                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    March 24, 2015
                Plaintiff-Appellant,

v                                                                   No. 311295
                                                                    Lapeer Circuit Court
KENNETH CARL GRONDIN III,                                           LC No. 12-010954-FC

                Defendant-Appellee.


Before: BOONSTRA, P.J., and SAWYER and O’CONNELL, JJ.

PER CURIAM.

        The prosecutor appeals the trial court’s order granting defendant’s motion to suppress
statements made during a police interview. The trial court determined that suppression was
required under People v Bender, 452 Mich 594, 597; 551 NW2d 71 (1996), overruled by People
v Tanner, 496 Mich 199; 853 NW2d 653 (2014), because the police failed to notify defendant
that an attorney had been retained and was attempting to contact him before defendant waived
his Miranda1 rights and submitted to the police interview. This Court originally denied the
prosecutor’s application for leave to appeal.2 The prosecutor filed an application for leave to
appeal with our Supreme Court, which held the application in abeyance pending a decision in
Tanner. After the Supreme Court decided Tanner, in which it overruled Bender, it remanded this
case to this Court for consideration as on leave granted. People v Grondin III, 497 Mich 867;
853 NW2d 372 (2014). We reverse and remand for further proceedings.

        Defendant was charged with open murder, MCL 750.316, in connection with the death of
his girlfriend. After the victim’s body was discovered at a relative’s house, the police arrived at
defendant’s home, where he lived with his mother, to question him about the victim’s death.
Officers arrived at the home between 5:00 and 5:30 a.m. and then brought him to a police post
for an interview. Defendant was advised of his Miranda rights and agreed to give a statement,
but made no inculpatory statements during this interview. He also consented to provide a buccal



1
    Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
2
 People v Kenneth Carl Grondin III, unpublished order of the Court of Appeals, entered October
25, 2012 (Docket No. 311295).


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swab and hair samples. After the interview, the police returned with defendant to his home
where he and his mother consented to a search of the home. During the search, defendant’s
mother spoke on the telephone with a family attorney, whom defendant’s grandfather had
retained to represent defendant. Conflicting testimony was presented regarding whether
defendant’s mother was allowed to talk to defendant about the attorney’s availability and desire
to speak to defendant. The family attorney testified that he spoke to the officer who was at the
house and informed the officer that he wanted to speak with defendant, but the officer would not
allow defendant to speak on the phone. Other detectives arrived at the home to take defendant
for an enhanced interview. Over the next several hours, the family attorney attempted to contact
the detectives to prevent any questioning, but his calls were disconnected or sent to voicemail.
The attorney also attempted to contact and visit the police stations where defendant was believed
to have been taken, but the attorney was given conflicting information regarding the interview
location. Despite the numerous calls to detectives and trips to police posts, the attorney was
unable to reach defendant before he submitted to an interview later that afternoon. During the
second interview, defendant initially denied any involvement with his girlfriend’s death, but
ultimately gave incriminating statements that led to charges against him. Relying on Bender, the
trial court determined that the failure of the police to notify defendant of the attorney’s
availability and attempts to contact defendant required suppression of his statements at the
second interview.

        The prosecutor argues that the trial court’s decision must be reversed in light of our
Supreme Court’s recent decision in Tanner, in which it overruled its decision in Bender. We
agree. Questions of law pertaining to a motion to suppress are reviewed de novo. People v
Keller, 479 Mich 467, 473; 739 NW2d 505 (2007). Constitutional claims also present questions
of law that are reviewed de novo. Id. at 473-474. The trial court’s factual findings when ruling
on a motion to suppress are reviewed for clear error. People v Elliott, 494 Mich 292, 300; 833
NW2d 284 (2013). The trial court’s role in determining factual issues and issues of credibility
must be respected. People v Williams, 470 Mich 634, 641; 683 NW2d 597 (2004). However,
the trial court’s application of the law is not entitled to the same deference as factual findings.
People v Jenkins, 472 Mich 26, 31; 691 NW2d 759 (2005). Accordingly, the court’s ultimate
ruling on a motion to suppress is reviewed de novo. People v Williams, 472 Mich 308, 313; 696
NW2d 636 (2005).

