                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     July 28, 2016
                Plaintiff-Appellant,

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

                Defendant-Appellee.


Before: GADOLA, P.J., and SERVITTO and SHAPIRO, JJ.

PER CURIAM.

         Defendant was charged with two counts of armed robbery, MCL 750.529, and one count
of conspiracy to commit armed robbery, MCL 750.157a; MCL 750.529. Defendant moved to
suppress his statement to the police and, at the conclusion of a Walker1 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 remanded the case.2 On        remand,
the trial court again granted defendant’s motion to suppress, and the prosecution thereafter filed a
second application for leave to appeal with this Court. This Court held the prosecution’s
application in abeyance and directed the trial court to reconsider and articulate its factual
findings concerning whether “defendant’s waiver of his rights under Miranda v Arizona, 384 US
436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), was voluntary, knowing and intelligent.”3 On
December 16, 2015, the trial court issued its resulting opinion and again granted defendant’s
motion to suppress. This Court thereafter removed the prosecution’s application for leave to
appeal from abeyance and the prosecutor now appeals by leave granted.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 People v Aaron Wade, unpublished opinion per curiam of the Court of Appeals, issued May 12,
2015 (Docket No. 324413).
3
 People v Aaron Wade, unpublished order of the Court of Appeals, entered November 24, 2015
(Docket No. 329015).
4
  People v Aaron Wade, unpublished order of the Court of Appeals, entered January 12, 2016
(Docket No. 329015).



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        This case arises from a robbery of an individual that took place at a gas station in Detroit.
Defendant was eventually arrested (along with two others) for the crime, and was thereafter
interviewed by Detroit Police Officer Jonathan Parnell. While in custody and being interviewed
by Officer Parnell, defendant signed a Miranda5 waiver advising him of his rights and confessed
to his involvement in the crime. Officer Parnell wrote a statement recording defendant’s
confession, which defendant initialed and signed. The prosecution then charged defendant with
armed robbery and conspiracy to commit armed robbery.

        Defendant made a motion in the trial court to suppress his statement to police, arguing
that it was not voluntarily, knowingly, or intelligently given.6 The trial court held a Walker
hearing to determine if defendant’s statement should be suppressed and considered reports and
testimony from two experts, Dr. Judith S. Shazer and Dr. Norman S. Miller. Both experts
interviewed defendant and concluded that he had mental deficiencies 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 heavily on their opinions, the trial
court granted defendant’s motion to suppress the statement on October 10, 2014, for the first
time. On two separate remands, the trial court again suppressed defendant’s statement.

        The prosecutor now again argues that the trial court erred when 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 did not voluntarily waive his
Miranda rights, as the totality of the circumstances supported a finding that defendant’s waiver
was voluntary. The prosecutor also argues that the trial court erred 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 interrogation and instead “erroneously relied
solely on the competency evaluations when determining whether defendant knowingly and
intelligently waived his Miranda rights.” We agree.

        A trial court’s determination that a waiver was knowingly, intelligently, 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 comprehension, 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 raised by the prosecution. In an
April 16, 2014 motion, the prosecutor filed a motion for a competency exam, requesting that the
court order defendant to undergo an examination to determine whether he was competent to
make a knowing and intelligent waiver of his Miranda rights. Although this Court is aware of no
provision for a competency examination in this situation, the trial court nevertheless referred
defendant to the Center for Forensic 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 Psychiatry’s determination, and
defendant subsequently filed his motion to suppress his statements.



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355 (1996). Thus, this Court must review the entire record, but will not disturb the factual
findings of the trial court concerning a knowing and intelligent 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, based 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 compelled 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 procedural 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 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. 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 was 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 all 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 self-determination critically impaired.” People v Givans, 227
Mich App 113, 121; 575 NW2d 84 (1997).

         To determine whether a defendant’s statement was voluntary, the court considers the
totality of the circumstances, including: [1] the age of the accused; [2] his lack of education or
his intelligence level; [3] the extent of his previous experience with the police; [4] the repeated
and prolonged nature of the questioning; [5] the length of the detention of the accused before he
gave the statement in question; [6] the lack of any advice to the 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, intoxicated or drugged, or in ill health
when he gave the statement; [9] whether the accused was deprived of food, sleep, or medical
attention; [10] whether the accused 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] defendant’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 that renders him susceptible to
coercion does not render the waiver involuntary absent evidence that the police exploited the
deficiency. Cheatham, 453 Mich at 15-17; Fike, 228 Mich App at 182.



                                                -3-
        In our May 2015 opinion, another panel of this Court found that the trial court, in its
October 10, 2014 ruling to suppress defendant’s statement, improperly analyzed whether
defendant’s waiver was voluntary, and failed to “resolve the conflict between defendant’s
statement to Miller, that the police threatened him with 25 years in prison if he did not cooperate,
with his statement to Shazer, that the police had not threatened or mistreated him, and Sergeant
Parnell’s testimony that he never made such a threat.” Wade, unpub at 3. This Court determined
that a finding regarding this alleged police coercion was necessary 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 conflict and made no factual findings
regarding whether defendant was coerced by the police into waiving his Miranda rights.
Because “the voluntariness prong cannot be resolved in [a] defendant’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 susceptible to coercion does not render the
waiver involuntary absent evidence that the police exploited the deficiency, Cheatham, 453 Mich
at 25-27, the trial court erred when it failed to make a factual finding regarding police coercion
and whether the police exploited defendant’s low intelligence.7

        In its December 16, 2015 opinion on remand, instead of examining the conduct by the
police, and making a finding as to the claim of coercion, the trial court determined that
defendant’s waiver was involuntary because defendant did not understand 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 not a finding of coercion, but of 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 render a confession involuntary.” Id.
at 15-16.

