 750.529, carrying a concealed weapon, MCL 750.227, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to life in prison without the possibility of parole for the felony-murder conviction, concurrent terms of 225 months’ to 40 years’ imprisonment each for the armed robbery and conspiracy convictions, 24 to 60 months’ imprisonment for carrying a concealed weapon, and a two-year consecutive term for the felony-firearm conviction.
II. POSTCONVICTION PROCEEDINGS
Following defendant’s conviction, the State Appellate Defender moved for a new trial and a Ginther hearing, arguing that trial counsel had provided ineffective assistance by failing to memorialize the polygraph agreement in writing and then failing to testify regarding the terms of the oral agreement. At the Ginther hearing, trial counsel testified that he had agreed to the polygraph because there was to be no postpolygraph questioning and he was to be present outside the room. Defendant’s trial attorney acknowledged that he did not obtain a written agreement but testified that he clearly instructed defendant not to answer any questions after the polygraph exam had concluded. The assistant prosecutor testified that she did not recall any agreement in the case and that she would not have agreed to consider dismissal or a better plea offer if no postpolygraph questioning had been a term of the agreement. The trial court denied defendant’s motion for a new trial, opining that regardless of whether the agreement existed as defense counsel stated, defendant had voluntarily waived his right to counsel and his Miranda rights following a proper advice of rights from Agent Dwyre.
People v Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973).
Defendant appealed, and in a split decision, the Court of Appeals majority affirmed the trial court’s sentence. Defendant asked this Court to grant leave to appeal. This Court scheduled an oral argument on the application pursuant to MCR 7.305(H)(1) and asked the parties to address whether trial counsel was ineffective for initiating the polygraph examination by failing to memorialize the polygraph agreement, enforce the terms of the agreement, or testify to the existence of the agreement, and whether defendant had waived his right to counsel with respect to the polygraph examination or postpolygraph questioning.
After oral argument, the Court denied leave to appeal. However, I believe defendant has articulated potentially meritorious arguments that counsel provided ineffective assistance under Strickland v Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that defendant did not voluntarily or intelligently waive his right to counsel or Miranda rights during his polygraph examination.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Both the Michigan and the United States Constitutions require that a criminal defendant enjoy the assistance of counsel for his defense. Const. 1963, art. 1, § 20; US Const., Am. VI. The right to counsel is the right to effective assistance of counsel. Strickland, 466 U.S. at 686, 104 S.Ct. 2052; People v Pubrat, 451 Mich. 589, 594, 548 N.W.2d 595 (1996). To establish that trial counsel was ineffective, a defendant must first establish that counsel’s performance was deficient, which requires a showing that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; People v Trakhtenberg, 493 Mich. 38, 51, 826 N.W.2d 136 (2012). If a defendant can prove that counsel acted below an objective standard of reasonableness, they must then show that there was a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Trakhtenberg, 493 Mich. at 51, 826 N.W.2d 136; Pubrat, 451 Mich. at 596, 548 N.W.2d 595.
In this case, counsel failed to enter into a written agreement memorializing the conditions of the polygraph examination. The importance of memorializing such agreements to ensure that the terms of a polygraph examination are clear between a prosecutor and defense attorney has been long established in Michigan caselaw. See People v Leonard, 421 Mich. 207, 364 N.W.2d 625 (1984); People v Stricter, 119 Mich App 332, 326 N.W.2d 502 (1982). Trial counsel also failed to outline the terms of the polygraph agreement on the record during a court hearing and at the subsequent hearing on the motion to suppress.
In Leonard, the Court held that the "defendant did not knowingly waive his right to counsel in view of the stipulation executed by the prosecution and defense whereby the results of the polygraph examination and opinions drawn therefrom would not be admissible in evidence." Leonard, 421 Mich. at 228, 364 N.W.2d 625. In Strieter, the Court of Appeals held that the defendant's waiver of her right to counsel and waiver of her right to remain silent were invalid where the defendant was unaware of the misunderstanding between the prosecution and defense counsel regarding the use of her polygraph test answers and any other statements arising from the polygraph examination. Strieter, 119 Mich App at 340, 326 N.W.2d 502.
