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PEOPLE v. BISHOP
People v. Bishop, Docket No. 47884 (Mich. Ct. App. July 12, 1982)
Factual and Procedural Background
Defendant Ernie Bishop was tried in a four-day bench trial and convicted of voluntary manslaughter (MCL 750.321; MSA 28.553) after originally being charged with second-degree murder (MCL 750.317; MSA 28.549). On September 25, 1978, he was sentenced to 8 to 15 years' imprisonment. Defendant was initially denied leave to appeal but later granted leave to this Court. The Court considered two issues: (1) an originally-raised contention that the trial judge should have disqualified himself after presiding over a Walker hearing (an issue the defendant withdrew at oral argument in light of People v Cocuzza), and (2) whether a 10:30 p.m. statement to Detective Jerry Lawson on August 19, 1977, was erroneously admitted where defendant had earlier invoked his right to counsel.
Relevant events on August 19, 1977 (as found in the record): defendant walked into the jail in the afternoon, said he had just killed his wife, and was detained. Around 6:32 p.m. Captain Dan Duncan advised defendant of his Miranda rights; defendant began to answer but stopped when he learned he was being recorded and asked for an attorney. The interview ceased. No attorney was located; Duncan asked for the attorney's name and offered a phone book. Defendant had earlier asked to speak with Detective Lawson. At about 9:45 p.m. he again asked to speak to Lawson. Lawson arrived about 10:00 p.m.; Duncan asked whether defendant still wanted to see Lawson and defendant said he did. Lawson advised defendant of his rights, defendant signed a "Recognition of Rights" form at 10:30 p.m., did not ask for an attorney or express unwillingness to talk, and spoke with Lawson for 25–30 minutes. The trial court admitted the 10:30 p.m. statement and excluded earlier statements from that day.
Legal Issues Presented
- Whether the trial judge should have disqualified himself from conducting the bench trial after presiding over defendant's Walker hearing (an issue later withdrawn by defendant in light of People v Cocuzza).
- Whether the 10:30 p.m. statement to Detective Jerry Lawson was admissible despite an earlier invocation of the right to counsel—i.e., whether defendant validly, knowingly, and intelligently waived his right to counsel and privilege against self-incrimination prior to that statement.
Arguments of the Parties
Appellant's (Defendant's) Arguments
- Initially argued the trial judge should have disqualified himself after presiding over the Walker hearing; this contention was withdrawn at oral argument based on People v Cocuzza.
- Contended that once he invoked his right to counsel around 6:30 p.m. and refused further questioning, he should not have been questioned thereafter and the 10:30 p.m. statement should have been excluded.
Respondent's (People's) Arguments
- The prosecution bore the burden of proving that any post-invocation statement was the product of a knowing, intelligent, and voluntary waiver of the right to counsel.
- The prosecution relied on the facts that defendant repeatedly requested to speak to Detective Lawson (including again at 9:45 p.m.), was re-advised of his rights at 10:30 p.m., signed a Recognition of Rights form, did not request an attorney at that time, and voluntarily spoke for 25–30 minutes—factors showing a valid waiver.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| People v Cocuzza, 413 Mich. 78; 318 N.W.2d 465 (1982) | Used to show that the defendant's Walker-disqualification contention was no longer viable. | The defendant withdrew his claim that the trial judge should have disqualified himself in light of this decision. |
| People v Walker (On Rehearing), 374 Mich. 331; 132 N.W.2d 87 (1965) | Referenced as the type of hearing (a Walker hearing) after which the disqualification issue arose. | The Walker hearing is the procedural context for defendant's initial disqualification argument (later withdrawn). |
| Miranda v Arizona, 384 U.S. 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966) | Stated the rule: "If the individual states that he wants an attorney, the interrogation must cease until an attorney is present..." and that waiver requires a heavy burden on the government to show it was knowing and intelligent; also noted an express statement of willingness to make a statement can constitute a waiver. | The court relied on Miranda's principles concerning invocation of the right to counsel and the government's burden to demonstrate a valid waiver of that right. |
| Edwards v Arizona, 451 U.S. 477, 484-485; 101 S Ct 1880; 68 L Ed 2d 378 (1981) | Held that an accused who has expressed a desire to deal with police only through counsel is not subject to further interrogation until counsel is made available, unless the accused himself initiates further communications. | The court applied Edwards to evaluate whether further interrogation was permissible absent counsel and whether the defendant himself initiated further communication with police. |
| People v Paintman, 412 Mich. 518, 530; 315 N.W.2d 418 (1982) | Interpreted Edwards as clarifying existing rules, emphasized that Edwards did not bar abandonment of the right to counsel without attorney involvement but required a clear demonstration of waiver; "The Fifth and Fourteenth Amendments require a clear demonstration of waiver." | The court applied Paintman to hold that a defendant who at one point requested counsel may later abandon that right and be questioned, but that the prosecution bears the burden to show a voluntary, knowing, and intelligent waiver; the court found the prosecution met that burden here. |
Court's Reasoning and Analysis
The Court analyzed the admissibility of the 10:30 p.m. statement under Miranda, Edwards, and the Michigan Supreme Court's interpretation in Paintman. The analysis proceeded as follows:
- Established the factual timeline from the Walker hearing record: defendant first invoked his right to counsel at about 6:30 p.m., ceasing the interview; he had repeatedly requested to speak to Detective Lawson earlier and again around 9:45 p.m.; Lawson arrived about 10:00 p.m.
