People v. Cheatham

551 N.W.2d 355 (1996) 453 Mich. 1

PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Willie C. CHEATHAM, Defendant-Appellee.

No. 102201, Calendar No. 13.

Supreme Court of Michigan.

Argued March 6, 1996. Decided July 30, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, Detroit, for the people.

Gerald S. Surowiec, Farmington Hills, for the defendant.

Krause & Zambon, P.C. by Tonya L. Krause, Grand Rapids, for the Criminal Defense Attorneys of Michigan.

BOYLE, Justice.

We granted leave in this case to determine whether the state has carried its burden of establishing that defendant validly waived his Miranda^[1] rights. There is no dispute that the waiver was voluntary. The question presented is whether the waiver was "knowing and intelligent." We conclude that the state has fulfilled its burden of proving that defendant sufficiently understood the warnings given to him and that his subsequent waiver was valid. Thus, we would reverse the decision of the Court of Appeals.

I

Defendant Willie Cheatham and codefendant Joseph Stringer were jointly tried on first-degree murder^[2] and felony-firearm^[3] charges. The two defendants had separate juries who heard different evidence and reached different outcomes. Stringer was acquitted on the murder charge, but convicted of possession of a firearm during the commission of a felony; defendant was convicted of the lesser crime of second-degree murder^[4] and felony-firearm. Among the critical pieces of evidence heard by defendant's jury, but not by Stringer's jury, was defendant's statement admitting his presence at the murder scene and acknowledging that he threw a gun into an alleyway.

The charges stem from a murder in the City of Detroit on October 26, 1991. About 9:30 p.m., the police were summoned to a house where they discovered the decedent, Dewone Ridley, lying on the floor with three gunshot wounds.

A short distance away from the house where Ridley was discovered, the police were investigating an automobile accident in which a car had run into a building. The police found Stringer slumped over the steering wheel of the car, unconscious, with bullet wounds of the chest and leg, and with a .45 caliber pistol near his feet. Further down the block from the accident, the police observed defendant with blood on his head and inquired whether he had been in the car. Defendant responded that he had, and the police, after sending him to the hospital, took him into custody. During a patdown search, five empty .38 caliber shells were found in defendant's pocket.

While in custody, defendant gave two slightly different statements to the police. After being advised of and waiving his Miranda rights, defendant in his first statement said that Stringer had offered to give him a ride home and he accepted the offer. On the way, Stringer stopped at a house and got out of the car; defendant stayed in the car. While waiting in the car, defendant heard a door being kicked in, which was quickly followed by the sound of gunshots. Shortly thereafter, Stringer returned to the car with blood on his leg and a .45 caliber gun in his hand. Defendant stated that he did not have a gun.

In his second statement, again after being properly informed of and waiving his Miranda rights, defendant repeated that Stringer was giving him a ride home and had stopped at a house on the way. Stringer got out of the car with a .45 caliber pistol in his hand and headed toward the house. Defendant then heard a door being kicked in and shots being fired. Contrary to his previous statement, defendant in this statement claimed to have gotten out of the car at this point and walked onto the porch of the house. As he was standing on the porch, defendant saw Stringer shoot Ridley three times. Defendant returned to the car, and a few seconds later Stringer, with blood on his leg, got into the car and drove toward the hospital. Before reaching the hospital, Stringer lost control and the car hit a building. Defendant struck his head on the windshield during the accident, but was able to get out of the car and throw the .38 caliber revolver he was carrying into an alley. Defendant said that he threw his gun into the alley because he had been arrested before with a gun and was afraid that he would have to go back to jail.

Before trial, defendant sought to have both statements suppressed.^[5] At the suppression hearing, Dr. Steven Miller, a forensic psychologist, testified that he had examined defendant. Defendant had a history of being in special education classes and had dropped out of school in the ninth grade. Defendant had told Miller that he no prior contact with the police and that he could not read or write. On the basis of several psychological tests, Miller concluded that defendant has an IQ of sixty-two and that he did not believe defendant was competent to waive his Miranda rights.

At the suppression hearing, defendant testified that at the time he gave his statements he did not know what it meant to be "silent," or what the word "attorney" meant. Defendant did agree, however, that he knew he did not have to tell the police anything, that he wanted to tell the police what happened, that the officers had informed him of his Miranda rights, and that he told the officers he understood his rights.

The police officer who questioned defendant the second time, Sergeant Arlie Lovier, testified that he did not have any problems communicating with defendant and that it appeared defendant understood what he was saying. Lovier stated that, after learning defendant was unable to read, he read defendant his Miranda rights. After reading each right, he asked defendant to place his initials next to the right if he understood what the right meant. Defendant initialed each right and signed the statement at the end, agreeing that he had been informed of and understood his rights.

At the conclusion of the suppression hearing, the trial judge concluded that there was no coercion on the part of the police and that defendant had not been forthright with Miller when he claimed he had no previous contact with law enforcement.^[6] The trial judge further found that defendant's confession was wholly voluntary and that the only issue was whether defendant understood his rights. Although noting that defendant was intellectually limited and could not read, the judge concluded that his understanding of the Miranda rights was sufficient for a valid waiver.

On appeal, the Court of Appeals disagreed with the trial judge's determination regarding defendant's cognitive abilities. The Court, citing People v. Garwood, 205 Mich. App. 553, 517 N.W.2d 843 (1994), found that, regardless of the lack of coercive police conduct, defendant did not have the intellectual ability to understand his rights and thus his waiver was invalid and his confession should have been suppressed.^[7]

The prosecutor sought leave to appeal, and we granted the application on October 10, 1995. 450 Mich. 873, 539 N.W.2d 506.

II

A

The Fifth Amendment^[8] of the United States Constitution guarantees that the government cannot compel a defendant in a criminal case to testify against himself.^[9] This protection has been applied to the states through the Due Process Clause of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). In addition, Art. 1, § 17 of the Michigan Constitution affords defendants a corresponding state constitutional right to be free from compelled self-incrimination.^[10]

The wording of the Michigan Constitution granting protection from compelled self-incrimination is identical to the Fifth Amendment protection. Recently, this Court examined the relationship between the Fifth Amendment and Art. 1, § 17 in People v. Wright, 441 Mich. 140, 490 N.W.2d 351 (1992), but could not reach a consensus regarding that relationship. We do not face the issue that separated the Court in Wright, and there is no need in this case to construe the protection against self-incrimination found in the Michigan Constitution differently from the identical federal guarantee.^[11] On the facts of this case, if defendant's Fifth Amendment right to be free from compelled self-incrimination was not violated, neither was a corresponding right under Art. 1, § 17 of the Michigan Constitution.

