People v. Young , 212 Mich. App. 630 ( 1995 )

O’Connell, P.J.

Defendant appeals as of right his bench trial convictions of second-degree murder, MCL 750.317; MSA 28.549, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to twelve to thirty years’ and two years’ imprisonment, respectively. We affirm.

On September 7, 1991, at the corner of Balfour and Haverhill Streets in the City of Detroit, James Curenton (also referred to as James Cureton) was shot to death by a masked gunman. Dondrea Smith, a witness to the shooting, later testified that, immediately before the incident, she saw a man wearing a ski mask and jogging pants emerge from a nearby alley carrying a gun. The gunman began shooting, whereupon Smith and her friends scattered. However, Smith testified that she saw the gunman chase Curenton, throw him to the ground, and take his jewelry before running away.

Initially, Smith was unable to identify definitively the gunman because of the ski mask and the twilight conditions. Indeed, Smith and her associates at first believed that a person named Deray Dixon had committed the shooting, and they began to lay plans to retaliate. The conspiracy was abandoned, however, when the group acknowledged that none of them could, with confidence, identify Dixon as the shooter.

Smith’s identification of defendant as the gunman is based on a conversation she had with defendant at the Wayne County Jail during which defendant admitted shooting the decedent. This was the only testimony beyond defendant’s subsequent statement to the police that unmistakably linked defendant to the crime. Other witnesses, such as Joseph Broom, could identify the gunman only as a light-skinned African-American. Broom, however, familiar with defendant’s voice, also identified defendant as the perpetrator on the basis of words spoken by the gunman at the time of the incident. .

The officer in charge of the case, Sergeant Lee Caudill of the Detroit Police Department, took a statement from defendant at approximately 6:40 p.m. on September 10, 1991. Defendant admitted that, at the time Curenton was fatally shot, defendant was wearing a gray jogging sweater, red jogging pants, gray Adidas sneakers, and a black ski mask. Defendant told Sergeant Caudill that he had planned to scare Curenton because Curenton owed him $300 and had refused to repay it. Defendant was carrying a sawed-off rifle when he approached Curenton from an alleyway near the intersection. Defendant claimed that Curenton shot at defendant and defendant returned fire, then ran and threw his gun into the alley before going home. Defendant maintained that he took nothing from Curenton.

Defendant also presented an alibi defense, one inconsistent with his prior statement to Sergeant Caudill. Siddiqa Bobo testified that defendant had been at her house on the night in question from 7:40 p.m. until 9:03 p.m. The shooting occurred between 8:30 p.m. and 9:00 p.m.

On appeal, defendant presents a panoply of issues to this Court. He first contends that his statements to Sergeant Caudill were not voluntarily made, and, therefore, should have been held to be inadmissible. Defendant was arrested on the evening of September 9, 1991, and placed in a holding cell for the night. It was later determined that defendant had last eaten a meal at approximately 3:00 p.m. on the afternoon of September 9, and that he was not fed at the jail on either September 9 or on the morning of September 10. Defendant also did not sleep well on September 9 because the holding cell had no bed.

On the morning of September 10, defendant was questioned by Sergeant Caudill beginning at 9:20 a.m. for approximately one hour. Defendant signed a waiver at the outset of this interview and initially denied all involvement in the killing of Curenton.

At approximately noon, defendant requested food and was given a soft drink and snack cake. At 2:00 p.m., defendant was taken to the police crime laboratory for the administration of a polygraph examination. While the examination was being conducted, Sergeant Caudill received a telephone call indicating that defendant’s family had retained an attorney who was at the police station requesting an opportunity to meet his client. Defendant was not notified of this fact and the polygraph examination continued.

At the conclusion of the examination, defendant was questioned by Sergeant Caudill, who believed defendant to be lying. This questioning lasted approximately forty minutes, following which defendant made the previously noted admissions concerning his presence at the scene, his attire (which corresponded to the description given by witnesses), and the fact that he had armed himself, sought out Curenton, and fired his weapon at Curenton. After defendant’s statement was reduced to writing, defendant refused to sign it without consulting an attorney.