- Noted that under Miranda a request for counsel requires cessation of interrogation until counsel is present, but Miranda also recognizes that a subsequent waiver is possible though the government bears a heavy burden to prove the waiver was knowing and intelligent.
- Explained Edwards' additional rule that after a request for counsel, interrogation must cease unless the accused initiates further communication; Paintman was cited as clarifying Edwards and requiring a clear demonstration of waiver rather than announcing new law.
- Applied these standards to the facts: defendant twice requested to speak to Lawson, affirmatively stated at 10:30 p.m. that he wanted to talk to Lawson, was advised of his rights again, signed a Recognition of Rights form, did not ask for an attorney or indicate unwillingness to talk, and spoke for 25–30 minutes. The court found these facts satisfied the prosecution's burden to show a voluntary, knowing, and intelligent waiver.
- The court rejected the contention that defendant's illness (need for oxygen) undermined the voluntariness or intelligence of the waiver, noting the record showed he was calm during the 10:30 p.m. interview and not in physical difficulty.
Holding and Implications
The appellate court AFFIRMED the trial court's judgment.
Implications:
- Direct effect: The conviction for voluntary manslaughter and the sentence of 8 to 15 years' imprisonment were upheld.
- The court applied existing Supreme Court and Michigan Supreme Court precedents (Miranda, Edwards, and Paintman) to conclude the prosecution met its burden to show the defendant validly waived his right to counsel at 10:30 p.m.; no new legal precedent was declared by this opinion.
C.J. FALAHEE, J.
Defendant was tried and convicted following a four-day bench trial of voluntary manslaughter, MCL 750.321; MSA 28.553. He was originally charged with second-degree murder, MCL 750.317; MSA 28.549. On September 25, 1978, he was sentenced to a term of from 8 to 15 years imprisonment. Defendant was granted leave to appeal to this Court after having once been denied leave. The Court now considers the merits of defendant's appeal.
Defendant originally claimed that the trial judge should have disqualified himself from conducting the bench trial after having presided over defendant's Walker hearing. He withdrew that contention at oral argument before this Court, acknowledging that the issue was no longer viable because of the recent Michigan Supreme Court case, People v Cocuzza, 413 Mich. 78; 318 N.W.2d 465 (1982).
People v Walker (On Rehearing), 374 Mich. 331; 132 N.W.2d 87 (1965).
Defendant next contends that the trial court erred in admitting his 10:30 p.m. statement made to Detective Jerry Lawson of the Lansing Police Department on August 19, 1977.
The testimony presented at the Walker hearing indicates that defendant walked into the jail in the afternoon of August 19, 1977, and asked whether Lieutenant Herbert was working. He was advised that Herbert was not present. The defendant then stated his name, began putting his personal belongings on the desk, and related that he had just killed his wife. The defendant was thereafter detained. Around 6:32 p.m. Captain Dan Duncan advised defendant of his Miranda rights. He started to answer questions but stopped when he learned that he was being recorded. At that time he also asked for an attorney. The interview then ceased. There wasn't any attempt by the police to locate an attorney for defendant; however, Captain Duncan did ask defendant for the name of his attorney. Defendant had trouble remembering the name. He was offered a phone book if it would be helpful. Defendant, it appears, had earlier asked to speak to Detective Lawson as well as Detective Herbert and also again around 9:45 p.m. he asked to speak to Lawson. Neither was available. However, at about 10 p.m. Detective Lawson arrived at the police station. Captain Duncan then inquired of defendant whether he still wanted to see Detective Lawson and he advised that he did. It appears that the two had known each other a number of years. Lawson informed defendant that he had been to the crime scene and that his wife was dead. He advised defendant of his rights and defendant signed a "Recognition of Rights" form. He did not ask for an attorney or indicate any unwillingness to talk to Lawson. The two talked for about 25 to 30 minutes.