B

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966), the United States Supreme Court created a set of prophylactic safeguards to insure protection of the Fifth Amendment right to be free from compelled self-incrimination during custodial interrogation.^[12] The stated goal of Miranda is to protect against the inherently coercive nature of custodial interrogation. Id. at 467, 86 S.Ct. at 1624.

Miranda protects defendants against governmental coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that. [Colorado v. Connelly, 479 U.S. 157, 170, 107 S.Ct. 515, 523, 93 L.Ed.2d 473 (1986).]

In an attempt to dissipate the coercion found to be inherent in custodial interrogation, thus protecting a defendants Fifth Amendment right, the Miranda Court created the familiar litany:

To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, ... [h]e must 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 questioning if he so desires. [Id. at 478-479, 86 S.Ct. at 1630.]

The United States Supreme Court, both in Miranda and in its progeny, has repeatedly stated that the warnings delineated in Miranda are not constitutionally mandated. In Miranda, the Court acknowledged that the warnings it created were not constitutionally required when it invited the Congress or the states to create alternatives^[13] for protecting the Fifth Amendment guarantee:

It is impossible for us to foresee the potential alternatives for protecting the privilege which might be devised by Congress or the States in the exercise of their creative rule-making capacities. Therefore we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted. Our decision in no way creates a constitutional straightjacket which will handicap sound efforts at reform, nor is it intended to have this effect. [Id. at 467, 86 S.Ct. at 1624.]

Decisions by the Supreme Court after Miranda explicitly reinforce that "[t]he ... Miranda warnings ... are `not themselves rights protected by the Constitution but [are] instead measures to insure that the [suspect's] right against compulsory self-incrimination [i]s protected.'" New York v. Quarles, 467 U.S. 649, 654, 104 S.Ct. 2626, 2630, 81 L.Ed.2d 550 (1984), quoting Michigan v. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357, 2364, 41 L.Ed.2d 182 (1974). See also Oregon v. Elstad, 470 U.S. 298, 306, 105 S.Ct. 1285, 1291, 84 L.Ed.2d 222 (1985); Moran v. Burbine, 475 U.S. 412, 426, 106 S.Ct. 1135, 1143-44, 89 L.Ed.2d 410 (1986). Although a suspect who is questioned while in custody must be informed of the right to remain silent and the right to have an attorney present during interrogation, these rights are not created in the Fifth Amendment. Rather, the holding of Miranda is the doctrinal foundation of a claim that a confession is not admissible if it is a product of the inherent coercion the Court found present in custodial interrogation.

III

To admit a confession in its case in chief, the state bears the burden of proving that the confession was voluntarily given by the defendant, thereby fulfilling the due process guarantee of the Fourteenth Amendment. Connelly, supra. In addition, if the confession was the result of custodial interrogation, the state must prove that the police properly informed the defendant of his Miranda rights and obtained a valid waiver.

The Miranda Court did not foreclose the possibility that, after the police administered the warnings and advice set forth in the opinion, a suspect might choose, for whatever reason, to forgo the benefits provided in the Miranda litany. The Court chose to apply the well-established standard for waiver of constitutional rights set forth in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), to in-custody interrogation. In establishing a stringent waiver requirement, the Court determined that in order for the police to show that a suspect had elected to abandon the protections Miranda affords, there must be evidence of a voluntary, knowing, and intelligent waiver.^[14]Id. at 444, 86 S.Ct. at 1612.

As noted in Miranda, clarified in Moran, supra, and reaffirmed in Colorado v. Spring, 479 U.S. 564, 573, 107 S.Ct. 851, 857, 93 L.Ed.2d 954 (1987), whether a "waiver is coerced `has two distinct dimensions.'"

First, the relinquishment of the right must have been voluntary in the sense that is 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. [Moran, supra at 421, 106 S.Ct. at 1141.]

As explained more fully in Moran, a waiver is valid as a matter of law if the 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." Id. at 422,106 S.Ct. at 1141.

In Edwards v. Arizona, 451 U.S. 477, 478, 101 S.Ct. 1880, 1881-82, 68 L.Ed.2d 378 (1981), the defendant was arrested on January 19, 1976, and read his Miranda rights. After being informed of his rights, the defendant stated that he understood his rights and wanted to make a statement. Midway through the questioning, however, the defendant invoked his right to counsel and questioning ceased. The next morning, the police returned to ask the defendant more questions and a guard at the jail told him "he had" to talk with the officers. The defendant was again advised of his Miranda rights, and he agreed to make a statement.

Before trial, the defendant moved to suppress his statement, contending that, after he had invoked his right to counsel, the police could not return to question him at a later time. The trial court refused to suppress the statement, concluding that the waiver was voluntary, and the defendant was convicted.

On appeal, the Arizona Supreme Court found a valid waiver solely on the basis that the waiver was voluntary. The United States Supreme Court rejected this analysis, concluding that the waiver also had to be knowing and intelligent under the "totality of the circumstances" and that the failure to establish that the waiver was knowing and intelligent rendered the Arizona Supreme Court's decision infirm.^[15]Id. at 482-483, 86 S.Ct. at 1632-1633.

In Connelly, supra, the Court addressed whether a confession caused by mental illness was an involuntary confession for purposes of the Fourteenth Amendment due process analysis. The Court concluded that, absent police coercion, a defendant's mental state alone can never render a confession involuntary. Id. at 164, 107 S.Ct. at 520.

