People v. Cheatham , 453 Mich. 1 ( 1996 )

Cavanagh, J.

(concurring in part). On the basis of the evidence in the record presented to this Court, I agree with the result reached in regard to the only issue actually before us: whether defendant’s waiver of his Fifth Amendment rights was “knowing and intelligent” and therefore valid. More specifically, I agree with my brother Mallett’s statement that “[t]he trial court did not clearly err in finding that Mr. Cheatham did in fact understand that he could keep silent, that if he did say anything the state could use whatever he said as evidence against him, and that he could have an attorney to represent him.” Post, p 58. In fact, I join in the entirety of Justice Mallett’s opinion, but still must write separately to distance myself from the lead opinion’s unnecessary discussion and decision of issues not actually presented in this appeal.

I

A

The lead opinion notes that “ [defendant claims that his waiver was not knowing and intelligent under both the Fifth Amendment of the United States Constitution and art 1, § 17 of the Michigan Constitution, but does not provide any reason or analysis for a different construction [of art 1, § 17].” Ante, p 10, n 11. Accordingly, the lead opinion’s assertions that “there is no need in this case to construe the protection against self-incrimination found in the Michigan Constitution differently from the identical federal guarantee,” and that “[o]n the facts of this case, if defendant’s Fifth Amendment right to be free from compelled self-incrimination was not violated, neither was a corresponding right under art 1, § 17 of the Michigan Constitution,” ante, p 10, are mere dicta and have no precedential authority for future cases. See Goolsby v Detroit, 419 Mich 651, 655, n 1; 358 NW2d 856 (1984).

Furthermore, the lead opinion’s attempt to immutably link our interpretation of the Michigan Constitution to the United States Supreme Court’s interpretation of analogous provisions of the federal constitution is, as a general rule, wholly unsupported by our case law. See People v Bender and Ziegler, 452 Mich 594, 613, n 17; 551 NW2d 71 (1996).

B

Also unnecessary to the analysis of this case is the lead opinion’s discussion of the voluntariness prong of a Miranda waiver analysis. The lead opinion concedes, as it must, that “[tjhere is no dispute that the waiver was voluntary,” ante, p 5, but then includes a tendentious survey of cases involving the voluntariness prong, ultimately conflating this prong with the “knowing and intelligent” prong.

The lead opinion acknowledges that “[a]s noted in Miranda [v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966)], clarified in Moran [v Burbine, 475 US 412; 106 S Ct 1135; 89 L Ed 2d 410 (1986)], and reaffirmed in Colorado v Spring, 479 US 564, 573; 107 S Ct 851; 93 L Ed 2d 954 (1987), whether a ‘waiver is coerced “has two distinct dimensions.” ’ ” Ante, p 14. Then, however, this “reaffirm [ation] ” is, according to the author of the lead opinion, magically transformed into dicta because the United States Supreme Court in Spring ultimately held that

“[i]n this case there is no allegation that Spring failed to understand the basic privilege guaranteed by the Fifth Amendment. Nor is there any allegation that he misunderstood the consequences of speaking freely to the law enforcement officials.” [Ante, p 18, quoting Spring, 479 US 575.]

Just because the Court in Spring concluded that the defendant’s waiver was valid because it was knowing and intelligent certainly does not mean that the Court’s enunciation of the relevant standard for making that determination is dicta. Quite the contrary, definition of the relevant standard of review before applying that standard to the facts of a case is an integral part of any competent appellate opinion, and certainly is part of the holding.

c

Limiting the constitutional protection served by the knowing and intelligent prong by superimposing Connelly's¹ requirement of coercive police conduct before a waiver is found involuntary, the lead opinion muses that “given the incongruity between the clear language and logic of Connelly and the dicta in Spring, courts have been left to question whether the knowing and intelligent prong of the waiver analysis is a wholly subjective inquiry that focuses only on the suspect’s post hoc claims regarding the warnings.” Ante, p 19. Although ultimately “reject[ing] the prosecutor’s position that Connelly limited the entire waiver analysis — both the voluntary and knowing and intelligent prongs — to a wholly objective inquiry that focuses only on police behavior,” ante, p 26, the lead opinion relies on selective citations of federal circuit court opinions to posit an alleged “inconsistency” between Connelly and Spring. In fact, this inconsistency does not exist.