        Moreover, in ruling that defendant’s waiver was involuntary, the 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 witness concerning police coercion would thus likely be
inadmissible as hearsay. The trial court also failed to address 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 questioning did not occur over a prolonged
period of time, and the fact that defendant was not injured, intoxicated, drugged, in ill health,



                                                -4-
heavily in favor of a finding that defendant’s waiver was voluntary. For example, the trial court
indicated that defendant was 19 years old at the time of the interrogation, 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 statement. Similarly, the findings of
facts by the trial court that defendant was not injured, intoxicated, drugged, in ill health, deprived
of food, sleep, or medical attention, and was not physically abused 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 finding regarding whether the police coerced defendant into waiving
his Miranda rights by exploiting his mental deficiencies. There is, in fact, no evidence on the
record that any coercion occurred. Additionally, the majority of the Cipriano factors weighed
heavily in favor of finding that defendant’s waiver was voluntary and defendant’s mental
deficiencies, standing alone, were an insufficient basis on which to find defendant’s waiver was
involuntary. Thus, the trial court erred when it determined on this record that defendant’s waiver
was involuntary. See Fike, 228 Mich App at 182 (finding “a deficiency in the defendant that is
not exploited by the police cannot annul the voluntariness of a confession unless there is
evidence of police coercion.”).

        “While the voluntariness prong of the inquiry is determined solely 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 understanding, irrespective of police
behavior.” Daoud, 462 Mich at 636. “To waive rights intelligently and knowingly, one must at
least understand basically what those rights encompass and minimally what their waiver will
entail. The mental state that is necessary to validly waive Miranda rights involves being
cognizant at all times of the State’s intention to use one’s statements 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 defendant “[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 they are only two factors to be
considered among the total circumstances that a court must assess in determining whether a
defendant possesses the level of comprehension necessary to waive Miranda. Id. at 35-36, 40-
43.

         In determining whether defendant knowingly and intelligently waived his Miranda rights,
the trial court found that Sergeant Parnell’s testimony, that defendant 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 determined that the prosecution failed to
prove by a preponderance of the evidence that defendant’s statement was knowingly and
intelligently made. Thus, the trial court essentially made the same finding it did in October when

deprived of food, sleep, or medical attention, was not physically abused, or threatened with
abuse.



                                                 -5-
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 whether defendant understood these Miranda concepts,” as “waiver
and [a] defendant’s competence to waive rights are legal, not psychological, 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 disability], 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 involves an inquiry
       into the suspect’s level of understanding, this can only be done by examining the
       objective circumstances surrounding the waiver. Defendant told Miller and
       Shazer that the police asked him to write a statement and that he refused,
       demonstrating knowledge of his right to remain silent and of the fact that the
       police intended to use the requested statement against him. Defendant also
       admittedly signed the waiver and confession. Even in the case of a mentally
       impaired defendant, a written waiver in particular is strong evidence that the
       waiver is valid, as is defendant’s acknowledgement to Miller and Shazer that he
       did not ask the police any questions concerning his rights or the signed
       confession.     According to Miller’s and Shazer’s reports, defendant also
       understood key concepts in the legal case against him, including the charges, that
       he has to assist his attorney, and that the judge and jury decide his fate. The jury
       finds him guilty or not guilty, and the judge sentences him. Defendant also
       understood that he was facing the possibility of a lengthy prison sentence. This
       knowledge supports a finding of competency to waive Miranda. In addition, the
       trial court also failed to determine whether the police had read defendant his
       rights as he told Miller, or whether they simply gave him a copy of the rights
       notification and directed him to “try his best” to read it himself 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 these facts surrounding the
interrogation or explain 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 defendant his Miranda rights, the trial
court still concluded that he did not understand the rights. This is especially significant because
Dr. Shazer’s conclusion regarding defendant’s competence depended on how the Miranda rights
“were presented and reviewed with him.” Dr. Shazer concluded that if defendant simply read the
rights himself he would have been unable to understand them, but if the police also read him the
rights and explained them, he could have been able to understand them and possibly competently
waive his Miranda rights. Thus, the trial court improperly analyzed whether defendant’s waiver
was knowing and intelligent by failing to consider the “total circumstances.” As a result, the trial



                                                 -6-
court’s decision is unsupported by the evidence when properly considered, and is therefore,
clearly erroneous.

        Clearly, the trial court in this case misconstrues the test for 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 expert 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 distinct prongs of the waiver test and
analyzing the relevant factors necessary to make a proper determination as to whether defendant
did, in fact, (1) voluntarily and (2) knowingly and intelligently 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 therefore reverse and remand to a
different judge.

         We reverse the trial court’s order granting defendant’s motion to suppress and we remand
to the trial court, before a different judge, for further proceedings. On remand, the trial court has
the discretion to permit the parties to supplement the record as to whether defendant’s waiver of
his Miranda rights was voluntary, knowing and intelligent. We do not retain jurisdiction.



                                                              /s/ Michael F. Gadola
                                                              /s/ Deborah A. Servitto
                                                              /s/ Douglas B. Shapiro




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