 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Harrington10/2/2003
, post-arraignment communication was initiated by the detective when he left a message at the defendant's house and defendant never initiated contact with the police thereafter; rather questioning of the defendant was initiated by the police. Id. Therefore, the post-polygraph interrogation and admission by the defendant in the patrol car was obtained in violation of the defendant's Sixth Amendment rights. Id.
However, the facts in this case are similar to the facts in Anderson only to the extent that the police initiated the first post-arraignment contact with defendant regarding the polygraph examination. Despite this limited factual similarity, here, unlike in Anderson, defendant requested that the police stay and talk with him after the polygraph examination, thereby reinitiating contact with the police. Troopers Maki and Gutierrez testified that defendant asked police to talk with him about the investigation, and he was fully aware of his rights as he indicated that he knew them "by heart". The holding in Anderson does not apply where a defendant is the initiator of communications with police and thereafter waives his Sixth Amendment right to counsel.
Moreover, even though defendant denies reinitiating contact, the trial court believed the troopers' testimony. This Court will not review issues of credibility of witnesses. People v Lemmon, 456 Mich 625, 642; 576 NW2d 129 (1998). Finally, although the police did contact defendant post-arraignment by visiting him in jail to discuss the appointment for the polygraph exam, this contact did not generate the statements that defendant wishes to suppress. Defendant only made the statements that he wished to suppress after he reinitiated contact with the police by making a request to discuss the investigation.
I also disagree with the majority's statement that a jailed defendant cannot validly waive his right to counsel and make inculpatory statements simply because they were "obtained during the course of ongoing conduct that was originally initiated by police". Again, I note that no interrogation occurred until defendant requested to talk with the troopers. Defendant was reminded of his rights and was free to decline to make any statement at all.
III.
I agree with the trial court that this case is more appropriately compared to People v McElhaney, 215 Mich App 269; 545 NW2d 18 (1996). In McElhaney , the defendant initiated contact with police when he demanded a polygraph examination via a letter post-arraignment. The defendant was then read his Miranda rights and given a polygraph examination. Id. In a post-polygraph interview, the defendant confessed to the crime. Id. On appeal, the defendant argued that the statement he made after the polygraph exam was inadmissible because it violated his Sixth Amendment right to counsel. Id. In McElhaney, this Court stated "a knowing and intelligent waiver of the Sixth Amendment right to counsel depends upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Id., at 274. Through application of this test, the McElhaney Court held that the defendant knowingly and intelligently waived his right to counsel because he initiated contact with the police regarding the polygraph, he had a lengthy criminal history and insisted on the polygraph despite his counsel's advice, and he was read his Miranda rights before the polygraph. Id., at 274-275 .
In the instant case, defendant meets the criteria set forth in McElhaney . As previously discussed, defendant initiated contact with the police before disclosing the statements in question. At the polygraph administration, defendant was read his Mira
Page 1 2 3 4 5 6 Michigan DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|