People v. Lewis ( 1973 )

47 Mich. App. 450 (1973) 209 N.W.2d 450

PEOPLE
v.
LEWIS

Docket No. 14345.

Michigan Court of Appeals.

Decided May 24, 1973.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and William C. Buhl, Prosecuting Attorney, for the people.

Joseph J. Jerkins, for defendant.

Before: HOLBROOK, P.J., and T.M. BURNS and CHURCHILL,^[*] JJ.

T.M. BURNS, J.

Defendant was convicted by a jury of breaking and entering with intent to commit a larceny. MCLA 750.110; MSA 28.305. He was sentenced to from 1-1/2 to 10 years imprisonment and appeals.

At approximately 2 a.m. on September 18, 1971, the defendant was arrested at the scene of a breaking and entering. Defendant was 17 years old and had a tenth grade education. He was conveyed to the State Police post in Paw Paw, Michigan, where after an hour and a half of questioning, he signed an inculpatory statement at 6:30 a.m.

Prior to trial, defense counsel moved to have the statement suppressed from evidence. A Walker hearing was held to determine the voluntariness of the statement. At the hearing defendant took the stand and testified that before the interrogation began he was advised of his constitutional rights, that he asked the officers whether it was possible to obtain an attorney at that hour and that the officers replied it was not possible. Defendant then told the officers to "forget it" and the questioning began. Two police officers who were present when defendant was questioned testified that defendant did not request the assistance of an attorney at any time.

After considering the evidence presented at the Walker hearing, the trial court found that:

"The evidence discloses, there is no question about it, that the defendant was again given all of his constitutional rights. There is no claim that he didn't understand what his rights were. He asked if it were possible to get an attorney at that time, and when told he could not, he said, `Forget it', and went ahead with the statement which certainly indicates a clear waiver of the right to have an attorney present at the time."

Accordingly, the trial court denied defendant's motion to suppress the statement from evidence.^[1] The statement was subsequently admitted into evidence at trial.

In Miranda v Arizona, 384 U.S. 436, 444-445; 86 S. Ct. 1602, 1612; 16 L. Ed. 2d 694, 706-707 (1966), the United States Supreme Court held that where, as here, a person has been taken into custody:

"Prior to any questioning, the person must 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, either retained or appointed."

The Court continued more particularly with respect to the right to counsel:

"The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." (Emphasis supplied.)

Applying the doctrine of Miranda to the case at hand, it is readily apparent that the defendant, by inquiring as to whether it was possible to obtain an attorney at that early hour, sufficiently indicated a desire to consult an attorney before speaking. We are not unmindful that the police may have acted innocently by stating that an attorney was not available at that time of the day. Nonetheless, the police were not free to ignore the letter and spirit of Miranda, and the questioning should have ceased until such time as counsel could have been secured on behalf of the defendant. It was only after the defendant was told counsel could not be obtained that he told the officers to "forget it" and began to answer the questions which lead to his incriminating statement. It is our opinion that under these circumstances defendant's statement to "forget it" did not constitute a voluntary, knowing, and intelligent waiver of the right to counsel.

In view of the foregoing, we hold that the failure to obtain counsel for the defendant after a sufficient request therefor operated to deny the defendant his right to counsel and clearly rendered the inculpatory statement involuntary. Therefore, it was reversible error to admit the statement into evidence at trial.

In addition an accomplice, whose name was indorsed on the information, was called to the stand by the prosecution. Over objection by defense counsel, a confession of the accomplice was admitted into evidence and used by the prosecutor to impeach the witness by showing prior inconsistent statements. This was error.

Although the prosecutor is not required to indorse the name of an accomplice on the information, we have held that once an accomplice is so indorsed, the accomplice may not be impeached by prior inconsistent statements. People v Fidel, 37 Mich. App. 338 (1971).

For the reasons delineated above, defendant's conviction is reversed and this case is remanded for a new trial.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] The trial court did suppress those portions of the statement referring to the possession of marijuana since the charge was dismissed.