        The United States Constitution, US Const, Am V, and the Michigan Constitution, Const
1963, art 1, § 17, both prohibit compelled self-incrimination. Elliott, 494 Mich at 301 n 4. The
prosecutor may not use a defendant’s exculpatory or inculpatory statements arising from a
custodial interrogation unless it demonstrates the application of procedural safeguards to protect
the privilege against self-incrimination. Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16
L Ed 2d 694 (1966). “Prior to any questioning, the person must be warned that he has a right to
remain 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. The defendant may
waive his rights if the waiver is made voluntarily, knowingly, and intelligently. Id.

        In Moran v Burbine, 475 US 412; 106 S Ct 1135; 89 L Ed 2d 410 (1986), the United
States Supreme Court held that the failure of police to inform a suspect of an attorney’s efforts to
reach that suspect does not invalidate the suspect’s waiver of Miranda rights. The Court
explained:

                                                -2-
               Events occurring outside the presence of the suspect and entirely unknown
       to him surely can have no bearing on the capacity to comprehend and knowingly
       relinquish a constitutional right. Under the analysis of the Court of Appeals, the
       same defendant, armed with the same information and confronted with precisely
       the same police conduct, would have knowingly waived his Miranda rights had a
       lawyer not telephoned the police station to inquire about his status. Nothing in
       any of our waiver decisions or in our understanding of the essential components
       of a valid waiver requires so incongruous a result. No doubt the additional
       information would have been useful to respondent; perhaps even it might have
       affected his decision to confess. But we have never read the Constitution to
       require that the police supply a suspect with a flow of information to help him
       calibrate his self-interest in deciding whether to speak or stand by his rights.
       Once it is determined that a suspect’s decision not to rely on his rights was
       uncoerced, that he at all times knew he could stand mute and request a lawyer,
       and that he was aware of the State’s intention to use his statements to secure a
       conviction, the analysis is complete and the waiver is valid as a matter of law. . . .

               Nor do we believe that the level of the police’s culpability in failing to
       inform respondent of the telephone call has any bearing on the validity of the
       waivers. . . . But whether intentional or inadvertent, the state of mind of the
       police is irrelevant to the question of the intelligence and voluntariness of
       respondent’s election to abandon his rights. Although highly inappropriate, even
       deliberate deception of an attorney could not possibly affect a suspect’s decision
       to waive his Miranda rights unless he were at least aware of the incident. . . . Nor
       was the failure to inform respondent of the telephone call the kind of “[trickery]”
       that can vitiate the validity of a waiver. . . . Granting that the “deliberate or
       reckless” withholding of information is objectionable as a matter of ethics, such
       conduct is only relevant to the constitutional validity of a waiver if it deprives a
       defendant of knowledge essential to his ability to understand the nature of his
       rights and the consequences of abandoning them. Because respondent’s voluntary
       decision to speak was made with full awareness and comprehension of all the
       information Miranda requires the police to convey, the waivers were valid. [Id. at
       422-424 (citations omitted).]

Despite its holding, the Supreme Court stated that state courts were free to adopt different
standards for the conduct of its employees and officials as a matter of state law. Id. at 427-428.

         In Bender, 452 Mich at 607, 612, our Supreme Court accepted the Moran Court’s
invitation to adopt different requirements and held that, “in Michigan, more is required before
the trial court may find a knowing and intelligent waiver.” The Court stated:

              We hold that Const 1963, art 1, § 17 requires the police to inform the
       suspect that a retained attorney is immediately available to consult with him, and




                                                -3-
       failure to so inform him before he confesses per se precludes a knowing and
       intelligent waiver of his rights to remain silent and to counsel.3 [452 Mich at 597.]