Defendant raised the issue of the voluntariness of his statement before the trial court, which, after reviewing a videotape of the entire interview between Sergeant Caudill and defendant, concluded that, under the totality of the circumstances, defendant’s statement was voluntary. The court further found that the failure to inform defendant that an attorney had attempted to contact him did not render his statement involuntary. Accordingly, defendant’s motion to suppress was denied.

Our review of the issue of voluntariness is required to be independent of that of the trial court. People v Robinson, 386 Mich 551, 558; 194 NW2d 709 (1972). However, to the extent that resolution of the disputed factual questions turns on the credibility of witnesses or the weight of the evidence, this Court will ordinarily defer to the trial court, which has a superior opportunity to evaluate these matters. People v Marshall, 204 Mich App 584; 517 NW2d 554 (1994).

In the present case, while defendant had little in the way of sustenance and was faced with unsatisfactory sleeping accommodations, we deem the trial court’s finding ,of voluntariness to be correct, and affirm it. People v Cipriano, 431 Mich 315, 334; 429 NW2d 781 (1988). Defendant’s failure to eat after 3:00 p.m. on the day of his arrest is, in large part, attributable to defendant’s own eating habits, since he was not arrested until some time after 9:00 p.m. that evening. While he was not provided breakfast, he was given a snack and drink the first and only time he complained about being hungry. With respect to defendant’s poor sleep the night before the polygraph examination, this may be as much attributable to natural apprehension as to the quality of the accommodations. It would seem far stranger had defendant claimed to have enjoyed a restful night of sleep given that he was confined to a police holding cell under suspicion of murder. In any event, nothing in the record suggests that defendant’s ultimate admissions were the product of deliberate sleep deprivation or intentional police attrition.

The totality of the circumstances suggests, rather, that defendant attempted to falsely deny involvement in the crime, and voluntarily submitted to a polygraph examination as a means of lending credibility to his exculpations. When confronted with suggestions that his performance was unconvincing, he opted to confess, despite full knowledge of his constitutional rights, rather than speak with an attorney. In short, we agree with the trial court’s finding that defendant’s statements were voluntary. Cipriano, supra.

Defendant, however, further contends that, because his family had retained counsel, which counsel had attempted to contact defendant, the failure of the police to inform defendant of the attempted communication of the attorney or to interrupt the interrogation process to facilitate defendant’s consultation with counsel, violated his right against self-incrimination. In this regard, defendant’s rights under the Fifth Amendment of the United States Constitution were plainly not violated. Moran v Burbine, 475 US 412; 106 S Ct 1135; 89 L Ed 2d 410 (1986).

The argument is made, however, that Const 1963, art 1, § 17 imposes such requirements independently of the federal constitution. Precisely that issue came before the Michigan Supreme Court in People v Wright, 441 Mich 140; 490 NW2d 351 (1992), under facts remarkably similar to those of the present case. However, although four of the seven justices participating in the Wright decision concurred in suppressing the defendant’s statement, there was no majority opinion. Three separate legal bases were proffered for the result obtained. Thus, under familiar principles, the Wright decision did not produce an opinion binding under the doctrine of stare decisis. People v Jackson, 390 Mich 621; 212 NW2d 918 (1973); In re Curzenski’s Estate, 384 Mich 334; 183 NW2d 220 (1971).

Justice Mallett’s opinion in Wright would have created a rule per se requiring the police to disclose a retained attorney’s attempts to contact a suspect. The failure of the police to provide such notification would render a subsequent statement inadmissible as an unknowing and, hence, involuntary, waiver of Miranda¹ rights. Significantly, in broadly construing Const 1963, art 1, § 17, Justice Mallett was joined only by Justice Levin, with Chief Justice Cavanagh, in his concurring opinion, expressing agreement "with it as far as it goes.”, Wright, supra, pp 155-156. Three of seven justices adopted Justice Mallett’s reasoning.

After Wright, a panel of this Court in People v Brown, 206 Mich App 535; 522 NW2d 888 (1994), ruled that the failure of police officers to inform an arrestee of an attorney’s attempts to contact him did not violate the privilege against self-incrimination guaranteed by Const 1963, art 1, § 17. Brown, however, was without precedential value with respect to other panels of this Court pursuant to Supreme Court Administrative Order No. 1994-4 because the lead opinion of Brown was signed by only one judge, with one judge concurring in the result only and one judge dissenting. See Fogarty v Dep’t of Transportation, 200 Mich App 572, 574-575; 504 NW2d 710 (1993).

