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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant, UNPUBLISHED July 28, 2016

v No. 329015 Wayne Circuit Court AARON WADE, LC No. 14-000707-FC

Defendant-Appellee.

Before: G ADOLA , P.J., and S ERVITTO and S HAPIRO , JJ.

P ER C URIAM

.

Defendant was charged with two counts of armed robbery, MCL 75 0.529, and one count of conspiracy to commit armed robbery, MCL 750.157a; MCL 750.52 9. Defendant moved to suppress his statement to the police and, at the conclusion of a Walker 1 hearing, the trial court granted defendant’s motion. This Court granted the prosecutor’ s application for leave to appeal and, on May 12, 2015, vacated the trial court’s decision and re manded the case. 2 On remand, the trial court again granted defendant’s motion to suppress, a nd the prosecution thereafter filed a second application for leave to appeal with this Court. This C ourt held the prosecution’s application in abeyance and dire cted the trial court to reconsi der and articulate its factual findings concerning whether “defen dant’s waiver of his rights u nder Miranda v Arizona , 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), was voluntary, knowin g and intelligent.” 3 On December 16, 2015, the trial court issued its resulting opinion and again granted defendant’s motion to suppress. This Court th ereafter removed the prosecut ion’s application for leave to appeal from abeyance and the prosecutor now appeals by leave gr anted. 4

1 People v Walker (on Rehearing) , 374 Mich 331; 132 NW2d 87 (1965).

2 People v Aaron Wade , unpublished opinion per curiam of the Court of Appeals, issue d May 12, 2015 (Docket No. 324413).

3 People v Aaron Wade , unpublished order of the Court of Appeals, entered November 2 4, 2015 (Docket No. 329015).

4 People v Aaron Wade , unpublished order of the Court of Appeals, entered January 12 , 2016 (Docket No. 329015).-2- This case arises from a robbery of an individual that took pla ce at a gas station in Detroit. Defendant was eventually arrested (along with two others) for t he crime, and was thereafter interviewed by Detroit Police Officer Jonathan Parnell. While in custody and being interviewed by Officer Parnell, defendant signed a Miranda 5 waiver advising him of his rights and confessed

to his involvement in the crime. Officer Parnell wrote a state ment recording defendant’s confession, which defendant initialed and signed. The prosecut ion then charged defendant with armed robbery and conspiracy to commit armed robbery.

Defendant made a motion in the trial court to suppress his sta tement to police, arguing that it was not voluntarily, know ingly, or intel ligently given. 6 The trial court held a Walker hearing to determine if defendant’s statement should be suppres sed and considered reports and testimony from two experts, Dr. Judith S. Shazer and Dr. NormanS. Miller. Both experts

interviewed defendant and concluded that he had mental deficien cies and would not have been

able to read and understand his Miranda rights. Dr. Shazer testified that it would have been difficult for defendant to fully understand his rights even if they were read to him unless they were reviewed, paraphrased, and explained to him. Relying heav ily on their opinions, the trial court granted defendant’s motion to suppress the statement on O ctober 10, 2014, for the first time. On two separate remands, t he trial court again suppresse d defendant’s statement.

The prosecutor now again argues that the trial court erred whe n it suppressed defendant’s statement. The prosecutor contends that the trial court erred when it essentially relied upon

defendant’s mental deficits alone to determine that defendant d id not voluntarily waive his

Miranda rights, as the totality of th e circumstances supported a findi ng that defendant’s waiver was voluntary. The prosecutor al so argues that the trial courterred when it determined that defendant did not knowingly and intelligently waive his Miranda rights, as the trial court failed

to consider all of the circumstances surrounding the interrogat ion and instead “erroneously relied solely on the competency evaluations when determining whether d efendant knowingly and intelligently waived his Miranda rights.” We agree.

A trial court’s determination that a waiver was knowingly, int elligently, and voluntarily

made is reviewed de novo. People v Gipson , 287 Mich App 261, 264; 787 NW2d 126 (2010). “Credibility is crucial in determining a defendant’s level of c omprehension, and the trial judge is in the best position to make this assessment.” People v Cheatham , 453 Mich 1, 30; 551 NW2d

5 Miranda v Arizona , 384 US 436.

6 Notably, the issue of defendant’s competency was officially ra ised by the prosecution. In an April 16, 2014 motion, the prosecu tor filed a motion for a comp etency exam, requesting that the court order defendant to undergo an examination to determine wh ether he was competent to make a knowing and intelli gent waiver of his Miranda rights. Although this Court is aware of no provision for a competency examination in this situation, the t rial court nevertheless referred

defendant to the Center for Foren sic Psychiatry purportedly for a determination of whether defendant was competent to understand his Miranda rights. An independent examination of defendant was conducted following the Center for Forensic Psych iatry’s determination, and defendant subsequently filed his motion to suppress his stateme nts.-3- 355 (1996). Thus, this Court must review the entire record, bu t will not disturb the factual findings of the trial court con cerning a knowing and intelligen t waiver of Miranda rights unless a finding is clearly erroneous. People v Daoud , 462 Mich 621, 629-630; 614 NW2d 152 (2000). The trial court’s finding of fact constitutes clear error if, b ased on a review of the entire record,

this Court is left with a definite and firm conviction that the trial court made a mistake. People v

