            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    January 16, 2020
               Plaintiff-Appellant,

v                                                                   No. 349283
                                                                    Jackson Circuit Court
JAMES EDWARD SMITH,                                                 LC No. 18-002402-FC

               Defendant-Appellee.


Before: CAMERON, P.J., and SHAPIRO and SWARTZLE, JJ.

PER CURIAM.

        This case arises from a police detective’s jailhouse interview of defendant. The trial
court granted defendant’s motion to suppress his statements made during the interview, based on
its conclusion that defendant did not validly waive his rights under Miranda v Arizona, 384 US
436; 86 S Ct 1602; 16 LE2d 694 (1966), and that defendant unequivocally invoked his right to
counsel before making the statements. This Court granted the prosecutor leave to appeal. See
People v Smith, unpublished order of the Court of Appeals, entered August 13, 2019 (Docket No.
349283). Under Howes v Fields, 565 US 499, 511; 132 S Ct 1181; 182 L Ed 2d 17 (2012), a
defendant is not considered to be “in custody” for Miranda purposes simply because he is
incarcerated on unrelated charges at the time of the police interview. Therefore, we vacate the
order granting the motion to suppress and remand to the trial court for additional factual findings
and application of the proper legal standards.

                                       I. BACKGROUND

        The Hillsdale County Prosecutor charged defendant with two counts of first-degree
criminal sexual conduct (CSC-I) arising from the sexual assault of his then-minor son.
Defendant subsequently pleaded guilty to a single count of CSC-I in that case, and the Hillsdale
Circuit Court sentenced him to a term of 2 years and 11 months to 25 years in prison for that
conviction.

        On June 13, 2018, while defendant was incarcerated in the Hillsdale County jail awaiting
trial on the charges brought against him in Hillsdale County, Jackson County Sheriff’s Office
Detective Thomas Freeman visited defendant at the jail and questioned him about alleged acts of


                                                -1-
sexual abuse involving defendant’s then-minor stepdaughter, which allegedly occurred in
Jackson County.

        During the interview, Detective Freeman verbally advised defendant of his Miranda
rights and provided him with a written copy of those rights. Detective Freeman did not,
however, read aloud the contents of the acknowledgment and waiver section of the advice-of-
rights form, but merely offered defendant the opportunity to read the form to himself. Defendant
signed the advice-of-rights form, apparently without reading it. Detective Freeman then advised
defendant that he had “the absolute right to stop anytime you wish and to answer no further
questions or make no further statement.”

       Detective Freeman then asked defendant if he knew what the detective wanted to talk
with him about, and defendant responded that the topic was likely the molestation of his
stepdaughter. Defendant then stated “I thought that’s what I was here for,” referring to his
incarceration in the Hillsdale County jail. Defendant did not appear to understand why the
Hillsdale County prosecutor had filed two counts of CSC-I against him, and he expressed
confusion regarding the identity of the alleged victim or victims at issue in Hillsdale County’s
prosecution. Detective Freeman responded that the police investigation in Jackson County
concerned acts against defendant’s stepdaughter and stated that he could not speak to the
prosecution in Hillsdale County.

        When Detective Freeman referenced the allegations made by defendant’s stepdaughter,
defendant responded “I’d rather have a lawyer present” before talking about those allegations.
Despite defendant’s request for an attorney, Detective Freeman continued the interview by
asking defendant whether he had previously spoken with a state trooper about his stepdaughter’s
allegations. Defendant explained that he attempted to commit suicide the night before he spoke
to the state trooper and that he was “in a haze for two or three days” from the effects of the drugs
he took during the suicide attempt. Defendant also stated that, even though he was “still under
the influence” of various drugs at the time, he informed the state trooper during the interview
that he “wanted a lawyer.”

        Undeterred by defendant’s second reference to the desire to speak to a lawyer, and even
stating that “I can respect your request to have an attorney present,” Detective Freeman pressed
on, asking defendant whether statements he made to the state trooper about his stepdaughter’s
allegations were true. Detective Freeman also asked defendant why he tried to kill himself, and
what methods he employed in that attempt. In so doing, it appears that Detective Freeman was
attempting to spur defendant into making incriminating statements tying his suicide attempt to
the allegations that he sexually assaulted his stepdaughter.