        In Tanner, 496 Mich at 203, our Supreme Court rejected the contention that Michigan’s
constitutional provision against self-incrimination affords greater protection than the United
States Constitution and overruled its decision in Bender. The Court explained:

              Our independent examination of Article 1, § 17, supports Moran’s
       conclusion that “full comprehension of [the Miranda rights] are sufficient to
       dispel whatever coercion is inherent in the interrogation process,” Moran, 464
       [sic] US at 427, because the warnings provide a suspect with the necessary
       information both to apprehend these rights and to make an intelligent and
       knowing waiver of the rights if he chooses. The waiver of rights cannot logically
       be affected by events that are unknown and unperceived, such as the fact that an
       attorney is somewhere present to offer assistance. As explained by one scholar:

                 “If there is any police misconduct, the suspect is unaware of such events
       because it is directed toward the attorney. Facts and events unknown to the
       suspect cannot have a coercive effect on the suspect. Therefore, the attorney’s
       efforts and/or presence is irrelevant to the suspect’s ability to make a voluntary,
       knowing, and intelligent waiver of his Miranda rights. Moreover, as the suspect
       is still read his Miranda rights, such events do not operate to deprive the suspect
       of the knowledge of his rights.

               To argue or conclude that a defendant, who by the good fortune of a
       family member hiring an attorney, must be told of the attorney’s attempts to make
       contact in order to make a knowing and intelligent waiver of Miranda rights is
       illogical and nonsensical. In fact, for the majority’s reasoning to make sense, the
       majority would have to conclude that persons who are capable of retaining an
       attorney, or have family or friends who are capable of hiring a retained attorney,
       are not capable of making a knowing and intelligent waiver of Miranda rights
       even when the attorney is not present. As is evident by the admissibility of a
       suspect’s Miranda waiver in the ordinary custodial interrogation situation, the
       majority would not so conclude. [Carroll, A Look at People v Bender: What
       Happens when the Michigan Supreme Court Oversteps Its Power to Achieve a


3
  In Bender, the lead opinion, signed by three justices, concluded that the result was required by
the right against self-incrimination in the Michigan Constitution, Const 1963, art 1, § 17.
Bender, 452 Mich at 597. Justice BRICKLEY agreed with the requirement that the police must
inform suspects that counsel has been retained for them, id. at 622-623, and recognized that both
the right against self-incrimination and the right to counsel, Const 1963, art 1, §§ 17 and 20,
respectively, are implicated, id. at 620, but preferred to announce a prophylactic rule, id. at 621.
Consequently, “practically speaking,” Justice BRICKLEY’s opinion, although labeled a
concurrence, constitutes the majority opinion. Tanner, 496 Mich at 215 n 8; see also People v
Crockran, 292 Mich App 253, 256-257; 808 NW2d 499 (2011).


                                                -4-
       Results-Oriented Decision, 74 U Det Mercy L Rev 211, 236-237 (1997) (citations
       omitted).]”

               We therefore agree with Moran that an outside and unperceived
       development, such as an attorney’s presence and initiation of contact with police,
       “can have no bearing on [a suspect’s] capacity to comprehend and knowingly
       relinquish a constitutional right.” Moran, 475 US at 422. Instead, as noted by the
       United States Supreme Court in Colorado v Spring, 479 US 564, 577; 107 S Ct
       851; 93 L Ed 2d 954 (1987), “the additional information could affect only the
       wisdom of a Miranda waiver, not its essentially voluntary and knowing nature.”
       It might not be in a suspect’s best interest to make a statement, but this Court need
       not concern itself with the wisdom of a suspect’s confession. To the contrary,
       voluntary but “foolish” confessions should be welcomed, as a suspect’s perhaps
       unwise but purely voluntary urge to tell the truth is vital in assisting the fact-
       finder in ultimately ascertaining the truth of what occurred. [Tanner, 496 Mich at
       247-248 (footnotes omitted).]

