PEOPLE OF MI V LAWRENCE W HARRINGTON II
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STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
October 2, 2003
9:10 a.m.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee
v
No. 239699
Allegan Circuit Court
LC No. 01-12001-FC
LAWRENCE W. HARRINGTON, II,
Defendant-Appellant.
Updated Copy
November 21, 2003
Before: Cooper, P.J. and Fitzgerald and Kelly, JJ.
KELLY, J. (dissenting).
I respectfully dissent. Because no interrogation of defendant occurred until after
defendant initiated further conversations with the troopers regarding the charged crime, the trial
court properly denied defendant's motion to suppress.
I
After defendant's arrest but before his arraignment, Trooper Gutierrez spoke briefly with
defendant at the jail. They discussed the nature of the investigation, defendant was given
Miranda1 warnings and defendant was asked to make a statement. According to the trooper,
defendant insisted on taking a polygraph examination to "prove his innocence." The trooper
explained to defendant that he would be appointed an attorney at his arraignment later that day
and he should speak with this attorney about taking the polygraph examination and get his
attorney's opinion as to whether he should take the examination.
After defendant had been arraigned, Trooper Gutierrez again visited defendant at the jail.
Trooper Gutierrez testified that the sole purpose of visiting defendant was to determine whether
defendant wanted to take the polygraph examination and:
I asked him if he had talked with his attorney about the polygraph 'cause I
had it set up for the following day.
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Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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He said no, he hadn't, and I asked him why not and he said that the
attorney had kept him waiting for 2-1/2 hours in the hallway during a previous
contact and never had a chance to communicate with him. I asked if he knew his
attorney's name and he did . . . I said do you want me to contact him, I can get
him for you right now before we go any further and he said no. He said I don't
want him here. I said I can get him here, and he said no, I don't want him here. I
said are you sure, and he said yes.
Defendant, however, testified that he did not desire to speak with Trooper Gutierrez, but spoke
with him because somebody from the jail told him that he had a visitor without informing him
who it was. Trooper Gutierrez informed him that a polygraph examination had been scheduled
for the next day and when defendant asked to speak to his attorney first, the trooper said that it
would take a long time to reschedule the polygraph, and defendant would have to stay in jail
while waiting to take the examination. Defendant did testify that he desired a polygraph to prove
his innocence and that before administration of the polygraph examination, Trooper Gutierrez
warned defendant that his attorney may recommend that he not take the examination. Further
defendant testified:
Q. Did you feel you had a choice in the matter?
A. I felt I had a choice, whether I wanted to take it [polygraph
examination] or not, yes, but I wanted to take it to prove my innocence because I
believed that I was innocent. I know I didn't do this.
The following day, Trooper Gutierrez arrived at the jail with two Michigan State police
troopers, Ryan Maki and Mike Jaffery. According to defendant, when Trooper Gutierrez arrived
he informed him that they were going to take him to the site of the polygraph and if defendant
passed the examination the charges against him would be dropped. Trooper Gutierrez, along
with Troopers Maki and Jaffrey, transported defendant to a polygraph examination in Grand
Rapids. During the trip, there was no discussion of the charges against defendant and defendant
was not questioned in any manner. When they arrived, Michigan State Police Trooper Specialist
Ben Escalante again gave defendant his Miranda rights. In addition, defendant was provided
with a written explanation of his rights, which defendant read and signed. Trooper Escalante
then administered the polygraph examination. Defendant was subsequently notified that he
failed the examination.
According to Trooper Gutierrez, after the polygraph examination, "a disheveled
defendant" said that things did not go well and asked if they could talk about the investigation.
In response, Trooper Gutierrez told him to "relax a little while, catch his breath, think about what
happened and if he wanted to talk we'd talk back at the jail." Before returning to the jail, they
made a stop at the state police post in Wayland. At the post, Trooper Maki was alone in the car
with defendant while Trooper Gutierrez and Trooper Jaffery went inside. According to Trooper
Maki, while the other troopers were gone, defendant made an unsolicited statement about how he
was upset by the polygraph results and wanted to talk. Trooper Maki did not respond. When
Trooper Gutierrez returned with the lead investigator on the case, Trooper Hoffman, they
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proceeded to take defendant back to the jail. No discussion of the charges occurred during the
thirty-five- to forty-mile trip back to the jail.
Trooper Gutierrez stated that upon arriving at the jail, defendant again asked him if he
would stay and talk about the investigation. Trooper Maki, who was also in the car, testified that
he heard defendant ask Trooper Gutierrez to stay with him and talk. According to defendant, the
troopers asked for an interview room as soon as they arrived at the jail and they immediately
took defendant into the room and began to question him and pressure him to confess. The
interview lasted about 1-1/2 hours, during which defendant denied the charges, confessed, and
then recanted his statements. Defendant was not read his Miranda rights again, but was
reminded that he had been read his rights earlier in the day at the polygraph examination. At
trial, defendant admitted that he knew his rights at the time of the interview and that all
statements he made were voluntary.
Defendant moved to suppress the statements that he made to the police after he was
arraigned and appointed an attorney. At the hearing on defendant's motion, defendant argued
that the statements should be suppressed because they were obtained in violation of his Sixth
Amendment right to counsel when the police initiated contact with him after arraignment and
appointment of counsel. The prosecution argued that the police properly obtained the statements
after defendant knowingly and intelligently waived his right to counsel by initiating contact with
the police.
The trial court held that the troopers' testimony that defendant initiated the contact with
the police after the polygraph examination was more persuasive than defendant's testimony. The
court found that this evidence, along with Trooper Gutierrez's claim that he reminded defendant
of his rights and defendant indicated that he knew them "by heart," was sufficient to prove that
defendant initiated the contact; therefore, the motion to suppress was denied.
