
    PEOPLE v BRANNAN
    Opinion op the Court
    1. Criminal Law — Confessions—Appeal and Error — Voluntariness — Walker Hearing — Firm Conviction — Mistake.
    An appellate court is required to review the entire record of a Walker hearing and to independently determine the voluntariness of an admitted confession; where the appellate court is left with a definite and firm conviction that a mistake was committed, reversal is required.
    2. Criminal Law — Right to Counsel — Request for Counsel — Questioning — Confession—Evidence—Admissibility.
    There can be no further questioning of a suspect who indicates in any manner and at any stage of the questioning process that he wishes to consult with an attorney; therefore, a confession of murder given by a suspect to police officers who questioned him on two separate occasions after he indicated he wanted to talk to a lawyer was inadmissible in evidence.
    3. Criminal Law — Prosecutors—Statements of Accused — Custodial Interrogation — Procedural Safeguards — Self-Incrimination — Homicide—Miranda Warnings.
    The prosecution may not use statements whether exculpatory or inculpatory stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination; therefore, statements made to police officers investigating a homicide by an individual held in jail on an unrelated charge were inadmissible against him in a trial for the homicide where the investigation of the homicide had clearly focused on the defendant prior to the statements and no Miranda warnings were given.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 440, 441.
    [2] 29 Am Jur 2d, Evidence §§ 523-596.
    [3, 4] 29 Am Jur 2d, Evidence §§ 555-557.
    
      Dissent by D. E. Holbrook, P. J.
    4. Criminal Law — Statements of Accused — Evidence—Focus of Investigation — Miranda Warnings — Clear Error — Appeal and Error.
    
      The admission into evidence of statements made voluntarily by a defendant after the trial court found that the defendant had been given Miranda warnings as soon as the police investigation had narrowed on him was not clearly error and the trial court’s ruling on the admission of such statements should not be disturbed on appeal.
    
    Appeal from Midland, James R. Rood, J.
    Submitted March 3, 1975, at Grand Rapids.
    (Docket No. 17920.)
    Decided September 22, 1975.
    Leave to appeal granted, 395 Mich 812.
    Herbert S. Brannan was convicted of second-degree murder. Defendant appeals.
    Reversed.
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward G. Durance, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Edward R. Wilson, Director, by Lee W Atkinson, Special Assistant Attorney General), for the people.
    
      John A. Lydick, Assistant State Appellate Defender, for defendant.
    Before: D. E. Holbrook, P. J., and Bronson and M. J. Kelly, JJ.
   M. J. Kelly, J.

Defendant was convicted of second-degree murder in the strangulation slaying of one Peggy Ann Smith. Jury verdict was entered on April 30, 1973, and defendant’s appeal of right followed in due course. The appeal cites four instances of allegedly reversible error. We take up only the last claim of error because it requires reversal and the other claimed errors will probably not arise again on retrial.

The body was found on December 1, 1972. Between that date and February 15, 1973, this 17-year old defendant was questioned by the police five times without receiving Miranda, infra, warnings. Three of these sessions took place after the investigation had focused on the defendant. There were two more occasions when the defendant was given Miranda warnings. These sessions took place at the state police post in Bay City, where he had been brought for a polygraph test. On each occasion, that is on the sixth occasion and on the seventh occasion, he confessed.

Prior to trial a Walker hearing was held on a defense motion to suppress confessions obtained after the Miranda warnings were given on February 16, 1973. The trial court held the two confessions admissible on the strength of testimony by the detective in charge that in his opinion the investigation had not focused on the defendant until February 16th. The earlier five interviews were then held to be routine police procedure. The. trial court allowed the confessions in evidence that resulted from interrogations six and seven but it also allowed statements obtained in the earlier interviews.

On review of a Walker hearing an appellate court is required to review the entire record and independently determine voluntariness. People v Robinson, 386 Mich 551; 194 NW2d 709 (1972), People v Inman, 54 Mich App 5; 220 NW2d 165 (1974). We reverse here as "we are left with a definite and firm conviction that a mistake was committed”. People v Scott, 44 Mich App 462; 205 NW2d 291 (1973), People v McGillen #1, 392 Mich 251; 220 NW2d 677 (1974).

The first interview was conducted at the Midland police station when the defendant came to be interviewed in answer to a telephone call from the officer in charge. At that time exculpatory explanations by defendant included a statement that he had been in Tawas for the preceding ten days working on a truck. On later occasions he gave the names of four alibi witnesses to support his story.