        Accordingly, the Court overruled its decision in Bender and held that “the failure of
police to inform a suspect of an attorney’s efforts to contact him does not invalidate an otherwise
‘voluntary, knowing, and intelligent’ Miranda waiver.” Id. at 249.

        Because the trial court determined that suppression of defendant’s written and oral
statements was required solely on the basis of Bender, which has since been overruled, we
reverse the trial court’s order suppressing defendant’s statements.4 Although Tanner requires
reversal of the trial court’s suppression order, it does not resolve the admissibility of defendant’s
statements. As indicated, the Supreme Court in Tanner held that “the failure of police to inform
a suspect of an attorney’s efforts to contact him does not invalidate an otherwise ‘voluntary,
knowing, and intelligent’ Miranda waiver.” Tanner, 496 Mich at 249 (emphasis added). Thus, it
must be determined whether defendant’s Miranda waiver was “otherwise voluntary, knowing,
and intelligent. In Tanner, 496 Mich at 209, the Supreme Court looked to the two-part test
established in Moran, 475 US at 421:

              First, the relinquishment of the right must have been “voluntary,” in the
       sense that it was the product of a free and deliberate choice rather than
       intimidation, coercion or deception. Second, the waiver must have been made
       with a full awareness of both the nature of the right being abandoned and the
       consequences of the decision to abandon it. Only if the “totality of the
       circumstances surrounding the interrogation” reveal both an uncoerced choice and
       the requisite level of comprehension may a court properly conclude that the
       Miranda rights have been waived.



4
  Given our decision, it is unnecessary to address the prosecutor’s arguments that the trial court
erred in determining that Bender was applicable, or that defendant was not subjected to a
custodial interrogation.


                                                -5-
The analysis must be bifurcated to inquire whether the waiver was voluntary, and whether the
waiver was knowing and intelligent. People v Tierney, 266 Mich App 687, 707; 703 NW2d 204
(2005).

         We note that although the trial court relied on Bender to hold that defendant’s statements
were not voluntary, the Supreme Court in Bender did not hold that the failure to inform the
defendants of their attorneys’ attempts to contact them affected the voluntariness of their
statements. Rather, the failure to impart this information affected only whether the waiver of
their rights to remain silent and to counsel were knowingly and intelligently made. Bender, 452
Mich at 605, 614. Indeed, the Court in Bender agreed that because there was no evidence of
police coercion, “neither defendant’s statement was involuntary, and thus need not be suppressed
for that reason.” Id. at 604.

        In Tanner, 496 Mich at 247, our Supreme Court explained that Miranda warnings
“provide a suspect with the necessary information both to apprehend these rights and to make an
intelligent and knowing waiver of the rights if he chooses.” The record discloses that defendant
was advised of his Miranda rights before the police interview, and that he signed a written
certification acknowledging that he could have an attorney at any time, that he could use the
phone free of charge to call an attorney, that an attorney would be provided if he could not afford
one, that he could stop the interview at any time, and that the interrogating officer could be
called upon to testify regarding the interview. Defendant did not challenge this evidence in the
trial court. Moreover, the trial court found that the police “conscientiously adhered to the verbal
formula of the Miranda decision” in advising defendant of his rights, and defendant does not
challenge that finding on appeal. Apart from the attorney contact issue, the trial court never
identified any basis for finding that defendant’s Miranda waiver was not knowingly and
intelligently made. In addition, defendant has not offered, either below or on appeal, any other
reason for finding that his Miranda waiver was not knowingly and intelligently made. The
parties dispute, however, whether defendant’s Miranda waiver and subsequent police statements
were voluntarily made.