The defendant in Connelly approached a Denver police officer and stated that he had murdered someone. The officer immediately informed the defendant of his Miranda rights, which the defendant stated he understood and wanted to waive. Another officer arrived on the scene and also informed the defendant of his rights; again, the defendant claimed to understand his rights, but still wanted to talk about the murder. The defendant then gave a detailed description of the murder to the police and pointed out where the murder had taken place. The defendant was placed in custody and held overnight. The following morning the defendant appeared visibly disoriented, gave confusing answers, and stated that "voices" had told him to come to Denver to confess. The defendant was sent to a state hospital, where he was found incompetent to stand trial for a period of time.

When the defendant regained competency and was scheduled for trial, defense counsel filed a motion to suppress the defendant's statement, alleging that the confession was involuntary because it was not the result of a free and rational choice. The trial court suppressed the confession, and the Colorado Supreme Court affirmed the trial court's decision. The prosecutor appealed to the United States Supreme Court, and the lower court decision was reversed. The Supreme Court concluded that the police had not engaged in any coercive behavior, that absent coercion a confession could not be involuntary, and that a deficiency in the defendant that is not exploited by the police cannot vitiate the voluntariness of the confession. The Court stated:

[W]hile mental condition is surely relevant to an individual's susceptibility to police coercion, mere examination of the confessant's state of mind can never conclude the due process inquiry. [Id. at 165, 107 S.Ct. at 521.]

The focus in Connelly was solely on police action and how that related to any weakness in the defendant.

Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law. [Id. at 164, 107 S.Ct. at 520].

Connelly clearly eliminated any subjective inquiry with regard to the voluntary prong of the waiver inquiry. Importantly, for purposes of the present inquiry, the Court also stated that the standard for determining whether a waiver is voluntary for Miranda purposes is the same standard for assessing whether a confession is voluntary under the Fourteenth Amendment due process inquiry.

There is obviously no reason to require more in the way of a "voluntariness" inquiry in the Miranda waiver context than in the Fourteenth Amendment confession context. [Id. at 169-170, 107 S.Ct. at 523.]

The prosecutor argues that the logic of examining police behavior and requiring more than a subjectively focused inquiry seems equally applicable to the knowing and intelligent prong of the Miranda inquiry. However, slightly more than one month after Connelly, the Supreme Court released Spring, and in dicta cited the test from Moran. Contrary to the strong language the Court used in Connelly to establish that improper police behavior is necessary to render a confession involuntary, the test articulated in Moran and quoted in Spring appears to focus only on the knowledge of the accused irrespective of improper police behavior.

In some respects, it is questionable whether the focus of the Court in Spring was a subjective examination of the suspect's state of mind or whether, consistent with Connelly, police behavior must play some role in determining whether a suspect knowingly and intelligently waived the Miranda protections. After citing the language of Moran, the Court in Spring stated:

The Miranda warnings ensure that a waiver of these rights is knowing and intelligent by requiring that the suspect be fully advised of this constitutional privilege including the critical advice that whatever he chooses to say may be used as evidence against him. [Id. at 574, 107 S.Ct. at 858 (emphasis added).]

A reasonable interpretation of this language could lead to the conclusion that police need only inform a suspect of his rights in order for a subsequent waiver to be knowing and intelligent. Additionally, the entire discussion in Spring regarding whether the defendant made a knowing and intelligent waiver of his rights is dicta because the Supreme Court subsequently stated:

In this case there is no allegation that Spring failed to understand the basic privilege guaranteed by the Fifth Amendment. Nor is there any allegation that he misunderstood the consequences of speaking freely to the law enforcement officials. [Id. at 575,107 S.Ct. at 858.]

However, given the incongruity between the clear language and logic of Connelly and the dicta in Spring, courts have been left to question whether the knowing and intelligent prong of the waiver analysis is a wholly subjective inquiry that focuses only on the suspect's post hoc claims regarding the warnings. On the basis of Connelly, the prosecutor argues that a wholly subjective inquiry into whether a waiver was knowing and intelligent, without reference to any misconduct on the part of the police, would fail for the same reason that police misconduct is necessary to establish that a waiver was not voluntary. If Miranda's stated goal is to eliminate the inherently coercive nature of station house interrogation, then there is no justification for excluding voluntary statements given during custodial interrogation after the police have apprised the defendant of his Miranda rights, and the defendant appears to understand those rights. Excluding otherwise validly obtained confessions on the basis that the defendant subjectively did not understand his rights, although there were no signs indicating any degree of confusion, creates the same problems the Court identified in Connelly.^[16] Requiring courts to exclude a confession when the defendant later claims he misunderstood his rights would impose "a far-reaching requirement that courts must divine a defendant's motivation for speaking or acting as he did even though there be no claim that governmental conduct coerced his decision." Connelly, supra at 165-166, 107 S.Ct. at 521. Moreover, the focus on police behavior conforms with the goal of a prophylactic exclusionary rule:

The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very lest negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of those particular investigating officers, or in such conduct, the courts hope to instill in their future counterparts, a greater degree of care toward the right of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force. [Michigan v. Tucker, supra at 447, 94 S.Ct. at 2365.]

The prosecutor argued that, as in Connelly, suppressing defendant's statements in this case would serve no deterrent "purpose in enforcing constitutional guarantees." Connelly, supra at 166,107 S.Ct. at 521.

Miranda, if nothing else, has the "virtue of informing police and prosecutors with specificity ... what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are admissible." Fare v. Michael C, 442 U.S. 707, 718, 99 S.Ct. 2560, 2568, 61 L.Ed.2d 197 (1979). This virtue is lost when confessions are suppressed in situations where the police properly administer the warnings required by Miranda and by all external indications obtain a valid waiver. The United States Supreme Court has recognized that in certain situations, the benefits afforded by Miranda are outweighed by the detrimental consequences of excluding evidence obtained in violation of those protections. New York v. Quarles (public safety exception.) Excluding confessions where all objective indications illustrate that the defendant understands the warnings and elects to waive them would seem to be one of those situations. If the police inform the defendant of his Miranda rights, and there is no evidence that the police knew or should have known that the defendant did not comprehend those rights, the rationale of Miranda would seem to dictate that any statements voluntarily made after that point should be admissible.^[17] In these circumstances, suppressing a confession serves no purpose. There is nothing more the police could do, nor is there any objectionable police behavior.^[18]

A

Suppressing an otherwise valid confession on the basis of the defendant's belated contention that he really did not understand the rights he was forgoing forces the Court to make "sweeping inquiries into the state of mind of a criminal defendant who has confessed, inquiries quite divorced from any coercion brought to bear on the defendant by the State."^[19]Connelly, supra at 167, 107 S.Ct. at 521. However, we are not persuaded that the Supreme Court has clearly foreclosed that inquiry.