In Miller v Dugger, 838 F2d 1530, 1535 (CA 11, 1988), the court stated: “It is now clear, however, that the requirements of Miranda's prophylactic rules can diverge significantly from the force of the prohibition in the due process clause itself against the introduction of involuntary statements.” This divergence is clear, of course, because Miranda is the case in which the “knowing and intelligent” prong of a waiver analysis was enunciated. “The prohibition against the introduction of involuntary statements long predates Miranda, and Miranda was not the first case in which the Supreme Court imposed rules on state courts to protect against the use of involuntary confessions.” 838 F2d 1535. Miranda explained that effectuation of a suspect’s right to “be warned 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” may be waived “provided the waiver is made voluntarily, knowingly and intelligently.” 384 US 444.

The United States Court of Appeals for the Eleventh Circuit noted that “the Supreme Court in Connelly explained that ‘voluntariness’ in the context of a Miranda waiver means the same thing as ‘voluntariness’ in the due process context, i.e., freedom from official coercion .... The Supreme Court has stated explicitly, however, that a valid waiver of Miranda rights must not only be voluntary; it must also be intelligently made.” 838 F2d 1538 (emphasis in original). The Eleventh Circuit relied on a pre-Connelly case, Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981), as evidence of the irrefutably distinct prongs of a waiver inquiry: “The Supreme Court could not have stated more clearly that an uncounselled statement must be both voluntary and made after a knowing and intelligent waiver of the Miranda rights to be admissible.” 838 F2d 1538 (citing Edwards, 451 US 483-484). The court ended its discussion of Connelly as follows: “We do not read the Connelly decision as demonstrating an intent by the Supreme Court to eliminate this distinction between voluntariness and knowing waivers.” 838 F2d 1539. “The question of whether Connelly had intelligently waived his Miranda rights was not presented to the Supreme Court.” Id. (emphasis in original).

In Derrick v Peterson, 924 F2d 813, 820 (CA 9, 1990), the court, in a poorly reasoned opinion, selectively cited Connelly:

While Connelly clearly holds that the “voluntariness” inquiry in the Miranda waiver context is equivalent to the voluntariness inquiry under the fourteenth amendment, it is not as clear whether an inspection of the “knowing” and “intelligent” prong of the Miranda waiver analysis is likewise rendered unnecessary by a conclusion that a confession is voluntary under the fourteenth amendment. That is the burden of our next inquiry.

The Derrick court then finally acknowledged:

Whatever doubt remained after Connelly concerning the distinct nature of the knowing and intelligent prong of the waiver inquiry was removed by the Court’s decision in Colorado v Spring . . . later that same term.

Thus, in light of Spring, it is clear that, although a determination of voluntariness under the fourteenth amendment forecloses a similar inquiry in the Miranda waiver context, we must conduct a separate review of whether Derrick knowingly and intelligently waived his Miranda rights. [Id. ]

And in United States v Bradshaw, 290 US App DC 129, 134; 935 F2d 295, 302 (1991), yet another federal appellate court acknowledged the irrefutable distinctness of the two prongs of a Miranda waiver analysis: “But any doubts we might have concerning Connelly’s reach dissipate in light of the Court’s subsequent decision in Colorado v Spring . . . .”² “We agree with the Ninth Circuit that this statement dispels any notion that a Miranda waiver must be caused by police misconduct to be deemed non-knowing.” Id. (citing Derrick v Peterson and Miller v Dugger).

An attentive reading of Connelly shows that the Court was concerned solely with the voluntariness prong of a Miranda waiver. Keeping in mind that fact, and the fact that Connelly was decided after Fare v Michael C, 442 US 707; 99 S Ct 2560; 61 L Ed 2d 197 (1979), Edwards v Arizona, and Moran v Burbine, supra (among others, all of which unequivocally posit the discrete nature of the voluntariness inquiry from the knowing and intelligent inquiry), creating an “apparent inconsistency between the voluntary and knowing and intelligent prongs of the waiver analysis,” ante, p 26, is an indefensible position. And more importantly, even if there were an arguable inconsistency or tension between the analysis of the voluntariness prong and the analysis of the knowing and intelligent prong, we would still be obligated to apply the unambiguous dictate of Colorado v Spring, which “dispels any notion that a Miranda waiver must be caused by police misconduct to be deemed non-knowing.” Bradshaw, supra at 134. However, I can find no such inconsistency or tension.