Hall , 249 Mich App 262, 267; 643 NW2d 253 (2002), remanded on other grounds 467 Mich 888 (2002). Although the trial court’ s factual findings regarding a defendant’s knowing and intelligent waiver of Miranda rights is reviewed for clear error, the meaning of knowing and intelligent is a question of law subject to de novo review. Daoud , 462 Mich at 629-630.

The United States and Michigan Constitutions prohibit compelle d self-incrimination. US Const, Am V; Const 1963, art 1, § 17; People v Elliott , 494 Mich 292, 301 n 4; 833 NW2d 284 (2013). In order to use a defendant’s incriminating statements resulting from a custodial interrogation, the prosecution must demonstrate that proper pro cedural safeguards were in place to protect the right against self-incrimination. See Miranda , 384 US at 444. “Prior to any questioning, the person must be warned that he has a right to r emain 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.” Id . A defendant may waive his rights if the waiver is voluntary, knowing, and intelligent. Id . “[T]he analysis must be bifurcated, i.e., considering (1) whether the waiver was voluntary, and (2) whether the waiver wa s knowing and intelligent.” People v Tierney , 266 Mich App 687, 707; 703 NW2d 204 (2005).

“[W]hether a waiver of Miranda rights is voluntary depends on the absence of police

coercion.” Daoud , 462 Mich at 635. The prosecution bears the burden of proving voluntariness by a preponderance of the evidence. Id . at 634. “The test of voluntariness is whether, considering the totality of a ll the surrounding circumstances, the confession is the product of an essentially free and unconstrained choice by its maker, or whether the accused’s will has been overborne and his capacity for sel f-determination critically im paired.” People v Givans , 227 Mich App 113, 121; 575 NW2d 84 (1997).

To determine whether a defenda nt’s statement was voluntary, th e court considers the totality of the circumstances, including: [1] the age of the ac cused; [2] his lack of education or his intelligence level; [3] the extent of his previous experien ce with the police; [4] the repeated and prolonged nature of the ques tioning; [5] the length of the detention of the accused before he gave the statement in question; [6] the lack of any advice to t he accused of his constitutional rights; [7] whether there was an unnecessary delay in bringing him before a magistrate before he gave the confession; [8] whether the accused was injured, intox icated or drugged, or in ill health when he gave the statement; [9] whether the accused was deprive d of food, sleep, or medical attention; [10] whether the acc used was physically abused; and [11] whether the suspect was

threatened with abuse. People v Cipriano , 431 Mich 315, 334; 429 NW2d 781 (1988). No single factor is conclusive, id .; People v Fike , 228 Mich App 178, 182; 577 NW2d 903 (1998), however, “the voluntariness prong cannot be resolved in [a] def endant’s favor absent evidence of police coercion or misconduct,” People v Howard , 226 Mich App 528, 543; 575 NW2d 16 (1997). A defendant’s mental condition or other deficiency tha t renders him susceptible to

coercion does not render the waiv er involuntary absent evidence that the police exploited the deficiency. Cheatham , 453 Mich at 15-17; Fike , 228 Mich App at 182.-4- In our May 2015 opinion, another panel of this Court found tha t the trial court, in its October 10, 2014 ruling to suppress defendant’s statement, impr operly analyzed whether defendant’s waiver was voluntary, and failed to “resolve the co nflict between defendant’s statement to Miller, that the pol ice threatened him with 25 yea rs in prison if he did not cooperate, with his statement to Shazer, that the police had not threatene d or mistreated him, and Sergeant Parnell’s testimony that he ne ver made such a threat.” Wade , unpub at 3. This C ourt determined that a finding regarding this alleged police coercion was neces sary to determine whether defendant’s waiver was voluntary. Id . However, in its December 16, 2015 opinion on remand, the trial court again failed to specifically address this confl ict and made no factual findings regarding whether defendant was c oerced by the police into waiv ing his Miranda rights. Because “the voluntariness prong cannot be resolved in [a] defe ndant’s favor absent evidence of police coercion or misconduct,” Howard , 226 Mich App at 543, and because a defendant’s mental condition or other deficiency that renders him susceptib le to coercion does not render the waiver involuntary absent evidenc e that the police exploited th e deficiency, Cheatham , 453 Mich at 25-27, the trial court erred when it failed to make a factua l finding regarding police coercion and whether the police exploite d defendant’s low intelligence. 7