The troublesome nature of the lack of a written agreement is exacerbated by the fact that defendant was only 18 years old and had no experience in the criminal justice system. A defense attorney knows the risks inherent in a polygraph examination and a postpolygraph interview. In my view, defendant’s trial attorney failed to adequately protect defendant and his representation of defendant fell below an objective standard of reasonableness.
Until the postpolygraph interview, defendant maintained his innocence. There is therefore merit to defendant’s argument that had counsel memorialized the terms of the polygraph agreement as he understood it, either defendant would not have confessed or any confession would have been suppressed. In short, the prosecution would have been bound by the agreement terms, even if those terms were highly defense-favorable. See People v Reagan, 395 Mich. 306, 235 N.W.2d 581 (1975).
Additionally, had an agreement existed that set forth the time for the polygraph and made clear that counsel had to be present outside the polygraph room, Agent Dwyre could not have moved the time without breaching the agreement. Further, defendant’s attorney would have been present prior to the start of the examination to remind defendant to not answer any questions at the conclusion of the exam.
Finally, there was a lack of direct evidence linking defendant to the murder, making the confession a powerful source of evidence in this matter. "A confession is like no other evidence." Arizona v Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Without a confession, I believe there is a strong likelihood the outcome of the proceeding would have been different. As a result, I would find that defendant is able to establish prejudice as required when a claim of ineffective assistance of counsel is made, Strickland, 466 U.S. at 687, 104 S.Ct. 2052, and therefore vacate his conviction and order a new trial.
The murder weapon was found in codefendant Ah’Quan Lay’s car; defendant was excluded as the donor of DNA found on the victim’s car door handle, a cartridge case, and the murder weapon; defendant was not matched to the murder weapon by fingerprint identification; and Lay had worked at the Cottage Inn with the victim. Defendant’s phone records did, however, establish him in the area at the time of the crime, and a witness described seeing a Black man running from the scene in the direction of defendant’s godmother’s house where defendant was spending the night.
IV. WAIVER
Apart from ineffective assistance of counsel, I also have concerns that defendant’s waiver of his rights was involuntary given the totality of the circumstances surrounding the polygraph examination.
A. EDWARDS v ARIZONA
I believe there is merit to defendant’s claim that the unilateral change of time for the polygraph examination violated his light to counsel under Edwards v Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). In Edwards, the United States Supreme Court held that "when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." Id. at 484, 101 S.Ct. 1880. Further, when an accused has "expressed his desire to deal with the police only through counsel, [he] 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 .... " Id. at 484-485, 101 S.Ct. 1880.
In Montejo v Louisiana, 556 U.S. 778, 787, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009), the United States Supreme Court further explained that
[t]he Edwards rule is designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights. It does this by presuming his postassertion statements to be involuntary, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards. This prophylactic rule thus protect[s] a suspect’s voluntary choice not to speak outside his lawyer’s presence. [Citations and quotation marks omitted.]
Defendant here argues that Agent Dwyre’s actions constituted police-initiated contact after defendant had expressed his desire to deal with law enforcement only through counsel, and he asserted a desire to have his counsel present outside the room during the examination. Thus, when Agent Dwyre moved the examination to an earlier time without notifying trial counsel and giving trial counsel an opportunity to be present before the examination, that constituted a police-initiated interrogation because the terms that the polygraph was conditioned on were not followed. It is my belief that defendant invoked his right to counsel and should have been effectively off-limits to the police and prosecution until the agreed-upon time for the polygraph examination. Because Agent Dwyre moved the time earlier without consulting trial counsel, I believe defendant has a potentially meritorious claim that any waiver of his right to counsel was merely in response to a police-initiated interrogation and therefore in violation of the protections afforded to defendant under Edwards.
B. MIRANDA WAIVER
Even if there was no Edwards violation, I am still troubled by the lower courts’ determination that defendant voluntarily waived his Miranda rights by engaging in the polygraph examination.
An individual’s right to be free from compelled self-incrimination is guaranteed by the state and federal Constitutions. US Const., Ams. V and XIV; Const. 1963, art. 1, § 17. "To protect a defendant’s Fifth Amendment privilege against self-incrimination, custodial interrogation must be preceded by advice to the accused that ‘he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.’ " People v Cortez (On Remand), 299 Mich App 679, 691, 832 N.W.2d 1 (2013), quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602. "A suspect’s waiver of his Miranda rights must be made ‘voluntarily, knowingly, and intelligently.’ " People v Tanner, 496 Mich. 199, 209, 853 N.W.2d 653 (2014), quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602. To determine whether a waiver is valid, the United States Supreme Court has articulated a two-part inquiry:
First, the relinquishment of the right must have been "voluntary," in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Tanner, 496 Mich. at 209, 853 N.W.2d 653, quoting Moran v Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).]