        Although this Court reviews a trial court’s determination of voluntariness de novo,
People v Eliason, 300 Mich App 293, 304; 833 NW2d 357 (2013), the trial court’s assessment of
the credibility of the witnesses and the weight accorded to the evidence is given deference.
People v Ryan, 295 Mich App 388, 396; 819 NW2d 55 (2012). The trial court’s factual findings
are reviewed for clear error and will be affirmed unless this Court is left with a definite and firm
conviction that a mistake was made. People v Gipson, 287 Mich App 261, 264; 787 NW2d 126
(2010).

        To determine whether a statement is voluntary, the police conduct must be examined.
Tierney, 266 Mich App at 707. “[W]hether a waiver of Miranda rights is voluntary depends on
the absence of police coercion.” People v Daoud, 462 Mich 621, 635; 614 NW2d 152 (2000).
The prosecutor bears the burden of proving voluntariness by a preponderance of the evidence.
Id. at 634. In determining voluntariness, a court should examine the totality of the following
relevant circumstances: the age of the accused; his education or intelligence level; his prior
experience with the police; the duration and intensity of the questioning; the length of the
detention before the statement; the lack of any advice of constitutional rights; the delay in
bringing the defendant before a magistrate; the health of the accused; the deprivation of food,

                                                -6-
sleep, or medical attention for the accused; any abuse of the accused; and any threatened abuse
of the accused. People v Cipriano, 431 Mich 315, 334; 429 NW2d 781 (1988); Ryan, 295 Mich
App at 396-397; Tierney, 266 Mich App at 708. These factors present an objective standard for
concluding whether Miranda rights were validly waived. Daoud, 462 Mich at 634. No single
factor is conclusive. People v Sexton (After Remand), 461 Mich 746, 753; 609 NW2d 822
(2000). The ultimate test of admissibility addresses whether the totality of the circumstances
involving the elicitation of the confession or statement indicates that it was freely and voluntarily
made. Cipriano, 431 Mich at 334; Ryan, 295 Mich App at 397.

        Although the trial court purported to consider the totality of the circumstances, it did not
discuss any factor other than the failure to notify defendant that an attorney was attempting to
contact him. Defendant argues that the coercive circumstances leading up to his police interview
and his lack of sleep rendered his statements involuntary. Conflicting testimony was presented
regarding how much sleep defendant had before the interview and the extent to which a lack of
sleep may have affected defendant’s ability to freely and voluntarily waive his Miranda rights.
Conflicting testimony was also presented regarding the circumstances of defendant’s
confinement at his home before he was taken for the interview, including whether he was
segregated from his mother or prohibited from communicating with her, and the reason for his
removal from the home and placement in a police vehicle before he was taken for the interview.
The trial court did not render any factual findings regarding these circumstances, or the extent to
which they may have affected defendant’s ability to freely and voluntarily waive his Miranda
rights.

       In Tanner, the Supreme Court reversed the trial court’s order suppressing the defendant’s
statements because it was based solely on the failure of the police to inform the defendant of an
attorney’s efforts to contact him. Although the Court held that the failure to impart such
information does not invalidate an otherwise voluntary, knowing, and intelligent Miranda
waiver, it did not affirmatively determine whether the defendant’s statements were otherwise
voluntary, knowing, and intelligent. Instead, it reversed the trial court’s suppression order and
remanded the case to the trial court for further proceedings. Tanner, 496 Mich at 256-257. We
conclude that this same remedy is appropriate in this case. “Determination of the issue of
voluntariness and resolution of the facts with respect to which there is conflicting testimony are
decisions to be made initially by the trial court.” People v White, 401 Mich 482, 494; 257 NW2d
912 (1977). Because there is conflicting testimony regarding the circumstances surrounding
defendant’s statements, and the trial court did not render findings of fact or determine the
voluntariness of defendant’s statements in light of the totality of the other relevant
circumstances, we remand this case to the trial court for a determination of whether defendant’s
statements were voluntary.

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.

                                                              /s/ Mark T. Boonstra
                                                              /s/ David H. Sawyer
                                                              /s/ Peter D. O’Connell



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