A month later, this Court was again faced with a similar situation in People v Armstrong, 207 Mich App 211; 523 NW2d 878 (1994). In Armstrong, the trial court interpreted Wright as requiring the suppression of statements obtained from a defendant where the defendant had not been informed that an attorney had attempted to contact him, that is, the trial court applied the analysis of Justice Mallett, discussed above. This Court reversed, holding that Justice Mallett’s opinion in Wright could not be considered to be binding precedent where a majority of the Supreme Court justices rejected the reasoning therein contained.² The Armstrong panel then went on to recognize that the totality of the circumstances test first annunciated in Cipriano, supra, remained the law in Michigan. Significantly, Armstrong inarguably constituted binding precedent pursuant to Administrative Order No. 1994-4.

Eighty-six days after the Armstrong decision, a panel of this Court issued its opinion in People v Bender, 208 Mich App 221; 527 NW2d 66 (1994). Bender involved a factual situation similar to that of Wright, Brown, Armstrong, and the present case. The Bender panel explicitly held that Brown did not constitute binding authority and went on to adopt the reasoning of Justice Mallett in Wright, who, to reiterate, would have held that art 1, § 17 requires the police to disclose counsel’s attempts to contact a suspect.

Unfortunately, the Bender panel, in rejecting Brown and adopting Justice Mallett’s opinion in Wright, was, apparently, unaware of this Court’s decision in Armstrong, and did not address it.³ This oversight leaves this Court in a quandary. We have two cases that explicitly conflict with each other — Armstrong rejecting the reasoning of Justice Mallett, Bender embracing it — and both, at first glance, appear to be binding precedent under Administrative Order No. 1994-4. Obviously, we cannot follow both. Neither Administrative Order No. 1994-4 nor any published opinion of this Court or the Supreme Court addresses this dilemma.

Administrative Order No. 1994-4 provides that "[a] panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990,” unless a special panel of this Court is convened pursuant to the administrative order, or the Supreme Court reverses or modifies such opinion. Before Administrative Order No. 1990-6, the predecessor of Administrative Order No. 1994-4, panels of this Court were not obligated to follow the decisions of previous panels. Barbour v Dep’t of Social Services, 172 Mich App 275, 278; 431 NW2d 482 (1988). Today, however, the only way a conflict could appear is if the second panel ignored Administrative Order No. 1994-4. Accordingly, we hold that under Administrative Order No. 1994-4, a panel that is obligated to follow two conflicting opinions published after November 1, 1990, should follow the first opinion on the issue. Thus, to the extent that Bender conflicts with Armstrong, this panel is obligated to follow Armstrong.

As previously stated, Armstrong stands for the totality of the circumstances test. Having already indicated that, under the totality of the circumstances, defendant Young’s statement to Sergeant Caudill was voluntary, we perceive our inquiry to be at an end. While three justices of the Michigan Supreme Court might support automatic application of art 1, § 17 of the Michigan Constitution of 1963 to suppress defendant’s statements on the ground that Sergeant Caudill did not inform him of his attorney’s attempts to make contact during the interrogation session, an equal number of justices would adhere to the contrary holding in Moran, supra. What we distill from Wright⁴ is that a majority of the Court adheres to the totality of the circumstances test established in Cipriano, supra, and, applying that test to the facts of this case, we fail to find that defendant’s confession was involuntary. Armstrong, supra, p 215. Accordingly, the trial court properly denied defendant’s motion to suppress, and his statements were admissible and were properly considered by the trier of fact.

For the reason stated above, we decline to follow Bender. However, were we persuaded both that Bender constituted procedurally binding precedent and that it reflected a valid interpretation of Michigan law, we would not find it to be controlling under the facts of the present case.

In Bender, two defendants were arrested by police in the early morning hours of August 2, 1991. The families of each contacted attorneys very soon after each was apprehended. At 7:15 a.m., the mother of defendant Zeigler attempted to convey to her son a message from the attorney with whom she had spoken. However, the police did not allow her to speak to her son and refused to pass on the message. At 9:00 a.m., the attorney retained by the family of defendant Bender called the police station and asked to speak to defendant Bender. She was told that Bender’s paperwork had not yet come up and that her message would be conveyed to Bender and the detective interviewing him.