        Detective Freeman further asked defendant about the context of text messages that he
allegedly sent to his wife about his stepdaughter’s allegations. Defendant stated, “Well, those
are what they are you know. You got those, they’re what they are you know.” Defendant also
indicated that he could not lie to his wife. Defendant then stated, “But, like I said, I’d rather
have a lawyer present.” Detective Freeman responded that he did not want to make defendant
talk about anything that he was not comfortable talking about without an attorney. Defendant
again expressed his confusion regarding why the Hillsdale County prosecutor had filed two
counts of CSC-I against him, and stated that he had “not seen a lawyer here yet.” Detective

                                                -2-
Freeman stated that “we won’t speak anymore” and defendant said, “I’d like a court appointed
lawyer.” Detective Freeman concluded the interview and gave defendant a business card with
his contact information.

       On September 10, 2018, the Jackson County Prosecutor charged defendant with two
counts of CSC-I, MCL 750.520b(1)(a), one count of aggravated indecent exposure, MCL
750.335a(2)(b), and one count of second-degree criminal sexual conduct (CSC-II), MCL
750.520c(1)(a). In the Jackson Circuit Court, defendant moved to suppress his statements to
Detective Freeman under the Fifth Amendment to the federal Constitution. Defendant’s motion
assumed, without examination, that defendant was “in custody” for Miranda purposes when
questioned by Detective Freeman. Defendant argued that he did not validly waive his Fifth-
Amendment right to remain silent. Defendant further argued that he invoked his Fifth-
Amendment right to counsel and that Detective Freeman improperly continued to question him.
Therefore, defendant asserted two independent reasons for the suppression of statements he
made to the detective during the interview.

        The prosecutor responded that Detective Freeman was not required to advise defendant of
his Miranda rights because the federal Supreme Court had ruled in Fields that an individual
incarcerated for an offense unrelated to an offense about which he is being interviewed is not,
necessarily, “in custody” for Miranda purposes with regard to the latter offense. The prosecutor
further argued that, even if defendant was “in custody” for Miranda purposes, he validly waived
his rights when he signed the advice-of-rights form provided by the detective. Finally, the
prosecutor argued that defendant never made an unequivocal request for counsel, and that, if he
had, he reinitiated the interview by continuing to talk to the detective after referencing his desire
to consult an attorney. Therefore, the prosecutor asserted that there was no violation of the Fifth
Amendment and there was no reason to suppress defendant’s statements.

       At a hearing held on defendant’s motion, the trial court reviewed the recording of
defendant’s interview, entertained arguments from counsel, and granted defendant’s motion to
suppress from the bench. The trial court reasoned:

       So, first of all I’m a little concerned about the application of Fields, because I
       think there’s some discussion right from the beginning whether he’s here on the
       Hillsdale case, is here on the Jackson case. And then when we get to the—so, if
       the Fields case was applicable if they went up on appeal and said that it is then
       that’s a no brainer we’re all done. But, on the other hand when I get down to—I
       think Detective Freeman did a great job with the first part of the form and if he’d
       of just sat and read in all of the terms and conditions of the acknowledgment
       and—of waiver and then asked Mr. Smith if he understood those and if he did
       would you go ahead and sign on that line. But, it’s [a] single spaced typed [form];
       I mean it’s difficult even with me with my bifocals on to read it. You know I
       watched how many seconds he had—I think [defense counsel] saying about a
       three count was about it, so I’m certainly not satisfied that the acknowledgment
       and waiver that you could show the Court by a preponderance of the evidence that
       his waiver was made knowingly, intelligently, and voluntarily. Then we have the
       next issue of the attorney. I mean he says, “I’d rather have my lawyer present,”
       that’s pretty good. I mean you know sometimes we know we have defendants