The federal circuits that have acknowledged the conflict between the language in Spring and the logic of Connelly have uniformly concluded that, although perhaps inconsistent, the knowing and voluntary prong of the waiver inquiry seems to ignore police action and focus solely on the suspect's understanding. See United States v. Bradshaw, 290 U.S.App.D.C. 129, 133, 935 F.2d 295 (1991); Derrick v. Peterson, 924 F.2d 813 (C.A.9, 1990); Miller v. Dugger, 838 F.2d 1530 (C.A.11,1988).

In Derrick v. Peterson, Derrick, a sixteen year old, was taken into custody as a suspect in the murder of his parents. After the police informed Derrick of his Miranda rights, he stated "that he understood his rights, that he had been advised of them numerous times ... and was quite well aware of what that procedure was and his right to counsel." Id. at 816. After waiving his rights, Derrick proceeded to confess to murdering his parents.

Before trial, Derrick's counsel filed a motion to suppress his confession. At the suppression hearing, two psychologists testified that Derrick had an IQ between sixty-two and seventy-four, and that, while Derrick probably could understand the words of the warning, there was serious doubt regarding whether he could understand the ramifications of giving a statement. Both psychologists also stated that defendant's previous arrests made a "substantial difference" in Derrick's ability to understand his rights. Id. The trial judge, who presided at the hearing, concluded that Derrick's statement was voluntary and that he knew what his rights were. Derrick was tried, and a jury subsequently convicted him of first-degree manslaughter and murder.

On appeal, Derrick again raised the admissibility of his confession, contending both that his waiver was involuntary and that it was not knowingly and intelligently made. The United States Court of Appeals for the Ninth Circuit first concluded that there was no police coercion involved and that the defendant's statement was voluntary. In addressing Derrick's claim that his waiver was not knowing and voluntary, the court examined the United States Supreme Court's decision in Connelly and stated:

While Connelly clearly holds that the "voluntariness" inquiry in the Miranda waiver context is equivalent to the voluntariness inquiry under the fourteenth amendment, it is not as clear whether an inspection of the "knowing" and "intelligent" prong of the Miranda waiver analysis is likewise rendered unnecessary by a conclusion that a confession is voluntary under the fourteenth amendment. [924 F.2d at 820.]

After noting the Supreme Court's citation in Spring of the waiver standard articulated in Moran, the court concluded that, "although a determination of voluntariness under the fourteenth amendment forecloses a similar inquiry in the Miranda waiver context, we must conduct a separate review of whether Derrick knowingly and intelligently waived his Miranda rights." Id. The Derrick court readily acknowledged, however, that such a result "as a matter of logic" is unsatisfactory. Id. at 820. The court observed that if examination of the confessant's mind alone never can establish a due process violation, it is anomalous that a waiver of Miranda rights can be invalidated solely on the basis of the confessant's claim that he did not understand these warnings. The court found such a reading illogical in that impermissible state action is required pursuant to the voluntary prong, but is apparently irrelevant with respect to the knowing and intelligent prong.^[20]

The court eventually concluded, however, that until the United States Supreme Court eliminates this tension, the bifurcated inquiry must continue. After examining the defendant's mental abilities and the facts surrounding the confession, the court held that Derrick knowingly and intelligently waived his rights.

Similarly, in Bradshaw, supra, the defendant robbed a bank and was arrested a few blocks away when a red dye packet that was included in the sack with the money exploded. After the police took the defendant into custody, he was properly informed, both in writing and orally, of his Miranda rights. After asking a few questions about his rights, the defendant stated that he understood the rights Miranda afforded him and he signed the waiver form. He then gave a statement admitting that he had robbed the bank.

Before trial, the defendant moved to suppress his confession, arguing that his history of mental illness and intoxication at the time of his arrest made it impossible for him to knowingly and intelligently waive his rights. The trial court concluded that a waiver is only invalid if there is some form of police coercion. Finding no coercion, the confession was not suppressed.

At trial, the defendant was convicted as charged. On appeal, he continued to argue that his confession was invalid because he did not have the mental capacity to knowingly and intelligently waive his rights.

The United States Court of Appeals for the District of Columbia extensively reviewed the United States Supreme Court's opinion in Connelly and noted the following:

To be sure, some of the reasoning in the section of Connelly dealing with the due process voluntariness standard could be applicable to our case as well. The Court, for example, observed that evidence should not be excluded unless suppression would deter future constitutional violations, see [479 U.S. at 166, 107 S.Ct. at 521]. Since the police may not know whether an individual does not or cannot understand Miranda warnings (the government claims here that the police were not aware of Bradshaw's illness), an argument could be made that in those circumstances, deterrence is inapposite. [Bradshaw, supra at 299.]

After identifying the potential applicability of the logic in Connelly, however, the Bradshaw court concluded that the language in Spring, reiterating that a waiver must be both voluntary and knowing, prohibited extending the Connelly analysis to the knowing and intelligent prong of the waiver inquiry. Thus, the court concluded that to be valid, a waiver must be voluntary and knowing and intelligent. Because the trial court had not made any findings regarding whether the defendant understood his rights, the case was remanded to the trial court to make that determination.

On the basis of the United States Supreme Court's opinion in Spring, the federal circuit courts have unanimously rejected the prosecutor's position that Connelly limited the entire waiver analysis—both the voluntary and knowing and intelligent prongs— to a wholly objective inquiry that focuses only on police behavior. The Court's opinion in Spring seems to assume, with no reference to Connelly, that the focus of the knowing and intelligent prong of the waiver analysis rests solely on the suspect's understanding. Thus, like the federal circuit courts that have examined this question after Connelly, we too must conclude that, until the United States Supreme Court clarifies the apparent inconsistency between the voluntary and knowing and intelligent prongs of the waiver analysis, a subjective inquiry into the suspect's level of understanding is required and must be assessed under the "totality of the circumstances," irrespective of police behavior.