On the second occasion, which occurred on January 31, 1973, the defendant was in custody on an unrelated matter. The detective in charge of the Smith murder was also assigned to a theft case which involved a juvenile and he went to the county jail on January 31, 1973, to interview defendant Brannan with regard to the juvenile theft case. Two conversations took place on January 31st. About the first conversation, after the statement was taken concerning the juvenile, the detective testified as follows:

"Q. Was the Peggy Smith matter mentioned that time?
'A. Yes. Just before I left.
"Q. What did you say?
’A. I asked him if he had any other information about the Peggy Smith matter.”

The detective then went on to say that Brannan was not a firm suspect at that time. However, the perspective changed later that day.

The deceased was found with a portion of a clothesline rope around her neck; the local newspaper had printed that "an autopsy report indicates Mrs. Peggy Smith, 35, was — at 707 West Buttel Street, died of strangulation from a clothesline, Prosecutor Edward G. Durant said today”. On the second visit to the defendant of January 31st, the detective went to query defendant about the rope because he had been informed by defendant’s mother that she was missing 50 feet of clothesline rope. Still he did not give Miranda warnings. This is the officer’s testimony:

”Q. What time would be the first time you saw him?
’A. Approximately 8:30, 9 o’clock in the morning.
"Q. And the second time, please, sir?
'A. I think about 2:30 in the afternoon.
”Q. The reason going back the second time?
'A. I had received some information that day.
"Q. Information pertaining to Mr. Brannan?
”A. Yes.
”Q. And pertaining to the Peggy Smith matter?
’A. Yes.
"Q. Information making him a suspect?
’A. Information which I felt checking back with him to see if he could give me any clarification on.
”Q. What did you say to Mr. Brannan when you went in the second time on the 31st, being the third time you talked to him about the Peggy Smith matter, is that correct?
•A. Yes.
”Q. What did you say to him this third time when you went in?
'A. I asked him if he was still willing to take the polygraph.
"Q. And his reply?
’A. He said that he didn’t think he wanted to; that he’d have to check with a lawyer.”

This should have stopped the interrogation forthwith as Miranda requires that if a suspect indicates in any manner and at any stage of the process he wishes to consult with an attorney, there can be no questioning. Miranda v Arizona, 384 US 436, 477; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966), People v Ansley, 18 Mich App 659, 667; 171 NW2d 649 (1969). But even after the red flag was thrown by defendant’s reference to a lawyer the detective persisted:

”Q. All right. Did you say anything else to him?
"A. He was advised of the fact that I had found some rope or had thought I had found where the rope had come from.
“Q. Well, tell me what you told him.
"A. I told him — I told him that I had had a report of some missing rope. I didn’t know whether it tied in or not, but I wanted to talk to him about it.
”Q. Missing rope from who?
'A. From his mother.
”Q. And what else did you tell him?
"A. Nothing. He told me where he had been and who he had been with.
"Q. Had you advised him of his rights at this time?
’A. No.
”Q. This is the third time that he was — talked to you regarding the Peggy Smith matter and you still hadn’t advised him of any kind of rights?
'A. That’s correct.
"Q. Now, the mother told you that she had clothesline rope that was missing, is that correct?
’A. Yes.
"Q. And this clothesline rope, was it similar or dissimilar to the rope that was found around the deceased’s neck?
’A. This I don’t know.
"Q. Well, I am not asking you to speak scientifically. I am merely saying, were they? Did you see the rope around the deceased’s neck?
* * *
”Q. Were you told what kind of rope it was, sir?
"A. I was told, yes.
”Q. And what kind of rope did they tell you?
'A. White cotton clothesline rope.
' Q. And what kind of rope did Mrs. Brannan say was missing?
"A. That is what she said she was missing.
”Q. What is that?
'A. The white cotton or some white cotton clothesline.
"Q. And at this time you knew this. Had you knew that Mr. Brannan knew Mrs. Smith? Is that correct?
"A. Yes.”

Not only did the officer proceed with his questioning on January 31st, but again approximately a week later he went to see defendant again in the county jail:

”Q. And the reason you went to see him this time, sir?
’A. To see what his lawyer had said about a polygraph.
"Q. Did he tell you who his lawyer was?
'A. Yes.
"Q. Who did he say?
'A. Oscar Baker, Jr. I believe.
”Q. And his reply?
’A. He said that his lawyer had told him not to.
”Q. Did you see him again?
'A. Yes.
"Q. And when was this?
’A. On the 15th of February.
"Q. By the way, did you check to see if he really had a lawyer?
’A. On the 15th of February I attempted to, yes.
”Q. All right. Prior to the 15th of February did you check to see if he had a lawyer?
”A. No.”

Again he was questioned and again he was not given the Miranda warnings even though he was in custody, the investigation had clearly focused on him, and in a previous interrogation he had mentioned that he wanted to talk to his lawyer. Furthermore, by this time the detective had done some checking on the alibi and found out it was very questionable:

”Q. Now this would be the fifth time you talked to him. At this time did you advise him of any rights?
"A No.”