                                                -3-
       that do things like, you know I might need a lawyer; it might be helpful you know
       for me to talk to a lawyer. But, he here says, “I’d rather have a lawyer present,”
       and I think at that point it’s up to the detective or the police to get some further
       clarification then at that point, do you want us to get you a court appointed
       lawyer. Then I put a second notice and I really put in there I don’t really hear any
       equivocation where he’s kind of saying well, I don’t really know if I need—I
       mean he says, “I’d rather have a lawyer present,” “I’d like to have a lawyer here,”
       the last time, “I’d like to have a court appointed lawyer.” I mean I just don’t
       know how much clearer that could be, so in that sense and those reasons I’m
       going to grant the defense motion to suppress. Now, I will say right on the record
       if the Fields case is on point the prosecutor wins, you know I mean for all the
       reasons that you detail. But, to me that’s going to be an issue for the Court of
       Appeals, but on the other hand if the Fields case doesn’t apply I think the defense
       properly should and I think the Court is correctly following the law.

        The trial court then clarified that, in its opinion, the Fields case did not apply to the facts
of this case, but did not explain why it reached that conclusion. As can be seen above, the trial
court made a fleeting reference to defendant’s apparent confusion regarding the nature of the
criminal charges he was facing in Hillsdale County, but made no factual findings pertinent to
whether defendant was “in custody” for Miranda purposes. Further, the trial court did not
expressly state a legal conclusion, based on those factual findings, regarding whether defendant
was “in custody” for Miranda purposes. The trial court simply declared, without explanation,
that the binding precedent of the United States Supreme Court, as expressed in Fields, did not
apply to this case.

        Despite the lack of factual findings and legal analysis regarding this critical issue, the
trial court granted defendant’s motion to suppress for two independent reasons. First, according
to the trial court, the record established that Detective Freeman failed to obtain an adequate
acknowledgment from defendant that he understood his Miranda rights and was willing to waive
those rights. As a consequence, the judge concluded that defendant’s signed acknowledgment
and waiver of his rights was not voluntarily, knowingly, and intelligently given, rendering
defendant’s statements inadmissible. Second, according to the trial court, suppression was
mandated because the detective continued to question defendant after he made an unequivocal
request for legal counsel. The trial court did not address the prosecutor’s argument that, even if
defendant made an unequivocal request for counsel, he voluntarily reinitiated the interview with
the detective.

       The trial court effectuated its bench ruling by entry of an order holding that “all
statements made by the Defendant on June 13, 2018, to Det. Thomas Freeman at the Hillsdale
County Jail are suppressed and are inadmissible at trial.”

       This appeal followed.

                                           II. ANALYSIS

                                  A. STANDARD OF REVIEW


                                                 -4-
       Whether a person was “in custody” and, thus, entitled to receive Miranda warnings, is a
mixed question of fact and law that must be answered independently by an appellate court after
de novo review of the record. People v Barritt, 325 Mich App 556, 561; 926 NW2d 811 (2018).
This Court reviews for clear error a trial court’s “factual findings concerning the circumstances
surrounding statements to the police.” Id. At the same time, this Court reviews de novo
questions of law relevant to the suppression motion, People v Hawkins, 468 Mich 488, 496; 668
NW2d 602 (2003), and the ultimate decision regarding the motion to suppress the defendant’s
statements, Barritt, 325 Mich App at 561.

                             B. CUSTODIAL INTERROGATION

                                    1. APPLICABLE LAW

        Both the state and federal Constitutions guarantee a person’s right against self-
incrimination. Const 1963, art 1, § 17; US Const, Am V. To protect this right, law-enforcement
officers must advise a defendant of his constitutional rights if the defendant is subject to a
custodial interrogation. Barritt, 325 Mich App at 561.

               Miranda warnings are not required unless the accused is subject to a
       custodial interrogation. Generally, a custodial interrogation is a questioning
       initiated by law enforcement officers after the accused has been taken into
       custody or otherwise deprived of his or her freedom of action in any significant
       way. Whether an accused was in custody depends on the totality of the
       circumstances. The key question is whether the accused could have reasonably
       believed that he or she was not free to leave. [People v Steele, 292 Mich App
       308, 316-317; 806 NW2d 753 (2011) (citations omitted).]