IV

Proceeding on the premise that a "knowing and intelligent" waiver is required in situations where the confession is wholly voluntary, and there is no evidence of impermissible police conduct, we agree with the trial judge that defendant sufficiently understood his rights and that he could and did provide a valid waiver.

A

Whether a suspect has validly waived his Miranda rights depends in each case on the totality of the circumstances surrounding the interrogation. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); Fare, supra at 725, 99 S.Ct. at 2572. The totality of the circumstances approach

permits—indeed, it mandates—inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the [suspect's] age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. [Id.]

The burden is on the state to prove by a preponderance of the evidence that the suspect properly waived his rights. Connelly, supra at 168,107 S.Ct. at 522.

Defendant does not contend that his confession was involuntary, and his testimony at the suppression hearing clearly indicates a lack of coercion surrounding his confession. At the hearing, defendant stated that he wanted to tell the police what happened and that he did tell them.^[21] Defense counsel further reinforced that he was "not claiming that it was an involuntary statement."

Given that defendant's confession was voluntary, the critical inquiry in this case is the degree of understanding the accused must possess in order to provide a knowing and intelligent waiver of the rights Miranda affords. To knowingly waive Miranda rights, a suspect need not understand the ramifications and consequences of choosing to waive or exercise the rights that the police have properly explained to him.

[Miranda ] requires that the accused be advised of his rights so that he may make a rational decision, not necessarily the best one or one that would be reached only after long and painstaking deliberation. Indeed, it may be argued forcefully that a choice by a defendant to forego the presence of counsel at a police interrogation is almost invariably an unintelligent course of action. It is not in the sense of shrewdness that Miranda speaks of "intelligent" waiver but rather in the tenor that the individual must know of his available options before deciding what he thinks best suits his particular situation. [Collins v. Brierly, 492 F.2d 735, 738-739 (C.A.3, 1974).]

Lack of foresight is insufficient to render an otherwise proper waiver invalid. See Spring, supra at 574, 107 S.Ct. at 857-58; Elstad, supra at 316, 105 S.Ct. at 1296-97.

[T]he test is not whether [the defendant] made an intelligent decision in the sense that it was wise or smart to admit his participation in the crime, but whether his decision was made with the full understanding that he need say nothing at all and that he might then consult with a lawyer if he so desired. [United States v. Hall, 396 F.2d 841, 846 (C.A.4,1968).]

To establish a valid waiver, the state must present evidence sufficient to demonstrate that the accused understood that he did not have to speak, that he had the right to the presence of counsel, and that the state could use what he said in a later trial against him. Moran, supra at 423, 106 S.Ct. at 1141-42. "That is the meaning of intelligent waiver; that and no more." Harris v. Riddle, 551 F.2d 936, 939 (C.A.4,1977).^[22]

B

An appellate court must give deference to the trial court's findings at a suppression hearing. People v. Burrell, 417 Mich. 439, 448, 339 N.W.2d 403 (1983). Although engaging in de novo review of the entire record, see People v. Walker (On Rehearing), 374 Mich. 331, 338, 132 N.W.2d 87 (1965), this Court will not disturb a trial court's factual findings regarding a knowing and intelligent waiver of Miranda rights "unless that ruling is found to be clearly erroneous."^[23]Burrell, supra at 448, 339 N.W.2d 403. Credibility is crucial in determining a defendant's level of comprehension, and the trial judge is in the best position to make this assessment. After a thorough and independent review of the record, we conclude that the trial judge correctly determined that defendant knowingly and intelligently waived his rights.

C

Defendant's expert witness testified that defendant knew he did not have to talk and could remain silent, the first element of a knowing and intelligent waiver of Miranda rights under Moran. The trial court clearly disbelieved defendant's testimony and the record supports that conclusion. It is undisputed that the police officers who questioned defendant administered the required warnings, sought to insure that he understood each warning by inquiring after each warning whether he understood what the warning meant, and obtained an express written waiver before questioning him.

Defendant was informed of his Miranda rights at least twice. Because he indicated that he could not read, a second officer was brought into the room to verify that the first officer read each of the rights to defendant. After each right, defendant was asked whether he understood that particular right and answered that he did. He was then asked to place his initials in front of that right, which he did. An officer testified that defendant did not ask any questions about any rights, nor did the officers have any trouble communicating with him. As noted in Derrick, "[the] written waiver in particular is strong evidence that the waiver was valid." Id. at 824. Defendant provided appropriate answers in response to the officer's questions, and "[t]here is no evidence that, at the time the warnings were given and during the subsequent questioning, Defendant manifested expressly or by implication from [his] words and actions any lack of comprehension of what was said to [him] or of what was occurring." United States v. Marenghi, 896 F.Supp. 207, 219 (D.Me., 1995).

The psychologist who testified for defendant both at the suppression hearing and at trial, Dr. Steven Miller, concluded that defendant knew he did not have to talk and could be quiet.^[24] Defendant, however, professed that he did not remember being advised of his rights and that he only understood that he did not have to talk to the police after Dr. Miller explained that to him. On cross-examination the prosecutor asked defendant if he knew "what it means when somebody tells you that you do not have to answer any questions put to you?" Defendant first answered "no," but when questioned further, stated that he knew the prosecutor was currently questioning him and that he "might know" what a question is.^[25] When asked whether he knew what an attorney was from watching television, defendant answered that he only watched "TV now and then," and that, although he had seen "shows where they had court on television," he did not know which persons on those shows were attorneys.^[26] Considered in its entirety, the record clearly indicates that defendant was able to engage in a calculated attempt to testify about what he thought would benefit him at the suppression hearing: that he told the officers he could not read; that he could not remember whether he had been advised of his rights, both on this occasion and at the time of his previous arrest; and to deny that he understood any of the rights that were read to him. The waiver form indicates that defendant provided appropriate background information, including names and addresses of family members, phone numbers, date of birth, height, and weight. Finally, defendant answered in excess of one hundred questions put to him by his counsel and the prosecutor at the suppression hearing without ever indicating that he did not understand what was being asked.^[27] Despite the fact that Dr. Miller testified that he believed defendant was not competent to waive his Miranda rights,^[28] "[w]aiver and 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." State v. Cleary, 161 Vt. 403, 406, 641 A.2d 102 (1994).