Before discussing the self-imposed confusion evidenced by portions of the Derrick and Bradshaw opinions,³ I would point out that it is logically inconsistent to even attempt to apply the notion of police coercion to an inquiry of what a suspect understood. “Coerce” means “to force; compel; to effect by force.” Webster’s New World Dictionary. It is obvious, then, that “coerced” is an antonym of “voluntary” (and, of course, a synonym of “involuntary”). The relevance of coercion to a voluntariness inquiry is obvious and unmistakable. However, the concept of coercion or compulsion bears no relation, logically or otherwise, to a suspect’s level of comprehension of the rights at issue. But, having said that, let us go on to examine the “logic” that led the Derrick and Bradshaw panels to see tension where none exists.

The lead opinion states:

In addressing Derrick’s claim that his waiver was not knowing and voluntary, the court examined the United States Supreme Court’s decision in Connelly and stated:

“While Connelly clearly holds that the ‘voluntariness’ inquiry in the Miranda waiver context is equivalent to the voluntariness inquiry under the fourteenth amendment, it is not as clear whether an inspection of the ‘knowing’ and ‘intelligent’ prong of the Miranda waiver analysis is likewise rendered unnecessary by a conclusion that a confession is voluntary under the fourteenth amendment.” [924 F2d 820.]

After noting the Supreme Court’s citation in Spring of the waiver standard articulated in Moran, the court concluded that, “although a determination of voluntariness under the fourteenth amendment forecloses a similar inquiry in the Miranda waiver context, we must conduct a separate review of whether Derrick knowingly and intelligently waived his Miranda rights.” Id. [Ante, pp 23-24.]

In fact, after quoting the excerpt from Spring — an excerpt that itself relies on quotations from the pre-Connelly opinions in Moran v Burbine and Fare v Michael C — what the Derrick court actually said was: “ Thus, in light of Spring, it is clear that, although a determination of voluntariness under the fourteenth amendment forecloses a similar inquiry in the Miranda waiver context, we must conduct a separate review of whether Derrick knowingly and intelligently waived his Miranda rights.” 924 F2d 820 (emphasis added).⁴

The lead opinion also states: “The Derrick court readily acknowledged, however, that such a result ‘as a matter of logic’ is unsatisfactory.” Ante, p 24. “[R]eadily acknowledged” is a risibly self-indulgent characterization; rather, the Derrick court gratuitously and, I suggest, erroneously theorized:

As a matter of logic this result is somewhat unsatisfactory. On the one hand, Connelly emphasizes that “mere examination of the confessant’s state of mind can never conclude the due process inquiry.” 479 US 165 .... Yet, in the Miranda context, the Court allows a waiver to be invalidated based only upon the confessant’s state of mind- — i.e. based only upon whether the waiver is knowing and intelligent. See Spring, 479 US 573 .... Thus, the Court requires that there be improper state action under the fourteenth amendment before a confession can be suppressed, but requires no such state action in the Miranda context, even though the constitutional provision underlying the Miranda warning- — the fifth amendment — is applied to the states through that same fourteenth amendment .... See Malloy v Hogan, 378 US 1, 8; 84 S Ct 1489; 12 L Ed 2d 653 (1964) (incorporating fifth amendment’s self-incrimination clause). [924 F2d 820-821.]

The error in this analysis results from the court’s fallacious assumption of a complete unity between the determinative factors of the pre-Miranda Fourteenth Amendment due process analysis (which was concerned solely with coercive police conduct that affected the voluntariness of a suspect’s confession)⁵ and the post-Miranda waiver analysis (which requires analysis of two distinct prongs, only one of which— i.e., voluntariness — is logically, or in any other respect, related to coercive police practices). The Derrick court appears confused when it says that “the [Supreme] Court requires that there be improper state action under the Fourteenth Amendment before a confession can be suppressed, but requires no such state action in the Miranda context . . . .” 924 F2d 821. In Connelly, wherein the Supreme Court reviewed the holding of the Colorado Supreme Court that Connelly’s confession was involuntary under both the Fourteenth Amendment Due Process Clause and Miranda, the Court held that “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of thé Fourteenth Amendment,” 479 US 167, and that “[t]here is obviously no reason to require more in the way of a ‘voluntariness’ inquiry in the Miranda waiver context than in the Fourteenth Amendment confession context.” Id. at 169-170. Unmistakably, then, coercive police conduct is as necessary to a finding of involuntariness under Miranda as it is under the substantive protection of the Fourteenth Amendment Due Process Clause. It is only with respect to the completely distinct “knowing and intelligent” prong of a Miranda waiver analysis— a prong never considered under the pre-Miranda due process analysis — that coercive police conduct is not required, either by logic or by law.

