At issue is the right to remain silent: Attorneys weigh in as Jackson case goes to Michigan Supreme Court

By Tom Gantert Legal News The Michigan Supreme Court will hear a Jackson case that will examine a defendant's right to remain silent. The case involves suspect Kadeem White of Jackson who in 2010 made an incriminating statement to a police detective after he told the officer he didn't want to talk to the officer or sign a waiver of his rights. White, 18, was accused of shooting to death another man in a drug deal. The Michigan Court of Appeals ruled the statement was admissible which reversed a decision by Jackson County Circuit Judge Thomas Wilson. According to the court documents, a police detective told White that if he wanted to talk to the officer, he had to sign and date a waiver. White said "I'm not going to sign it." The officer said OK. Then White said, "I don't even want to speak." Then the detective told White, "The only thing that I can tell you is this, and I'm not asking you questions, I'm just telling you. I hope that the gun is in a place where nobody can get a hold of it and nobody else can get hurt by it, okay?" White said, "I didn't even mean for it to happen like that. It was a complete accident." White later said, "I know that I didn't mean to do it. I guarantee that, I know I didn't mean to do it." Jackson attorney Jerry Engle said the issue is whether the comment by the detective was meant to evoke a response, despite the reading of the rights. "A purely voluntary statement by a defendant is and should be admissible," Engle said. "If the detective had not asked a question, but merely put him in a patrol unit to take him to the police station, and on the way the defendant blurted out the same statement, it would be admissible as a voluntary statement. We have come a long way since Miranda v. Arizona in how the law treats statements. Some would say for the better, some for the worse. A defendant's statements are far more likely to be admitted today. Miranda has to be taken in context of the cases that preceded it. Leaving a defendant under a bright light for hours; depriving a smoker of cigarettes; depriving a person of sleep. All of those tactics led to false confessions and were the subject of Supreme Court action before Miranda." He said the idea is that a defendant needs to be protected from actions that deprive him or her of their constitutional right to remain silent. "There is no constitutional right to have dumb statements you make be inadmissible," said Engle. "The defendant here certainly made a statement he should not have made. Did (the detective's) statement evoke this, i.e. was it a question in disguise? Should the defendant be protected from this question/ non-question? This is an area where we are on the borderline of admissibility versus inadmissibility. It could have been a well thought out question in disguise, or a comment that seems fair." Engle said it seems to him that it was a "fair comment" by the detective. "I may not like the way the courts are going on these statement issues, but at the same time, the statement does not deserve the response it got," he said. "Had it been a response regarding the whereabouts of the gun, or even that 'no one will find it', I might be more inclined to believe it was questioning. 'I didn't even mean for it to happen like that. It was a complete accident' sounds like a guilty conscience letting loose, not an answer to the (detective's) comment. I believe it is admissible and will be found to be admissible." Thomas Fleming, a professor of Criminal Justice at Jackson Community College, said it is how the court determines "the functional equivalent of questioning." "The courts have held that comments directed to a suspect that were designed to elicit an answer were the functional equivalent of questioning," Fleming said. "In another case, a suspect responded to a conversation between two officers and incriminated himself. In that case the court determined that that was not the functional equivalent of questioning." James Fifelski, an Ann Arbor attorney, said once a defendant invokes his right to remain silent, the police have to honor that. "What is the appropriate response to someone who says, 'I don't want to talk?' I would assume you don't talk to them," Fifelski said. "As a defense attorney, I think when someone invokes their right to remain silent, any continued conversation, whether it is interrogation or not, any continued conversation with that particular person should be scrutinized for a Fifth Amendment violation. Whether the Court goes that far will be a tough call." Fifelski said that many suspects are interviewed in prison or in police headquarters which creates an environment where the defendant may feel compelled to answer questions even when not directly questioned. "When a person invokes his or her right to remain silent, that should mean any type of conversation is over," Fifelski said. "That's unfortunately not what happens. That's when there are problems." Jennifer Lamp, a Jackson defense attorney, said the suspect was given his Miranda warnings and told the detective he wished to exercise his right to remain silent. "The detective then made a comment about hoping the gun was in a safe place and that no one would get hurt by it," Lamp said. "It is this issue that is on appeal - whether the detective was continuing to interrogate Kadeem White when the detective made this statement. While it was not direct interrogation, the issue on appeal was whether it was the 'functional equivalent' of interrogation and, thereby, a violation of Miranda. The Michigan Court of Appeals held that the comment was neither interrogation nor its functional equivalent and, furthermore, that White's incriminating statement was not the sort of response necessarily elicited by the detective's comment, Lamp noted. In reaching its conclusion, the court of appeals used a three part analysis handed down from the US Supreme Court in 1980 in People v Innis: (1) Whether the police officer was asking questions, (2) whether a suspect had a peculiar susceptibility to respond to any safety concerns about where the gun might be located, and (3) whether the police officer was asking a question that would call for an incriminating response, Lamp said. "The primary focus is on the suspect's perception rather than the police officer's intent, which is really only relevant as to the likelihood of eliciting a criminally incriminating response," she said. "Arguably, the detective's comment was really a little of both. A statement about the safety of a gun's location is certainly a real concern -a gun sitting in a field where children could find it is clearly a problem. On the other hand, why make a statement like that, directly to the suspect, unless the detective is hoping to get an admission regarding the gun and its location. That is what the Michigan Supreme Court will have to decide when it hears the case." Jackson Attorney Corey McCord said the case depends on whether the comment was solicited. "Once they say, 'We are done talking', most people continue to talk," McCord said. "That's probably why the Supreme Court picked this case. It's probably a real close call." Published: Mon, Apr 16, 2012

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