In its December 16, 2015 opinion on remand, instead of examini ng the conduct by the police, and making a finding as t o the claim of coercion, the t rial court determined that defendant’s waiver was involuntary because defendant did not un derstand his Miranda rights. Specifically, the trial court concluded that the statement was involuntary because it found that defendant “signed a confession because he believed he could go home after he signed the confession.” However, this is no t a finding of coercion, but o f a failure to understand his rights as it was implicitly based on defendant’s mental deficiencies and Dr. Miller’s resulting assessment of defendant as susceptible. Again, however, there is no “subjective inquiry with regard to the voluntary prong of the waiver inquiry.” Cheatham , 453 Mich at 17. “[A]bsent police coercion, a defendant's mental state alone can never ren der a confession involuntary.” Id

. at 15-16.

Moreover, in ruling that defenda nt’s waiver was involuntary, t he trial court seemed to rely on only two of the eleven Cipriano factors: 1) the fact that defendant had mental deficiencies and was “determined to be mentally retarded by two experts,” and 2) defendant’s lack of previous experience with Miranda warnings. However, while the trial court listed the remaining Cipriano factors, 8 it did not seem to consider that the remaining factors weighed

7 We note that defendant never testified at the Walker hearing. Any statements that defendant made to an expert or any other w itness concerning police coerci on would thus likely be inadmissible as hearsay. The trial court also failed to addres s this issue and the effect it would have on the voluntariness prong of the waiver inquiry or, more specifically police coercion.

8 The trial court noted defendant’s age, and the fact that there was not an extended period of time

between defendant’s detention and statement, that the questioni ng did not occur over a prolonged period of time, and the fact that defendant was not injured, in toxicated, drugged, in ill health,-5- heavily in favor of a finding that defendant’s waiver was volun tary. For example, the trial court

indicated that defendant was 19 years old at the time of the in terrogation, but did not suggest that his youth should be considered, as nothing elicited during the Walker hearing established that defendant’s age impaired his ability to make a voluntary statem ent. Similarly, the findings of facts by the trial court that def endant was not injured, intoxi cated, drugged, in ill health, deprived of food, sleep, or medical attention, and was not physically ab used or threatened with abuse, would support a finding that his waiver was voluntary.

In sum, the trial court improperly analyzed whether defendant’ s statement was voluntary by failing to make a factual findi ng regarding whether the poli ce coerced defendant into waiving

his Miranda rights by exploiting his mental deficiencies. There is, in fa ct, no evidence on the record that any coercion occurred. Additionally, the majority of the Cipriano factors weighed heavily in favor of finding that d efendant’s waiver was volunta ry and defendant’s mental deficiencies, standing alone, we re an insufficient basis on whi ch to find defendant’s waiver was involuntary. Thus, the trial cour t erred when it determined onthis record that defendant’s waiver was involuntary. See Fike , 228 Mich App at 182 (finding “a d eficiency in the defendant t hat is not exploited by the police canno t annul the voluntariness of a confession unless there is evidence of police coercion.”).

“While the voluntariness prong of the inquiry is determined so lely by examining police conduct, a statement made pursuant to police questioning may be suppressed in the absence of police coercion if the defendant was incapable of knowingly and intelligently waiving his constitutional rights.” Howard , 226 Mich App at 538. Whether a waiver is knowing and intelligent “requires an inquiry into the suspect’s level of un derstanding, irrespective of police

behavior.” Daoud , 462 Mich at 636. “To waive rig hts intelligently and knowingl y, one must at least understand basically what those rights encompass and mini mally what their waiver will entail. The mental state that is necessary to validly waive Miranda rights involves being cognizant at all times of the Stat e’s intention to use one’s st atements to secure a conviction and of the fact that one can stand mute and request a lawyer.” Id . at 640-641. To establish a waiver is knowing and intelligent, the prosecutor must show that defen dant “[1] understood that he did not have to speak, [2] that he had the right to the presence of counsel, and [3] that the state could use what he said in a later trial against him.” Cheatham , 453 Mich at 29. A defendant’s IQ and mental disability are relevant factors in that analysis, but th ey are only two factors to be considered among the total circumstances that a court must asse ss in determining whether a defendant possesses the level of comprehension necessary to wai ve Miranda

. Id . at 35-36, 40-

43.