That brings me to the final aspect of the Derrick court’s fabrication of a logical inconsistency: the notion that Miranda should be no more protective of a suspect’s rights than is the Fourteenth Amendment Due Process Clause because that clause is the vehicle by which the protections of the Fifth Amendment are applicable to the states. Derrick, 924 F2d 821. The refutation of that assertion is not difficult.

Before the Fifth Amendment was incorporated into the Fourteenth, the only substantive protection afforded by the Fourteenth Amendment was the prohibition against coercive police conduct that rendered a suspect’s confession (or other statement) involuntary and therefore inadmissible. But ever since Miranda, the Self-Incrimination Clause of the Fifth Amendment, which was incoiporated into the Fourteenth Amendment in Malloy v Hogan, supra, has been understood to require that a suspect’s decision to waive his Fifth Amendment rights be both “voluntary” and “knowing and intelligent.” As should be obvious, then, the substantive content of, and the substantive protections afforded by, the Fourteenth Amendment are greater after incorporation than they were before.

D

The lead opinion also mischaracterizes the relevant case law with regard to the specific issue of police conduct. It acknowledges that coercive police conduct is not a prerequisite for finding a Miranda waiver invalid under the knowing and intelligent prong, and therefore concludes that the knowing and intelligent prong requires a purely “subjective inquiry.” Ante, p 26. This is not completely accurate.

Both prongs must be analyzed under the “totality of the circumstances surrounding the interrogation,” and therefore any relevant police conduct would be equally applicable. The only clear-cut difference is that coercive police conduct is a sine qua non for a judicial finding of involuntariness; coercive conduct is only relevant to the concept of voluntariness. There is no requirement for evidence of police conduct of any particular sort to find a waiver invalid under the knowing and intelligent prong, but any police conduct that could have an effect on a suspect’s requisite level of comprehension must be factored into the analysis. This, too, was clear before Connelly and Spring.

In Moran v Burbine, the defendant argued that his “confessions must be suppressed because the police’s failure to inform him of the attorney’s telephone call deprived him of information essential to his ability to knowingly waive his Fifth Amendment rights.” 475 US 421. In finding that the police’s failure to inform the defendant of an attorney’s attempt to contact him did not affect the defendant’s “full awareness and comprehension of all the information Miranda requires the police to convey,” the Supreme Court stated: “Granting that the ‘deliberate or reckless’ withholding of information is objectionable as a matter of ethics, such conduct is only relevant to the constitutional validity of a waiver if it deprives a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” Id., pp 423-424. And although Miranda originally required that suspects be given the specific warnings enunciated in that opinion, the Supreme Court has since held that the standard Miranda warnings are not constitutionally required. The initial judicial focus under the knowing and intelligent prong in such cases, therefore, is what information was (or was not) conveyed to the suspect, and how that information affected the suspect’s comprehension of the guarantees of the Fifth Amendment. See Oregon v Elstad, 470 US 298; 105 S Ct 1285; 84 L Ed 2d 222 (1985); New York v Quarles, 467 US 649; 104 S Ct 2626; 81 L Ed 2d 550 (1984); Michigan v Tucker, 417 US 433; 94 S Ct 2357; 41 L Ed 2d 182 (1974). Though the ultimate focus for purposes of the knowing and intelligent prong remains on the level of the suspect’s comprehension, it is clear that police conduct can be relevant, except, of course, coercive police conduct, which is logically and lexically unrelated to analysis of a suspect’s comprehension.

E

The lead opinion also attempts to link the analyses of Connelly and Spring by focusing on the exclusionary rule. As a threshold matter, I would point out that any discussion of the exclusionary rule is unrelated to the actual case before us, and therefore mere dicta. The judgment in this case is that defendant’s waiver was valid; obviously, then, the issue of exclusion is in no way implicated.