        To determine whether a defendant was “in custody” for purposes of triggering Miranda
protections, “courts consider both whether a reasonable person in the defendant’s situation would
believe that he or she was free to leave and whether the relevant environment presented the same
inherently coercive pressures as the type of station house questioning at issue in Miranda.”
People v Cortez (On Remand), 299 Mich App 679, 692; 832 NW2d 1 (2013) (cleaned up).
“Statements made by a defendant to the police during a custodial interrogation are not admissible
unless the defendant voluntarily, knowingly, and intelligently waives the constitutional right
against self-incrimination.” Barritt, 325 Mich App at 561-562.

        “As used in our Miranda case law, ‘custody’ is a term of art that specifies circumstances
that are thought generally to present a serious danger of coercion.” Fields, 565 US at 508-509.
Although a defendant who is incarcerated is “in custody” in one sense, this understanding of
“custody” is distinct from the determination whether a defendant is in a custodial situation for
Miranda purposes. See id. at 508 n 5; see also People v Honeyman, 215 Mich App 687, 695;
546 NW2d 719 (1996) (“That the interrogation occurred while defendant was in custody was
happenstance.”). “[I]mprisonment alone is not enough to create a custodial situation within the
meaning of Miranda.” Fields, 565 US at 511. “Instead, whether incarceration constitutes
custody for Miranda purposes . . . depends upon whether it exerts the coercive pressure that
Miranda was designed to guard against—the danger of coercion that results from the interaction


                                               -5-
of custody and official interrogation.” People v Elliott, 494 Mich 292, 306; 833 NW2d 284
(2013) (cleaned up).

        Furthermore, the “Fifth Amendment right identified in Miranda is the right to have
counsel present at any custodial interrogation.” Edwards v Arizona, 451 US 477, 485-486; 101 S
Ct 1880; 68 L Ed 2d 378 (1981). Absent a custodial interrogation, there is no infringement of a
Fifth-Amendment right and no occasion to determine whether there has been a valid waiver of
that right. Id. at 486. Yet, during a custodial interrogation, if an “individual indicates in any
manner, at any time prior to or during questioning, that he wishes to remain silent, the
interrogation must cease.” Miranda, 384 US at 473-474. “At this point he has shown that he
intends to exercise his Fifth Amendment privilege” and any statements that occur after that point
are deemed to be the product of compulsion, “subtle or otherwise.” Id. at 474. To be effective,
an accused’s invocation of his right to counsel must be unequivocal. Davis v United States, 512
US 452, 459; 114 S Ct 2350; 129 L Ed 2d 362 (1994). Whether a request for an attorney is
unequivocal is an objective inquiry. Id. at 458-459.

        “[A]fter initially being advised of his Miranda rights, the accused may himself validly
waive his rights and respond to interrogation,” but “a valid waiver of that right cannot be
established by showing only that he responded to further police-initiated custodial interrogation
after being advised of his rights.” Edwards, 451 US at 484. Thus, once an accused makes a
request for counsel, law enforcement officers may not subject him to further questioning “unless
the accused himself initiates further communication, exchanges, or conversations with police.”
Id. at 484-485.

                               2. THE TRIAL COURT’S RULING

        In this case, although the trial court indicated that it believed defendant was “in custody,”
it appears that the trial court was referring to the bare fact of defendant’s incarceration in the
Hillsdale County jail, rather than whether defendant was actually “in custody” for Miranda
purposes. The trial court never made an express finding on the record pertinent to whether
defendant was “in custody” for Miranda purposes when interviewed by the detective. Moreover,
there is nothing in the record to suggest that the trial court applied the legal standards set forth in
Fields, Barritt, Cortez and Elliott. Rather, the trial court appears to have left it to this Court to
advise it of the correct legal standards to apply, and did so without providing this Court with the
requisite factual findings to which those legal standards must be applied. In light of these
deficiencies, we must remand this matter to the trial court for additional factual findings and
reconsideration under the proper legal standards.