It’s true, as the dissent points out, that defendant was taken to Bay City on the 15th to take a polygraph on an unrelated charge. However it’s important to note that the detective in charge of this case traveled to Bay City specifically to talk to defendant about his alibi in this case. He testified that he first attempted to reach Oscar Baker, Jr. at his office but was told by the attorney’s secretary that he was in Midland. The officer then made his trip to Bay City and interrogated defendant anyway.

The fact that a police officer states that the investigation had not focused on the defendant at this time ignores the reality of the situation and strains credulity. The defendant had been an admitted acquaintance of the deceased; he had given a shaky alibi in prior interrogations and his mother was missing the kind of rope the deceased was strangled with. Palm prints of the defendant had been obtained at the scene of the crime. He must have been a prime suspect.

As previously noted, exculpatory statements made by the defendant on January 31st and February 15, 1973, were admitted into evidence. This is also a violation of the letter and spirit of Mi randa. No distinction is made between exculpatory and inculpatory statements in the crucial Miranda language found at 384 US 436, 444; 86 S Ct 1602, 1612; 16 L Ed 2d 694, 706:

"Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.4”

Footnote 4 adds:

"4. This is what we meant in Escobedo [Escobedo v Illinois, 378 US 478; 84 S Ct 1758; 12 L Ed 2d 977 (1964)] when we spoke of an investigation which had focused on an accused.”

The Miranda opinion continues (384 US 436, 477; 86 S Ct 1602, 1629; 16 L Ed 2d 694, 725):

"The principles announced today deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom in any significant way.”

We do not offer any mathematical formula. We do not say that four in-custody interrogations vitiate any subsequent statement or confession obtained following the giving of proper Miranda warnings on a sixth or later occasion. We say only that under the totality of circumstances existing on this record, the warnings given prior to the sixth interrogation at the door to the polygraph lab, did not satisfy the letter or spirit of the Miranda commandment, and that the people have not sustained the heavy burden of demonstrating "that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel”. Escobedo v Illinois, supra, 490 n. 14.

We reverse and remand for new trial barring the exculpatory or inculpatory statements or confessions made by the defendant during his in-custody interrogations numbered two through seven as here discussed. Information obtained during the first interrogation while the defendant was a willing visitor to the station house and not in custody is not barred.

Bronson, J., concurred.

D. E. Holbrook, P. J.

(dissenting). This writer is unable to agree with the majority, not being "left with a definite and firm conviction that a mistake was committed” at defendant’s Walker hearing.

It is apparently conceded that, as of the time of the first two interviews, the investigation had not narrowed on the defendant. Between the second and third interrogations, the police were told by defendant’s mother that she was missing a clothesline rope similar to the rope found around the neck of the murder victim. It is this information which apparently causes the majority to conclude that the investigation had then narrowed on the defendant. As a matter of fact, however, the police had been checking on an alibi that defendant had given at a prior interview, and had found no reason to believe the alibi was untrue. Further, there was no effort made at that time to ascertain whether or not defendant’s fingerprints were among those found at the scene of the murder. This was not done until sometime after the interview on February 15, 1973 (that being the fifth interview). Had the investigation narrowed on the defendant at the time of the third interview, it seems strange indeed that the police would wait two weeks to find whether defendant’s fingerprints had been left at the scene of the crime. Approximately one week after the second January 31st interview the defendant was asked whether or not he would take a lie-detector test. He said he would not do so until he had talked to his attorney. He was not questioned further at that time. On February 15 defendant was in Bay City to take a polygraph examination on another matter. At this time, still no effort had been made to place defendant at the scene of the crime through fingerprints. On February 16 it was discovered that defendant’s fingerprints were in the house where the murder had occurred. Also, on this date defendant agreed to take a polygraph test. He was warned of his rights and he confessed.

There is absolutely nothing in the record to indicate that defendant was forced to say anything against his will. In fact, there is nothing in the record, other than the tale of the missing clothesline, to indicate that the investigation had narrowed on the defendant. At least five others had submitted to a polygraph examination concerning the murder in question. Other suspects existed. There was evidence that the dead woman’s estranged husband had been with her earlier in the evening on the day she was murdered. There was evidence that she had telephoned another man on the night of her murder. This man claimed that he had never been to her home, but later changed his story. As it developed, there was expert testimony which established that the clothesline which defendant’s mother had lost could not have been the clothesline found at the scene of the murder.

The trial court found that, until the sixth interrogation, the finger of guilt had not yet pointed at this defendant. The lower court also found that all the statements that defendant made were made voluntarily. This writer finds nothing in the record which warrants a "definite and firm conviction that a mistake was committed” below. I would therefore vote to affirm. 
      
      
        People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
     