II
The Sixth Amendment guarantees anyone accused in criminal proceedings the right to
assistance of counsel. People v Anderson (After Remand), 446 Mich 392, 402; 521 NW2d 538
(1994). Once defendant requests counsel either at questioning or at his arraignment, "the police
may not conduct further interrogations until counsel has been made available to the accused,
unless the accused initiates further communications, exchanges, or conversations with the
police." Id. quoting People v Bladel (After Remand), 421 Mich 39, 66; 365 NW2d 56 (1984).
Thereafter, "[i]f a defendant chooses to reinitiate communications, he must be sufficiently aware
of both his Fifth and Sixth Amendment rights to effectuate a voluntary, knowing, and intelligent
waiver of each right." Bladel, supra at 66.
In reversing the trial court, the majority relies on Anderson (After Remand), supra. In
that case after defendant requested a polygraph and was arraigned, the detective assigned to the
case set up an appointment and contacted the defendant by leaving a message at his house. Id. at
401. The defendant received the message and contacted the detective to accept the offer for
transportation to the polygraph examination. Id. At the administration of the examination, the
defendant signed a standard waiver form, waiving his Miranda rights. Id. In a postpolygraph
interview, the detective asked the defendant if he remembered the rights read to him earlier in the
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day and the defendant responded in the affirmative and then gave the detective a statement. Id.
Our Supreme Court found that although the defendant initiated prearraignment contact regarding
the polygraph examination, postarraignment communication was initiated by the detective when
he left a message at the defendant's house and defendant never initiated contact with the police
thereafter; rather questioning of the defendant was initiated by the police. Id. at 404. Therefore,
the postpolygraph interrogation and admission by the defendant in the patrol car was obtained in
violation of the defendant's Sixth Amendment rights. Id.
However, the facts in this case are similar to the facts in Anderson only to the extent that
the police initiated the first postarraignment contact with defendant regarding the polygraph
examination. Despite this limited factual similarity, here, unlike in Anderson, defendant
requested that the police stay and talk with him after the polygraph examination, thereby
reinitiating contact with the police. Troopers Maki and Gutierrez testified that defendant asked
police to talk with him about the investigation, and he was fully aware of his rights as he
indicated that he knew them "by heart." The holding in Anderson does not apply where a
defendant is the initiator of communications with police and thereafter waives his Sixth
Amendment right to counsel.
Moreover, even though defendant denies reinitiating contact, the trial court believed the
troopers' testimony. This Court will not review issues of credibility of witnesses. People v
Lemmon, 456 Mich 625, 642; 576 NW2d 129 (1998). Finally, although the police did contact
defendant postarraignment by visiting him in jail to discuss the appointment for the polygraph
examination, this contact did not generate the statements that defendant wishes to suppress.
Defendant only made the statements that he wished to suppress after he reinitiated contact with
the police by making a request to discuss the investigation.
I also disagree with the majority's statement that a jailed defendant cannot validly waive
his right to counsel and make inculpatory statements simply because they were "obtained during
the course of ongoing conduct that was originally initiated by police." Ante at ___. Again, I note
that no interrogation occurred until defendant requested to talk with the troopers. Defendant was
reminded of his rights and was free to decline to make any statement at all.
III
I agree with the trial court that this case is more appropriately compared to People v
McElhaney, 215 Mich App 269; 545 NW2d 18 (1996). In McElhaney, the defendant initiated
contact with police when he demanded a polygraph examination via a letter postarraignment.
The defendant was then read his Miranda rights and given a polygraph examination. Id. at 273.
In a postpolygraph interview, the defendant confessed to the crime. Id. On appeal, the defendant
argued that the statement he made after the polygraph examination was inadmissible because it
violated his Sixth Amendment right to counsel. Id. In McElhaney, this Court stated "a knowing
and intelligent waiver of the Sixth Amendment right to counsel depends upon the particular facts
and circumstances surrounding that case, including the background, experience, and conduct of
the accused." Id. at 274. Through application of this test, the McElhaney Court held that the
defendant knowingly and intelligently waived his right to counsel because he initiated contact
with the police regarding the polygraph, he had a lengthy criminal history and insisted on the
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polygraph despite his counsel's advice, and he was read his Miranda rights before the polygraph.
Id. at 274-275.
In the instant case, defendant meets the criteria set forth in McElhaney. As previously
discussed, defendant initiated contact with the police before making the statements in question.
At the polygraph administration, defendant was read his Miranda rights and signed a standard
form waiving them. Trooper Escalante, the polygraph administrator, informed the officers on the
case of defendant's waiver. When Trooper Gutierrez reminded defendant of his rights before the
postpolygraph interview, defendant said that he knew his rights "by heart." Similar to
McElhaney, defendant had previous contact with the criminal justice system, including a pending
drunken driving charge in Michigan at the time he left for California. Additionally, defendant
testified that the police did not coerce or in any way force defendant to make a confession and
that he made his statements voluntarily. Finally, defendant wanted a polygraph examination in
order "to prove his innocence," and he knew that he had the option of declining to take the
examination.
The trial court properly applied the McElhaney test and held that defendant sufficiently
demonstrated that he knowingly and intelligently waived his Sixth Amendment rights because,
like the defendant in McElhaney, he had previous experience with the criminal justice system,
was read his Mirada rights before his confession, and he initiated postarraignment contact with
the police. Therefore, I conclude the trial court did not err in denying defendant's motion to
suppress.
/s/ Kirsten Frank Kelly
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