       3. NECESSARY FACTFINDING AND LEGAL CONCLUSIONS REGARDING
                        CUSTODIAL INTERROGATION

        On remand, the trial court must articulate factual findings regarding the following issues:
(1) whether defendant was “in custody” for Miranda purposes; (2) if so, whether defendant
validly waived his Fifth-Amendment right to remain silent, given the detective’s failure to read
aloud the contents of the acknowledgement and waiver section of the advice-of-rights form; (3)
if defendant did validly waive his right to remain silent, whether he unequivocally invoked his


                                                 -6-
Fifth-Amendment right to counsel; and (4) if defendant unequivocally invoked his right to
counsel, whether he later reinitiated the interview with police under Edwards.

       First, to determine whether defendant was “in custody” for Miranda purposes, the trial
court must

       determine, in light of all the objective circumstances surrounding the
       interrogation: (1) whether a reasonable person would have felt that he was not at
       liberty to terminate the interrogation and leave; and (2) whether the environment
       presented the same inherently coercive pressures as the type of station house
       questioning involved in [Miranda]. [Barritt, 325 Mich App at 560, quoting
       People v Barritt, 501 Mich 872; 901 NW2d 859 (2017).]

        In determining whether a reasonable person would have felt that he was not at liberty to
terminate the interrogation and leave, the trial court must consider numerous factors, including
the location of the questioning, its duration, statements made during the interview, the presence
or absence of physical restraints during the questioning, and the release of the interviewee at the
conclusion of the questioning. Fields, 565 US at 509; Barritt, 325 Mich App at 562-563. No
single circumstance is controlling, and the trial court must consider the totality of the
circumstances when deciding whether an individual was subjected to custodial interrogation
under Miranda. Barritt, 325 Mich App at 563. Even though a defendant who is incarcerated
knows that he is not free to leave the facility, and knows that he is not free to leave the interview
room by himself to “make his own way through the facility to his cell,” it is nonetheless possible
for him to know that he can terminate the police interview and ask “for a corrections officer to
arrive and escort him to his cell,” an action that would have “returned him to his usual
environment.” Fields, 565 US at 516. Therefore, depending on the totality of the circumstances,
including whether the defendant was told that he was free to end the questioning, a defendant
incarcerated on a different matter is not automatically deemed to be “in custody” for Miranda
purposes. Id. at 517.

        Furthermore, “determining whether an individual’s freedom of movement was curtailed
is the first step in the analysis, not the last.” Barritt, 325 Mich App at 580, citing Elliott, 494
Mich at 308, and Fields, 565 US at 509. A reviewing court must also “ask the additional
question whether the relevant environment presents the same inherently coercive pressures as the
type of station house questioning at issue in Miranda.” Id. at 581. This is because “the freedom-
of-movement test identifies only a necessary and not a sufficient condition for Miranda
custody.” Fields, 565 US at 509, quoting Maryland v Shatzer, 559 US 98, 112; 130 S Ct 1213;
175 L Ed 2d 1045 (2010).

        In this regard, the United States Supreme Court’s opinion in Fields is particularly
instructive. There, the Court pointed out that a person who is already incarcerated faces a
different set of circumstances and conditions in his everyday life than a person who is not
incarcerated. This is because when a person who is already incarcerated is questioned by police,
there is no “sharp and ominous change” from the conditions of his everyday life, he is “unlikely
to be lured into speaking by a longing for prompt release,” he “knows that when the questioning
ceases, he will remain under confinement,” and he “knows that the law enforcement officers who
question him probably lack the authority to affect the duration” of his incarceration. Fields, 565

                                                -7-
US at 511-512. “In short, standard conditions of confinement and associated restrictions on
freedom will not necessarily implicate the same interests that the Court sought to protect when it
afforded special safeguards to persons subjected to custodial interrogation.” Id. at 512.
Therefore, some of the factors that a court must consider in evaluating the coercive environment
include: whether the defendant invited the interview or consented to it in advance, whether the
defendant was advised that he could decline to speak with police, the duration of the interview,
whether the interviewing police officer was armed, the tone of voice employed by the
interviewing officer, whether the defendant was told that he was free to return to his cell
whenever he wanted, whether the defendant was physically restrained or threatened, whether the
defendant was questioned in a room in which he was not comfortable, whether he was offered
food or water, and whether the door to the interview room was open or closed. Id. at 515-516.