Miranda v Arizona, 384 U.S. 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
The court ruled the statement made to Detective Lawson admissible and any previous statements that day as inadmissible. Defendant contends the statement he made to Detective Lawson should not have been admitted into evidence. He claims that once he invoked his right to counsel earlier in the day he should not have been questioned thereafter.
At the beginning of the taped interview with defendant the following exchange occurred:
"Today's date is August 19, 1977. This will be a statement taken from Ernie Bishop. Taking the statement will be Detective Jerry Lawson. Present during the course of the statement is Detective Dan Duncan. Statement will start at 10:35 p.m.
" Q. Ernie, uh, I show you a piece of paper mentioned as the Recognition of Rights. Did you just sign that?
" A. Yeh.
" Q. And uh, is the time on there?
" A. Yeh.
" Q. And that was taken on uh, August 19, 1977 at 10:30 p.m., right?
" A. Yeh.
" Q. And that's the time it is now?
" A. Yeh.
" Q. And you've seen several of these forms before here tonight, and before here tonight you didn't want to give a formal statement, is that correct?
" A. Yeh.
" Q. And uh, since that time you've decided that uh, you'd like to talk to us, matter of fact requested to talk to one of the offices and give a statement. Is that right?
" A. Yeh.
" Q. Well, Ernie, you're being held here at the Lansing Police Department on an open charge of murder. Uh, do you understand that?
" A. Yeh.
" Q. And that's a result of a shooting incident that took place over on Pine Street and you were arrested for that shooting and * * *.
" A. I came in and turned myself in.
" Q. Yeh. And uh, yes, you did turn yourself in, and since that time, the time of the shooting, you have been informed that she in fact is dead. You understand that?
" A. Yeh."
There is no question in this case but that at around 6:30 p.m. defendant refused to answer any further questions until he had consulted with counsel. Prior to that time he had specifically asked to speak to Detective Lawson who was not available. Later on, around 9:45 p.m., he again asked to speak to Detective Lawson. Lawson arrived around 10 p.m. and defendant stated he still wanted to talk to him after he was informed Lawson was present. The excerpts of the transcript recited above in this opinion indicate that he once again was advised of his rights and acknowledged that he requested to speak to Lawson.
In Miranda v Arizona, the Supreme Court held:
"If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have the opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent." Id., 474.
This holding does not mean, however, that an individual cannot subsequently waive his right to counsel. Indeed, the Court stated:
"If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. * * *
"An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver." Id., 475.
The rule governing waiver of the right to counsel was further elaborated upon in Edwards v Arizona, 451 U.S. 477, 484-485; 101 S Ct 1880; 68 L Ed 2d 378 (1981):
"We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, 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."
The Michigan Supreme Court has interpreted Edwards as not announcing new law but only clarifying existing rules of interrogation procedure. People v Paintman, 412 Mich. 518, 530; 315 N.W.2d 418 (1982). Indeed, the Court stated:
"The Edwards Court did not hold that once an accused has asked for counsel the right cannot be abandoned without an attorney first being involved, nor do we. What we do hold is that the Fifth and Fourteenth Amendments require a clear demonstration of waiver." Paintman, supra, 528.
We are satisfied that the facts in the instant case satisfy the mandates of Edwards, supra, and Paintman, supra. The burden here was on the prosecution to demonstrate that defendant knowingly and intelligently waived his privilege against self-incrimination and his right to counsel at the 10:30 p.m. interview and that it was voluntary. It is quite clear from the beginning when defendant entered the police station that he wanted to talk to Lawson because they were longtime acquaintances. He again made the request at 9:45 p.m. The record recites that he once again was advised of his rights and desired to make a statement. The Michigan Supreme Court made it clear in People v Paintman, supra, 528, that a defendant having once requested counsel could abandon that right later and be questioned. The burden, as previously stated, is on the prosecution to show, however, that the waiver not only was voluntary, but knowingly and intelligently made. A valid waiver cannot be established merely by showing that an accused who asked for an attorney responded to further custodial interrogation initiated by police officers. That is not the situation in this case. Defendant's request once again around 9:45 p.m. to talk to Lawson and having been advised of his rights again satisfies the prosecution's burden of showing in this case that his waiver was voluntary, and knowingly and intelligently made.
The fact that defendant was ill and in need of oxygen does not detract from this finding. The record discloses defendant was calm during the 10:30 p.m. interview and was not in physical difficulties.
Affirmed.
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