Although defendant claims not to have known what an attorney was, he knew he had a right to have a lawyer present. Pursuant to Oregon v. Elstad, supra, a defendant need not know what services an attorney can provide, but merely that he has a right to the presence of a lawyer before making a statement. The purpose of appointing counsel is not to insure that the defendant's choice regarding waiver is wise, but to help dissipate coercion the United States Supreme Court has found present in custodial interrogation. See Grano, Confessions, Truth & the Law (Ann Arbor: The University Press, 1993), p. 170.

The record also indicates that defendant knew the police intended to use his statement against him, the third element of a knowing and intelligent waiver under Moran. First, defendant had been arrested previously for carrying a concealed weapon, a fact he chose not to tell the police in his first statement and that he never told Dr. Miller during their discussion.^[29] Second, he knew enough to dispose of his gun immediately after the car accident. Third, he deliberately chose not to tell the police that he had thrown the gun in the alley before his arrest because he did not want to go back to jail. This behavior illustrates that defendant knew the police could use any information he provided to his detriment and further supports the trial court's disbelief of defendant's testimony. His actions also indicate he had learned from his previous interaction with the police. As noted by the North Carolina Supreme Court, a defendant's previous experience with the police is "an important consideration in determining whether an inculpatory statement was made voluntarily and understandingly." State v. Fincher 309 N.C. 1, 20, 305 S.E.2d 685 (1983). Although other courts have found that past interaction with the police, in and of itself, may have little bearing on the validity of a waiver,^[30] if a defendant deliberately tailors his response to earlier actions with the police, there is sufficient evidence to conclude that the defendant understood his relationship with the police. It is not necessary for a defendant to know how the police could use his statement, simply that what he told them might help place him in jail.

D

Dr. Miller's evaluation indicated defendant had an IQ of sixty-two, which placed him at the low end of mild mental retardation.^[31] A defendant's IQ, however, is only one factor in the "totality of circumstances" a court must consider in assessing whether a defendant has the requisite level of comprehension.^[32] Low mental ability in and of itself is insufficient to establish that a defendant did not understand his rights. See Dunkins v. Thigpen, 854 F.2d 394, 399-400 (C.A.11, 1988); Cleary, supra. "[N]o single factor, such as IQ, is necessarily determinative in deciding whether a person was capable of knowingly and intelligently waiving ... the constitutional rights embraced in the Miranda rubric." Fairchild v. Lockhart, 744 F.Supp. 1429, 1453 (E.D.Ark., 1989).

An individual's IQ score is not dispositive in deciding whether an individual is mentally retarded, but only one element of a threepart inquiry. The generally accepted test for determining mental retardation is stated in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV):

The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, selfcare, home living, social/interpersonal skills, use of community resources, selfdirection, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). [American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (Washington, DC: American Psychiatric Ass'n, 1994), p. 39.]

The first two criteria require further explanation.^[33] An individual who has an IQ of less than seventy is typically classified as having significantly subaverage intellectual functioning. Id. Alluring as it is to grasp onto a quantifiable value when assessing a concept as amorphous as intelligence, and assuming that intelligence can be quantifiably measured, it is important to note that an IQ of seventy represents only a ninety-five percent certainty that an individual's IQ falls between sixty-five and seventy-five.^[34]Id. An individual's IQ should not be viewed as an exact number, but rather, as "one value within a probable band of IQs." Grossman, Classification in Mental Retardation (Washington, DC: American Association on Mental Deficiency, 1983), p. 24. Moreover, unlike interval scales involving equal units where the distance between each point on the scale is the same—the difference between five and ten is the equal to the difference between ten and fifteen—the same cannot be said for IQ values. Clarke, Clarke & Berg, Mental Deficiency The Changing Outlook, 4th ed. (New York: The Free Press, 1985), p. 61. An individual with an IQ of 100 is not twice as smart as an individual with an IQ of fifty. The most that can be said is that the individual with an IQ of 100 performed better on the test than did the individual with an IQ of fifty.

The fact that IQs are expressed as numbers increasing by 1 (110, 111, 112, etc.) or that the average IQ of a group is 97.56 gives the IQ an aura of precision it does not merit. [Id.]

Emphasis by courts solely on IQ in determining competency reinforces the misperception that there is one psychometric definition of intelligence that can be quantified in a single numeric figure.

In large part, legal treatment of retarded defendants has been distorted by the law's ignorance of exactly what mental retardation means. Virtually all cases dealing with this subject have simply recited a defendant's IQ, noted that it was below normal, and then stated that simply because the defendant might be stupider than the average person does not mean that he is incompetent.

These courts have adopted the common fallacy that mental retardation is defined by IQ scores. Actually, IQ is no more than a convenient numerical scale used to categorize degrees of mental aptitude. While certain categories at the lower end of the IQ scale have been assigned the classification "retarded," the scores themselves say little about a person's skills and aptitudes. [Mickenberg, Competency to stand trial and the mentally retarded defendant: The need for a multi-disciplinary solution to a multi-disciplinary problem, 17 Cal. W.L.R. 365, 390 (1981).]

By definition, an IQ below seventy alone is not sufficient to establish that an individual is mentally retarded.^[35] An individual must "show significant deficit in both measured intelligence and adaptive behavior...." Grossman, supra at 207. In the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), the American Psychiatric Association notes: "Mental Retardation would not be diagnosed in an individual with an IQ lower than 70 if there are no significant deficits or impairments in adaptive functioning."

Id. at 40. Adaptive functioning

refers to how effectively individuals cope with common life demands and how well they meet the standards of personal independence expected of someone in their particular age group, sociocultural background, and community setting. Id.

Typically, impairments in adaptive functioning are the only outwardly noticeable indicia that an individual may be mentally retarded, not a low IQ. Id.

The record in this case does not indicate that defendant presents any impairment in adaptive functioning that would indicate defendant may be mentally retarded. First, his answers to the questions initiated by the police were responsive and appropriate.