        Although the record on appeal in this case includes a transcript of Detective Freeman’s
interview of defendant, the Michigan Supreme Court has cautioned that it is the role of the trial
court, rather than this Court, to conduct the type of factfinding described above. Barritt, 501
Mich 872. We recognize that adequate factfinding regarding all of the factors outlined above
may well require an additional evidentiary hearing in the trial court, involving the testimony of
witnesses with personal knowledge of the facts surrounding Detective Freeman’s interview of
defendant. After the trial court has made those factual findings, the trial court must apply the
legal standards referenced above and state its conclusion regarding whether defendant was “in
custody” for Miranda purposes when questioned by Detective Freeman. After the trial court has
made those factual findings and conclusions of law, then a record will exist that can be reviewed
by the appellate courts.

       4. ADDITIONAL REQUIRED FACTFINDING AND LEGAL CONCLUSIONS

        If the trial court determines that defendant was not “in custody” for Miranda purposes
under Fields, then the trial court must deny defendant’s motion to suppress the statements made
during the interview by Detective Freeman because “Miranda warnings are not required unless
the accused is subject to a custodial interrogation.” Steele, 292 Mich App at 316-317. If the trial
court reaches this conclusion, then it need not further consider defendant’s motion to suppress
based on the Fifth Amendment, because a defendant only has the right to the presence of an
attorney during a custodial interrogation. Edwards, 451 US at 485-486.

        If the trial court determines that defendant was “in custody” for Miranda purposes, then
the trial court must next consider whether defendant validly waived his right to remain silent,
given the detective’s failure to read aloud the contents of the acknowledgment and waiver
section of the advice-of-rights form to defendant. “Statements made by a defendant during a
custodial interrogation are not admissible unless the defendant voluntarily, knowingly, and
intelligently waives the constitutional right against self-incrimination.” Barritt, 325 Mich App at
561-562.

       Furthermore, if the trial court determines that defendant was “in custody” for Miranda
purposes, then it must also consider whether defendant unequivocally invoked his right to
counsel. See Davis, 512 US at 459. If the trial court determines that defendant unequivocally
invoked his right to counsel, then the trial court must next consider whether defendant reinitiated


                                                -8-
the interview with police under Edwards, 451 US at 484-485. See People v Clark, __ Mich App
__; __ NW2d __ (2019).




                                            -9-
                      C. SIXTH-AMENDMENT RIGHT TO COUNSEL

        Finally, we note that while defendant moved to suppress his statements under the Fifth
Amendment, the prosecutor asked the trial court whether defendant’s Sixth-Amendment right to
counsel had been violated, and the trial court ruled that it was. “A defendant’s invocation of his
Sixth Amendment right to counsel during judicial proceedings is distinct from the invocation of
his Fifth Amendment right to counsel during custodial interrogation.” People v Smielewski, 214
Mich App 55, 60; 542 NW2d 293 (1996). The distinction between a defendant’s right to counsel
under the Fifth Amendment and his right to counsel under the Sixth Amendment has not been
raised on appeal, and it is possible that the prosecutor and trial court simply misspoke. Because
we are vacating the trial court’s order in full, we need not resolve now whether defendant has a
valid claim that his Sixth-Amendment right to counsel was violated. On remand, if defendant
chooses to supplement his motion to suppress and add a claim that his Sixth-Amendment right to
counsel was also violated, then he may do so and the trial court must make appropriate factual
findings and application of the proper legal standards to that claim as well.

                                      III. CONCLUSION

       We vacate the order granting the motion to suppress and remand to the trial court for
additional factual findings and application of the proper legal standards consistent with this
opinion. We do not retain jurisdiction.


                                                            /s/ Douglas B. Shapiro
                                                            /s/ Brock A. Swartzle




                                              -10-