The trial court and Court of Appeals majority concluded that defendant voluntarily waived his Sixth Amendment and Miranda rights. The majority summarized the trial court’s findings that
regardless of the terms of the polygraph agreement, the record reflects that defendant was fully aware that counsel would not be present during questioning, defendant was advised of his rights and understood that he could request counsel or contact his attorney at any time during questioning but never did so, and that counsel had instructed defendant not to answer any questions after the polygraph examination but defendant disregarded counsel’s instructions and knowingly and voluntarily waived his rights and proceeded to respond to further questioning. [People v Thompson, unpublished per curiam opinion of the Court of Appeals, issued May 6, 2021, 2021 WL 1837793 (Docket No. 344834), p. 7.]
As set forth by Judge Ronayne Krause in her dissent in this case, a Miranda waiver alone does not end the analysis as to whether defendant’s waiver is valid. While the prosecution argues that there can be no polygraph without a Miranda waiver and that suspects can invoke their right to counsel or stop being questioned whenever they would like, Judge Ronayne Krause correctly noted that while those are factors to be considered, they must be weighed against the totality of the circumstances.
Looking to the circumstances as a whole, defendant was supposed to meet counsel before his polygraph examination, the examination was moved by several hours to an earlier time, defendant was only 18 years old and had no experience with the criminal justice system, defendant allegedly did not have a lot of sleep and did not know his attorney’s phone number, any call defendant made to his attorney would not have been confidential and would have been made on Agent Dwyre’s phone, defendant was under the impression that there was an agreement that would protect some of his rights, and defendant claims that he was misled into believing that defense counsel had approved of the change to his examination conditions and time. Furthermore, there is added confusion due to Agent Dwyre’s telling defendant that he would be his advocate, that trial counsel knew what he was doing, and that the examination was not being recorded.
The Court of Appeals made distinctions between this case and People v Strieter. In Strieter, there was a misunderstanding between the defense attorney and the prosecutor regarding the admissibility of the defendant’s statements during a polygraph examination. Strieter, 119 Mich App at 334-336, 326 N.W.2d 502. The Court of Appeals held that the defendant’s waiver of her right to counsel was not voluntarily, intelligently, and knowingly made where "[a]t the time the interrogation occurred defendant believed that her attorney approved of the procedure and that she would be allowed to take a polygraph examination." Id. at 338, 326 N.W.2d 502. When comparing the two cases, the Court of Appeals majority here stated:
[T]he defense attorney in Strieter had not advised his client against speaking to the officer, except for answering questions during the polygraph examination. The attorney in Strieter effectively disapproved of a polygraph examination under conditions to which the prosecutor did not agree. In contrast, defense counsel in this case instructed defendant not to consent to an interview after the examination. Defendant disregarded these instructions against counsel’s advice, even after Agent Dwyre specifically in- formed him that he could call his attorney and Agent Dwyre offered defendant the use [of] his cell phone to do so. Strieter does not stand for the proposition that a prosecutor’s deviation from a polygraph agreement negates a defendant’s subsequent knowing and voluntary waiver of his rights. [Thompson, unpub. op. at 6.]
I find this approach too narrow given the totality of circumstances in this case. While it is time that trial counsel had warned defendant against speaking after the examination, trial counsel was not at the actual examination, as agreed upon, to reiterate that warning or to be easily accessible should defendant have questions. Furthermore, the Court of Appeals states that defendant could have called his attorney, relying on Agent Dwyre’s offer to use his cell phone, which of course would not have been confidential and disregarded the fact that defendant did not know his attorney’s phone number. All of these factors support defendant’s argument that the waiver of his Miranda rights during the postpolygraph interview was not in fact voluntary and that the resulting confession should have therefore been suppressed.
For the foregoing reasons, I respectfully dissent.
Cavanagh, J., did not participate due to a staff conflict.