            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED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.

CAMERON, P.J. (concurring).

       I join the majority opinion, but I write separately to provide further guidance to the trial
court concerning the issue of whether defendant validly waived his Fifth Amendment right to
remain silent.

         A statement obtained from a defendant during a custodial interrogation is admissible only
if the defendant “voluntarily, knowingly and intelligently” waived his Fifth Amendment rights.
Miranda v Arizona, 384 US 436, 475; 86 S Ct 1602; 16 L Ed 2d 694 (1966). “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.” Moran v Burbine, 475 US 412, 421; 106 S Ct 1135; 89 L Ed 2d 410 (1986),
citing Fare v Michael C, 442 US 707, 725; 99 S Ct 2560; 61 L Ed 2d 197 (1979). The
dispositive inquiry is “whether the warnings reasonably ‘conve[y] to [a suspect] his rights as
required by Miranda.’ ” Duckworth v Eagan, 492 US 195, 203; 109 S Ct 2875; 106 L Ed 2d 166
(1989), citing California v Prysock, 453 US 355, 361; 101 S Ct 2806; 69 L Ed 2d 696 (1981).

        In this case, the trial court emphasized that Detective Thomas Freeman failed to read
aloud the contents of the waiver section on the advice-of-rights-form. However, Miranda does
not require that the police read a statement of waiver before custodial interrogation. Rather,
Miranda requires that the suspect “be warned prior to any questioning that he has the right to
remain silent, that anything he says can be used against him in a court of law, that he has the
right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed
for him prior to any questioning if he so desires.” Miranda, 384 US at 479. Accordingly,



                                                -1-
Detective Freeman’s failure to read the waiver provision to defendant did not necessarily
constitute a violation of Miranda.

        Furthermore, I disagree with the trial court that the Miranda waiver in this case was, as a
matter of law, constitutionally deficient because (1) Detective Freeman did not read the waiver to
defendant and (2) defendant seems to have not read the waiver that he voluntarily signed. To be
sure, these are important factors for the trial court to consider. But in my judgment, they begin,
not end the analysis. It is well established that the waiver of one’s Fifth Amendment rights must
be knowingly and voluntarily given. But Miranda does not require an explicit statement by a
defendant waiving his rights. People v Matthews, 22 Mich App 619, 626, 630-631; 178 NW2d
94 (1970). Rather, an “implicit waiver . . . is sufficient to admit a suspect’s statement into
evidence.” Berghuis v Thompkins, 560 US 370, 382, 384; 130 S Ct 2250; 176 L Ed 2d 1098
(2010). As noted in North Carolina v Butler, 441 US 369, 373; 99 S Ct 1755; 60 L Ed 2d 286
(1979),

                An express written or oral statement of waiver of the right to remain silent
       or of the right to counsel is usually strong proof of the validity of that waiver, but
       is not inevitably either necessary or sufficient to establish waiver. The question is
       not one of form, but rather whether the defendant in fact knowingly and
       voluntarily waived the rights delineated in the Miranda case. . . . The courts must
       presume that a defendant did not waive his rights; the prosecution’s burden is
       great; but in at least some cases waiver can be clearly inferred from the actions
       and words of the person interrogated.

        Accordingly, if “the prosecution shows that a Miranda warning was given and that it was
understood by the accused, an accused’s uncoerced statement establishes an implied waiver of
the right to remain silent.” Berghuis, 560 US at 384. The Supreme Court further clarified its
position by stating that “the law can presume that an individual who, with a full understanding of
his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to
relinquish the protection those rights afford.” Id. at 385. Thus, in the event that the trial court
must determine on remand whether defendant knowingly and intelligently waived his rights, the
trial court’s determination should not be based solely on whether defendant read the advice-of-
rights-form before he signed it. Rather, the trial court must consider the totality of the
circumstances, including the fact that defendant signed the acknowledgment form after he was
read his Miranda warnings. See People v Snider, 239 Mich App 393, 417; 608 NW2d 502
(2000).



                                                             /s/ Thomas C. Cameron




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