In determining whether defenda nt knowingly and intelligently w aived his Miranda rights, the trial court found that Serg eant Parnell’s testimony, that d efendant read his rights fluently and seemed intelligent, was not credible and instead relied on the expert’s conclusions that defendant did not understand his rights. As a result, the trial court de termined that the prosecution failed to prove by a preponderance of the e vidence that defendant’s state ment was knowingly and intelligently made. Thus, the tria l court essentially made the same finding it did in October when

deprived of food, sleep, or medical attention, was not physical ly abused, or threatened with

abuse.-6- this Court remanded the matter. In relation to the trial court ’s October ruling, this Court found that the trial court erred when it “treated [Dr.] Shazer’s and [Dr.] Miller’s opinions as

determinative on the issue of whe ther defendant understood thes e Miranda concepts,” as “waiver and [a] defendant’s competence to waive rights are legal, not p sychological, concepts, and the judge, not an expert witness, is the ultimate decision maker on these issues.” Wade , unpub at 4, quoting Cheatham , 453 Mich at 36.

Moreover, this Court found that

[aside from defendant’s mental di sability], the trial court did not address the remaining total circumstances of the interrogation. While the question of whether a defendant’s waiver is knowing and intelligent necessarily inv olves an inquiry into the suspect’s level of understanding, this can only be don e by examining the objective circumstances surroundin g the waiver. Defendant told Miller and Shazer that the police asked him to write a statement and that he refused, demonstrating knowledge of his ri ght to remain silent and of th e fact that the police intended to use the requested statement against him. De fendant also admittedly signed the waiver and confession. Even in the case of a mentally impaired defendant, a written waiver in particular is strong ev idence that the waiver is valid, as is defendant’s acknowledgement to Miller an d Shazer that he did not ask the police any ques tions concerning his rights or t he signed confession. According to Miller’s and Shazer’s reports, defend ant also understood key concepts in the legal case against him, includin g the charges, that he has to assist his attorney, and that the judge and jury deci de his fate. The jury finds him guilty or not guilty, and the judge sentences him. D efendant also understood that he was facing the possibility of a lengthy pris on sentence. This knowledge supports a finding of competency to waive Miranda . In addition, the trial court also failed to determine whether the police had rea d defendant his rights as he told Miller, or whether they simply gave him a cop y of the rights notification and directed him to “try his best” to read it hims elf as he had reported to Shazer. [ Wade , unpub at 4 (internal quotations and citations omitted.]

Based on the failure by the trial court to address these facts in its analysis, this Court ordered the trial court on remand to properly consider whether defendant’s waiver “was knowing and intelligent under the total circumstances.” Wade , unpub at 5. However, in its December 16, 2015 opinion on remand, the trial court still did not address t hese facts surrounding the interrogation or expla in how the expert’s conclusions regarding defendant’s mental deficiencies were alone sufficient to qualify defendant’s waiver as knowing and intelligent. In addition, while the trial court found that Sergeant Parnell did read defe ndant his Miranda rights, the trial court still concluded that he did not understand the rights. T his is especially significant because Dr. Shazer’s conclusion regarding defendant’s competence depend ed on how the Miranda rights “were presented and reviewed w ith him.” Dr. Shazer concluded t hat if defendant simply read the rights himself he would have been unable to understand them, bu t if the police also read him the rights and explained them, he c ould have been able to understan d them and possibly competently

waive his Miranda rights. Thus, the trial court improperly analyzed whether def endant’s waiver was knowing and intelligent by fa iling to consider t he “total c ircumstances.” As a result, the trial-7- court’s decision is unsupported by the evidence when properly c onsidered, and is therefore, clearly erroneous.

Clearly, the trial court in this case misconstrues the test fo r a voluntary and knowing

waiver of Miranda rights as well as its role in determining whether a waiver is valid. First, the judge, not an expert witness, is the ultimate decision maker on the issues of waiver and a defendant’s competence to waive rights. Cheatham , 453 Mich at 34. Here, defendant did not testify at any hearing and the trial judge relied solely upon e xpert witness testimony in determining whether defendant waived his Miranda rights. Second, the trial court judge appears to have difficulty separating the two very separate and very di stinct prongs of the waiver test and analyzing the relevant factors n ecessary to make a proper deter mination as to whether defendant did, in fact, (1) voluntarily and (2) knowingly and intelligent ly waive his Miranda rights. Given the history of this case and the fact that the trial court has continued to misapply the waiver test on remand, we have no confidence that an additional remand to this trial judge will yield a proper analysis and application of the applicable tests. We th erefore reverse and remand to a different judge.

We reverse the trial court’s or der granting defendant’s motion to suppress and we remand to the trial court, before a different judge, for further proce edings. On remand, the trial court has the discretion to permit the parties to supplement the record a s to whether defendant’s waiver of

his Miranda rights was voluntary, knowi ng and intelligent. We do not reta in jurisdiction.

/s/ Michael F. Gadola

/s/ Deborah A. Servitto /s/ Douglas B. Shapiro