THE MICHIGAN SUPREME COURT ISSUES AN IMPORTANT 5TH AMENDMENT DECISION – CHICANERY IS NOT WELCOME WHEN IT COMES TO SUSPECTS ASSERTING THEIR RIGHTS …
In mid-July, the Michigan Supreme Court (MSC) issued its 2nd opinion within a week that vitalized Michigan’s 5th Amendment jurisprudence. In People v Fenderson, the question is whether police violated defendants Fifth Amendment rights. The context was the Detroit Police Department telling a suspect that “you ain’t got nothin’” when he asked for a court-appointed attorney at public expense to be present during police questioning. However, they confused Mr. Fenderson in thinking that if he could not afford a lawyer – he was stuck without a lawyer. That is simply not true. NLF law clerk Jackson Vukovic helps us out with a write-up and “book brief” on these important cases.
Remember, the 2nd part of the “Miranda” warnings: “if you cannot afford a lawyer – one will be provided to you at public expense” (during questioning by police).
Daren D. Fenderson was bound over to the Wayne County Circuit Court on charges of first-degree premeditated murder, felony-firearm, and escape from lawful custody. The posture of the case is that he brought a motion to suppress incriminating statements that he made while in police custody on the grounds that he did not voluntarily, knowingly, and intelligently waive his Miranda right to counsel.
The Trial Court granted the motion to suppress, the prosecution then appealed to the Court of Appeals. The Court of Appeals reversed the Trial Court’s decision citing that the waiver was made voluntarily and was remanded to the Wayne County Circuit Court for further proceedings.
Mr. Fenderson appealed and was granted leave to appeal by the Michigan Supreme Court, and the Michigan Supreme Court reversed the Court of Appeals, then “remanded” the case to the Wayne County Circuit Court. Remanded means “ordered back” or “sent back” to a prior status by a judge’s order.
This was an investigation into a fatal shooting. In this case, the shooting victim was found pinned between a crashed vehicle and a front porch. After Mr. Fenderson was arrested, police read him his Miranda Rights, but were unable to interrogate him at the time because he was too “intoxicated”.
The following day, Sergeant Beasley and Detective Williams conducted a video-recorded interrogation of Mr. Fenderson while he was in custody still. Beasley provided Miranda warnings and claim that Mr. Fenderson voluntarily signed an advice-of-rights form. After an hour and a half of questioning, Mr. Fenderson invoked his right to counsel.
Sgt. Beasley asked if he had an attorney, but Fenderson indicated that he did not, and that he would need appointed counsel. Mr. Fenderson inquired how long it would take and Beasley said he would “make a couple phone calls” and left the interrogation room leaving Fenderson alone. After 40 minutes Beasley returned and informed him he was “trying to get that attorney”.
Approximately two hours and 45 minutes after Mr. Fenderson invoked his right to counsel, Det Beasley returned, and did not address him or provide any information about his attorney. Beasley was joined by uniform officers who uncuffed Fenderson to then cuff his hand behind his back to take him to Detroit Detention Center. Fenderson was confused why and kept asking where his attorney was, Beasley said if you want to talk to me you have to say you want to talk without an attorney. After a back and forth conversion Fenderson then said he would talk without an attorney.
The cops then left the room and Mr. Fenderson began crying. After a different Sergeant entered the room and began reading Mr. Fenderson his Miranda rights, Mr. Fenderson said “I don’t understand this”. The sergeant then began reading his rights to which Fenderson would have verbal or non-verbal responses. When the Sergeant asked if anyone was forcing or threatening him to make statements, Mr. Fenderson replied “See, that’s what I.. I don’t understand what’s going on”. The Sergeant then asked if Mr. Fenderson wanted to talk to the police and he agreed to do so. Beasley and Williams returned and Mr. Fednerson began making incriminating statements.
Legal Issue
Statements of an accused made during custodial interrogation are inadmissible absent a voluntary, knowing, and intelligent waiver of the accused’s Fifth Amendment rights. Miranda v Arizona, 384 US 436, 444; 86 Ct 1602; 16L Ed 2d 694 (1966); US Const, Am V. “When a suspect has been afforded Miranda warning and affirmatively waives his Miranda rights, subsequent incriminating statements may be used against him” if the waiver was “voluntarily, knowingly, and intelligently” made. Tanner, 496 Mich at 209, quoting Miranda, 384 US at 444. In this case the defendant initially waived his Miranda rights but later asserted his right to appointed counsel. After invocation of the Fifth Amendment right to counsel, questioning of a suspect must cease. Edwards, 451 US at 482; People v Paintman, 412 Mich 518, 527; 315 NW2d 418 (1982).
Statements following the invocation of counsel are admissible only if counsel is made available to the suspect for questioning or if the state shows that the suspect himself reinitiated the investigation. Edwards, 451 US at 484-485. In this case, Mr. Fenderson was never given access to counsel.
Instead, after having Mr. Fenderson wait two and a half hours for an attorney who never came, police engaged in a conversation with him, that the trial court described as a “scare tactic” that undermined the defendant’s assertion of the right to counsel. The police did not err because they failed to provide counsel, the police erred by suggesting that the defendant could not be questioned with an attorney present because he did not have money to hire one. This confusing and inaccurate information undermined the advice of rights previously read to Fenderson. The officers told Mr. Fenderson that they tried to contact an attorney – but apparently they never really did.