The lead opinion relies on the following excerpt from Bradshaw:

“To be sure, some of the reasoning in the section of Connelly dealing with the due process voluntariness standard could be applicable to our case as well. The Court, for example, observed that evidence should not be excluded unless suppression would deter future constitutional violations, see [479 US 166], Since the police may not know whether an individual does not or cannot understand Miranda warnings (the government claims here that the police were not aware of Bradshaw’s illness), an argument could be made that in those circumstances, deterrence is inapposite.” [Ante, p 25 (emphasis added) (quoting Bradshaw, 290 US App DC 133; 935 F2d 299).]

First of all, this excerpt immediately follows the Bradshaw court’s explicit acknowledgment of its understanding that police coercion is not and cannot be the focus of judicial inquiry under the knowing and intelligent prong. That by itself evidences the improbity of the lead opinion’s reading of that case. But even more important is the obvious fact that deterrence of coercive police conduct is by definition inapposite to whether a Miranda waiver was invalid because it was not knowing and intelligent; this is a mere truism. However, if a suspect’s Miranda waiver was not knowing and intelligent because of police conduct that “deprive [d] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them,” Moran v Burbine, 475 US 424, then deterrence would be directly apposite. And the most important fact in this regard is that deterrence is not the overarching consideration: the protection and vindication of constitutional rights is.

n

In sum, then, I join only the following parts of the lead opinion: I; iv(a), (b), (c) (except for the two references to the elements of a knowing and intelligent waiver “under Moran" ante, pp 30, 34; the relevant case in this regard is Spring, not Moran), (e); and v.

1 Colorado v Connelly, 479 US 157; 107 S Ct 515; 93 L Ed 2d 473 (1986).

2 The District of Columbia Circuit quoted the same excerpt from Spring as did the Ninth Circuit in Derrick, an excerpt in which the United States Supreme Court clearly demonstrated, by quoting from Moran v Burbine and Fare v Michael C, 442 US 707; 99 S Ct 2560; 61 L Ed 2d 197 (1979), that it was not enunciating for the first time the two distinct dimensions of a Miranda waiver.

3 Actually, as I subsequently discuss, the confusion was engendered by the Derrick court; the Bradshaw court uncritically parroted the Derrick court’s confusion.

4 And in eventually conceding that the bifurcated inquiry is mandated by binding United States Supreme Court case law, the Derrick court expressly acknowledged “that we are obligated to bifurcate the Miranda waiver analysis . . . .” 924 F2d 821 (emphasis added).

5 In Connelly, the Supreme Court explained that “coercive government misconduct was the catalyst for this Court’s seminal confession case, Brown v Mississippi, 297 US 278 [56 S Ct 461; 80 L Ed 682] (1936).” 479 US 163. In Brown, “police officers extracted confessions from the accused through brutal torture.” Id. In addition to the pre-Miranda cases cited in Connelly, 479 US 163, n 1, see Haynes v Washington, 373 US 503; 83 S Ct 1336; 10 L Ed 2d 513 (1963); Lynumn v Illinois, 372 US 528; 83 S Ct 917; 9 L Ed 2d 922 (1963); Townsend v Sain, 372 US 293; 83 S Ct 745; 9 L Ed 2d 770 (1963); Rogers v Richmond, 365 US 534; 81 S Ct 735; 5 L Ed 2d 760 (1961); Blackburn v Alabama, 361 US 199; 80 S Ct 274; 4 L Ed 2d 242 (1960); Spano v New York, 360 US 315; 79 S Ct 1202; 3 L Ed 2d 1265 (1959); Watts v Indiana, 338 US 49; 69 S Ct 1347; 93 L Ed 1801 (1949); Turner v Pennsylvania, 338 US 62; 69 S Ct 1352; 93 L Ed 1810 (1949); Harris v South Carolina, 338 US 68; 69 S Ct 1354; 93 L Ed 1815 (1949); Malinski v New York, 324 US 401; 65 S Ct 781; 89 L Ed 1029 (1945); Ward v Texas, 316 US 547; 62 S Ct 1139; 86 L Ed 1663 (1942).