Each defendant executed a written Miranda waiver between approximately 9:10 a.m. and 9:50 a.m., with neither being aware of the prior actions of the attorneys. Shortly thereafter, each made self-incriminating statements to law enforcement officers.

We find to be of crucial significance in Bender the fact that each defendant waived his right to counsel by signing a Miranda warnings form after law enforcement officials failed to convey information from attorneys retained on their behalves. In contrast, in the present case, defendant Young signed a written waiver approximately five hours before any attempted contact by an attorney retained on his behalf. Quite simply, nothing was withheld from defendant; one cannot reasonably argue that his waiver was not knowing and intelligent. Accord Brown, supra, p 537. While the law countenances the imputation of knowledge under certain circumstances, extending the fiction to the retrospective imputation of ignorance is patently untenable.

Therefore, were we to consider the applicability of the Bender decision to the present case, we would distinguish it on this basis. We would ascribe substantially less weight to the failure of the police to inform defendant of the attempted contact of an attorney where that attempted contact occurred after the execution of a written waiver. Again, considering the totality of the circumstances, Cipriano, supra, we would find defendant’s statements knowing, voluntary, and admissible.

Having discussed defendant’s one argument on appeal that warrants extended treatment, we now address defendant’s remaining contentions seriatim, and conclude that each is without merit. Defendant, by failing to raise the issue below, has failed to preserve for review the issue regarding the legality of his arrest. People v Van Sickle, 116 Mich App 632, 637; 323 NW2d 314 (1982). Further, our review of the record indicates that probable cause to arrest defendant existed. See People v Turner, 155 Mich App 222, 226-227; 399 NW2d 477 (1986). Similarly, by failing to move below for an evidentiary hearing regarding alleged ineffective assistance of counsel, defendant has limited our review to deficiencies apparent on the record. People v Harris, 201 Mich App 147, 154; 505 NW2d 889 (1993). We find none.

Defendant also argues that he is entitled to a new' trial where the court refused to strike testimony admitted into evidence in violation of a discovery order. We find no abuse of discretion, People v Taylor, 159 Mich App 468, 471-472; 406 NW2d 859 (1987), where, although the prosecution did not inform defendant of the nature of certain testimony before trial, the prosecution learned that the witness would so testify only minutes before the witness was called to the stand, and, in .any event, defendant had independent knowledge of the nature of the disputed testimony because it concerned his admission to the witness that he had killed the decedent.

Finally, the record discloses that defendant knowingly and voluntarily waived his right to a trial by jury. See MCR 6.402(B); People v Shields, 200 Mich App 554, 560-561; 504 NW2d 711 (1993).

Affirmed.

N. O. Holowka, J., concurred.

1 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

2 Although the panel in Armstrong construed Chief Justice Cavanagh’s opinion as rejecting Justice Mallett’s approach, we believe this to be incorrect. Chief Justice Cavanagh stated:

I believe that [Justice Mallett’s] analytical approach ... is entirely supportable, and I agree with it as far as it goes. I write separately, however, to express my view that my colleague’s conclusion is even more clearly supported on the ground that the police conduct in this case violated the defendant’s right to counsel under Const 1963, art 1, § 20. [Wright, supra, pp 155-156.]

Clearly, the language employed indicates that Chief Justice Cavanagh considered both Const 1963, art 1, § 17 and § 20 to be legitimate, independent grounds for suppressing the statements then in issue.

3 In defense of the Bender panel, it is likely that the Bender opinion was written before the issuance of Armstrong. Because of the delays inherent to our internal procedures concerning circulation of proposed opinions, three-month delays between the initial submission of an opinion and its publication are not uncommon.

4 In fact, where a particular view is expressed by a minority of Supreme Court justices, which view embodies the essence of their opinions, as opposed to mere obiter dicta, and four or more justices decline to adopt that view, the better approach would appear to be to infer that, whatever the state of the law, it is definitely not that endorsed by the minority.