Because the officers implied that the right to have an attorney present during questioning was predicated on the ability to pay for an attorney, police in this case violated the defendant’s Fifth Amendment right to counsel under Miranda. Defendant did not reinitiate contact with police because the questions he was asking Beasley were in regards to obtaining his appointed counsel not to reinitiate the interrogation. However the police were the ones who reinitiated the interrogation, because instead of terminating the interrogation as required, police asserted that they were going to provide counsel but then stated that the defendant did not have counsel and implied that counsel would not be provided because he did not have money. This constitutes a failure to scrupulously honor the defendant’s invocation of his right to counsel in violation of Miranda and Edwards. Miranda, 384 US at 480.
The Supreme Court reversed the Court of Appeals decision, ultimately suppressing the incriminating statements made by Mr. Fenderson after his right to counsel was invoked. The case has been remanded back to the trial court for further proceedings. The bottom line: anyone in custody should never speak to the police – especially in a situation involving a death. However, you have the right to speak only with either an attorney who you hire or court-appointed counsel. If the cops claim that they never were able to locate an attorney for you, your response should be “once you find a lawyer for me, then I will answer your questions.”
One week prior to Fenderson, the Michigan Supreme Court issued an opinion in Soriano. This time, the court found that the 5th Amendment was violated by use in court of statements made by Mr. Soriano, when he was in custody and read his Miranda warnings, but he was too high to comprehend them.
It was a case from Northern Michigan, in which a young man who took 6, yes 6 tabs of the psychedelic “LSD” with a platonic female friend.
The pair were at her mother’s house, who let them stay there in November, 2020 after the 2 were required to isolate because they were exposed to COVID-19. Remember, we are still pretty COVID-crazy as a society in the fall, 2020. You surely have not forgotten all those empty sports stadiums during the fall, 2020 and the controversy about letting kids play sports.
Back to Mr. Soriano and his friend, in the midst of this trip that he was on, he got naked from the waist down, jumped on top of her and said “we’re doing this” – ostensibly meaning sex. She pushed him off and he apparently tried to tackle and choke her. The mom awoke and he ran out of the house into the cold November night in Northern Michigan.
When law enforcement caught up to him, they interviewed him about what happened. The mother of Mr. Soriano’s friend called 9-1-1 and reported the assault and his flight. Mr. Soriano was given his “Miranda rights” – which he later claimed he did not comprehend.
Miranda starts with “you have the right to remain silent ….” Why is that? Miranda is a case from 1966, in which the United States Supreme Court recognized that it is an ancient right in the United States to require that the government has to use its evidence and its tools to solve crimes. A citizen cannot be forced to cooperate or speak or testify. It is a concept that separates our system of justice from many others: a citizen is entitled to life, liberty and the pursuit of happiness and cannot be deprived of the same without a process – and that process means it is up to the government to justify the “taking” – whether it is your property or your liberty.
Procedural History:
In the Grand Traverse Circuit Court, Mr. Soriano was found guilty of assault with intent to commit criminal sexual conduct involving sexual penetration MCL 750.520g(1)
Trial Court denied a Motion to Suppress statements elicited following his wavier of Miranda Rights. Following the conviction defendant moved for a new trial or an evidentiary hearing on his claim of ineffective consul. The trtial court denied the motions, but Mr. Soriano appealed to Court of Appeals and the COA affirmed. Mr. Soriano was not done – and he appealed to the Supreme Court.
In the opinion by the Supreme Court, the defendant’s Miranda waiver was not valid because it was not knowing and intelligent: “We reverse the judgment of the Court of Appeals, vacate defendant’s conviction, and remand to the trial court for further proceedings consistent with our opinion.”
Legal Issue:
The Legal issue is whether Mr. Soriano made his wavier of Miranda in a voluntary, knowingly and intelligent way. The Supreme Court found that it was not a valid wavier because of the mental state Mr. Soriano was in. Mr. Soriano was not in a position to make a knowing and intelligent decision because of the LSD he was coming down from, and at the time did not have the capacity to understand his rights and the ramifications of waiving those rights when he was given the warning.
Importantly, The decision made by the Supreme Court does not call into question prior cases addressing the more common situations in which our courts have found a knowing and intelligent waiver for a suspect who was questioned in a non-hospital setting when the police had some indication that the suspect had consumed an intoxicant. But it is based on the totality of the circumstances present at the time of the waiver. The Court said that, because of the impact intoxication may have on a person’s mental state, “[s]pecial care must be taken in assessing a waiver . . . where there is evidence that the defendant was under the influence of alcohol or drugs.” Commonwealth v Silanskas, 433 Mass 678, 685; 746 NE2d 445 (2001) see also State v Gagnon, 139 NH 175, 178; 651 A2d 5 (1994) (“A defendant’s mental and physical conditions are crucial in determining whether a knowing, intelligent, and voluntary waiver has occurred.”)
Outcome:
The case was not dismissed; however, the outcome of the Supreme Court’s decision was that the defendant Mr. Soriano Motion to Suppress is granted. Mr. Soriano is now entitled to a new trial but at that trial, is statements about “I’m a rapist …” will not be used against him by the prosecutor.
The information contained in this web site is neither legal advice nor is it intended to be legal advice. The information contained in this web site is general information designed to give the reader a basic understanding of some legal concepts about what we do in these areas.
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