Second, Dr. Miller made the following observations in his report:

Grooming and hygiene were good. Facial expressions were normal and he spoke in a logical and coherent manner. Mood and affect were appropriate and congruent with the circumstances of the interview albeit constricted with indications of depression. He was oriented to person, place and personal relationship to reality.

Aside from a somewhat below average IQ, the record does not indicate defendant presented any impairments in adaptive functioning.

Once an individual is determined to have some level of mental retardation—i.e., an IQ below seventy, significant limitations in adaptive functioning in at least two areas, and onset before age eighteen—the degree of mental retardation is further defined. Depending on the level of mental impairment, the individual is classified as either mildly, moderately, severely, or profoundly retarded. DSM-IV, supra at 40. The following chart illustrates the generally accepted classification:

Mild Mental Retardation: IQ level 50-55 to approximately 70 Moderate Retardation: IQ level 35-40 to 50-55 Severe Mental Retardation: IQ level 20-25 to 35-40 Profound Mental Retardation: IQ level below 20-25 [DSM-IV, supra at 40.]

Assuming, arguendo, that defendant is mentally retarded to some degree, he would most likely be classified as mildly retarded.^[36] But like an IQ value of sixty-two, labeling someone as mildly retarded does not aid in understanding the skills and abilities of someone who falls within that category.^[37] Additional information about the attributes associated with individuals labeled as mildly retarded is necessary.

The DSM-IV provides the following explanation regarding the skills and characteristics generally associated with individuals who fall within the mild mental retardation category:

Mild Mental Retardation is roughly equivalent to what used to be referred to as the educational category of "educable." This group constitutes the largest segment (about 85%) of those with the disorder [mental retardation].... During their adult years, they usually achieve social and vocational skills adequate for minimum self-support, but may need supervision, guidance, and assistance, especially when under unusual social or economic stress. With appropriate supports, individuals with Mild Mental Retardation can usually live successfully in the community, either independently or in supervised settings. [Id. at 41.]

The American Association on Mental Deficiency expands and applies the explanation set forth in the DSM-IV, by providing the following examples of everyday activities mildly retarded individuals can accomplish:

Independent functioning: Exercises care for personal grooming, feeding bathing, toilet; may need health or personal care reminders; may need help in selection or purchase of clothing.

Physical: Goes about hometown (local neighborhood in city, campus at residential center) with ease, but cannot go to other towns alone without aid; can use bicycle, skis, ice skates, trampoline, or other equipment requiring good coordination.

Communication: Communicates complex verbal concepts and understand them; carries on everyday conversation, but cannot discuss abstract or philosophical concepts; uses telephone and communicates in writing for simple letter writing or orders but does not write about abstractions or important current events.

Social: Interacts cooperatively or competitively with others and initiates some group activities, primarily for social or recreational purposes; may belong to a local recreation group or church group, but not to civic organizations or groups of skilled persons (e.g., photography club, great books club); enjoys recreation (e.g., bowling dancing, TV, checkers) but either does not enjoy or is not competent at activities (e.g., chess, bridge, tennis) or hobbies requiring rapid, involved or complex planning and implementation.

Economic activity: Can be sent or go to several shops (without a note to shopkeepers) to purchase several items; can make change correctly, but may not use banking facilities; may earn living but has difficulty handling money without guidance.

Occupation: Prepares simple meals; performs everyday household tasks (cleaning, dusting, dishes, laundry); as an adult can engage in semiskilled or simple skilled job not requiring complex thinking or judgment.

Self-direction: Initiates most of own activities; is conscientious about work and assumes much responsibility but needs guidance on jobs requiring responsibility for important decisions (health care, care of others, complicated occupational activity). [Grossman, supra at 207-208.]

Clearly, the mentally retarded population is as heterogenous as the nonmentally retarded and blanket statements regarding this group of persons are no more appropriate than any stereotype. In determining whether to suppress a confession, a trial judge should examine all available and relevant information including the aforementioned criteria.

E

Conceding that there is a level of mental deficiency so severe that under no circumstances would a defendant be able to knowingly waive his rights, we observe that short of this level of incapacity, a defendant's mental ability of necessity must be only one factor in the "totality of circumstances" inquiry. To hold otherwise would effectively immunize the mentally limited from interrogation and preclude the socially beneficial use of confessions,^[38] despite the absence of any indication of overreaching by the police. Creating a lower threshold for a knowing and intelligent waiver than that which we have articulated today would preclude a defendant who has sufficient mental ability to participate in a crime, dispose of evidence, be tried for the crime, elect to testify at trial, and face potential life incarceration, from taking responsibility for his actions by giving a statement to the police explaining what happened.

V

At the end of the suppression hearing, the trial judge concluded that there is no issue of coercion regarding defendant's statement, that defendant wanted to tell the police what happened, and that he sufficiently understood his rights.

There is no issue of voluntariness at all. The only question is whether he understood the rights. I notice in the questioning here of the defendant, the defendant was, in my opinion, making himself look a little more helpless than what he might be. For example, yes, I understood the questions, and then he added a little bit when asked if he could—he was asked the question about his educational background. He understood that term, and had no difficulty answering when ask[ed] by the attorneys. He indicated his rights were given to him twice by two different people, and they were read to him, and in my opinion, even though he is intellectually limited and cannot read, I think he understood his rights adequately.

The conclusions reached are not clearly erroneous. Thus, we would reverse the opinion of the Court of Appeals and would remand for further proceedings consistent with this opinion.

BRICKLEY, C.J., and RILEY, J., concurred with BOYLE, J.

WEAVER, Justice (concurring).

I concur in all but part III of the majority opinion.

MICHAEL F. CAVANAGH, Justice (concurring in part).

On the basis of the evidence in the record presented to this Court, I agree with the result reached in regard to the only issue actually before us: whether defendant's waiver of his Fifth Amendment rights was "knowing and intelligent" and therefore valid. More specifically, I agree with my brother Mallett's statement that "[t]he trial court did not clearly err in finding that Mr. Cheatham did in fact understand that he could keep silent, that if he did say anything the state could use whatever he said as evidence against him, and that he could have an attorney to represent him." Op., p. 358. In fact, I join in the entirety of Justice Mallett's opinion, but still must write separately to distance myself from the lead opinion's unnecessary discussion and decision of issues not actually presented in this appeal.

I

A

The lead opinion notes that "[d]efendant claims that his waiver was not knowing and intelligent under both the Fifth Amendment of the United States Constitution and Art. 1, § 17 of the Michigan Constitution, but does not provide any reason or analysis for a different construction [of Art. 1, § 17]." Op., p. 360, n. 11. Accordingly, the lead opinion's assertions that "there is no need in this case to construe the protection against self-incrimination found in the Michigan Constitution differently from the identical federal guarantee," and that "[o]n the facts of this case, if defendant's Fifth Amendment right to be free from compelled self-incrimination was not violated, neither was a corresponding right under Art. 1, § 17 of the Michigan Constitution," Op., p. 360, are mere dicta and have no precedential authority for future cases. See Goolsby v. Detroit, 419 Mich. 651, 655, n. 1, 358 N.W.2d 856 (1984).

Furthermore, the lead opinion's attempt to immutably link our interpretation of the Michigan Constitution to the United States Supreme Court's interpretation of analogous provisions of the federal constitution is, as a general rule, wholly unsupported by our case law. See People v. Bender and Zeigler, 452 Mich. 594, 613, 551 N.W.2d 71 (1996).

B

Also unnecessary to the analysis of this case is the lead opinion's discussion of the voluntariness prong of a Miranda waiver analysis. The lead opinion concedes, as it must, that "[t]here is no dispute that the waiver was voluntary," Op., p. 358, but then includes a tendentious survey of cases involving the voluntariness prong, ultimately conflating this prong with the "knowing and intelligent" prong.

The lead opinion acknowledges that "[a]s noted in Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ], clarified in Moran [v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) ], and reaffirmed in Colorado v. Spring, 479 U.S. 564, 573, 107 S.Ct. 851, 857, 93 L.Ed.2d 954 (1987), whether a `waiver is coerced "has two distinct dimensions."'" Op., p. 361. Then, however, this "reaffirm[ation]" is, according to the author of the lead opinion, magically transformed into dicta because the United States Supreme Court in Spring ultimately held that

"in this case there is no allegation that Spring failed to understand the basic privilege guaranteed by the Fifth Amendment. Nor is there any allegation that he misunderstood the consequences of speaking freely to the law enforcement officials." [Op., p. 363, quoting Spring, 479 U.S. at 575,107 S.Ct. at 858.]

Just because the Court in Spring concluded that the defendant's waiver was valid because it was knowing and intelligent certainly does not mean that the Court's enunciation of the relevant standard for making that determination is dicta. Quite the contrary, definition of the relevant standard of review before applying that standard to the facts of a case is an integral part of any competent appellate opinion, and certainly is part of the holding.

C

Limiting the constitutional protection served by the knowing and intelligent prong by superimposing Connelly's^[1]requirement of coercive police conduct before a waiver is found involuntary, the lead opinion muses that "given the incongruity between the clear language and logic of Connellyand the dicta inSpring, courts have been left to question whether the knowing and intelligent prong of the waiver analysis is a wholly subjective inquiry that focuses only on the suspect's post hoc claims regarding the warnings." Op., p. 363. Although ultimately "reject[ing] the prosecutor's position that Connelly limited the entire waiver analysis—both the voluntary and knowing and intelligent prongs—to a wholly objective inquiry that focuses only on police behavior," Op., p. 366, the lead opinion relies on selective citations of federal circuit court opinions to posit an alleged "inconsistency" between Connelly and Spring. In fact, this inconsistency does not exist.

In Miller v. Dugger, 838 F.2d 1530, 1535 (C.A.11, 1988), the court stated: "It is now clear, however, that the requirements of Miranda's prophylactic rules can diverge significantly from the force of the prohibition in the due process clause itself against the introduction of involuntary statements." This divergence is clear, of course, because Miranda is the case in which the "knowing and intelligent" prong of a waiver analysis was enunciated. "The prohibition against the introduction of involuntary statements long predates Miranda, and Miranda was not the first case in which the Supreme Court imposed rules on state courts to protect against the use of involuntary confessions." 838 F.2d at 1535. Miranda explained that effectuation of a suspect's right to "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" may be waived "provided the waiver is made voluntarily, knowingly and intelligently." 384 U.S. at 444, 86 S.Ct. at 1612.

The United States Court of Appeals for the Eleventh Circuit noted that "the Supreme Court in Connelly explained that `voluntariness' in the context of a Miranda waiver means the same thing as `voluntariness' in the due process context, i.e., freedom from official coercion.... The Supreme Court has stated explicitly, however, that a valid waiver of Miranda rights must not only be voluntary; it must also be intelligently made." 838 F.2d at 1538 (emphasis in original). The Eleventh Circuit relied on a preConnelly case, Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), as evidence of the irrefutably distinct prongs of a waiver inquiry: "The Supreme Court could not have stated more clearly that an uncounselled statement must be both voluntary and made after a knowing and intelligent waiver of the Miranda rights to be admissible." 838 F.2d at 1538 (citing Edwards, 451 U.S. at 483-484, 101 S.Ct. at 1884-85). The court ended its discussion of Connelly as follows: "We do not read the Connelly decision as demonstrating an intent by the Supreme Court to eliminate this distinction between voluntariness and knowing waivers." 838 F.2d at 1539. "The question of whether Connelly had intelligently waived his Miranda rights was not presented to the Supreme Court." Id. (emphasis in original).

In Derrick v. Peterson, 924 F.2d 813, 820 (C.A.9, 1990), the court, in a poorly reasoned opinion, selectively cited Connelly:

While Connelly clearly holds that the "voluntariness" inquiry in the Miranda waiver context is equivalent to the voluntariness inquiry under the fourteenth amendment, it is not as clear whether an inspection of the "knowing" and "intelligent" prong of the Miranda waiver analysis is likewise rendered unnecessary by a conclusion that a confession is voluntary under the fourteenth amendment. That is the burden of our next inquiry.

The Derrick court then finally acknowledged:

Whatever doubt remained after Connelly concerning the distinct nature of the knowing and intelligent prong of the waiver inquiry was removed by the Court's decision in Colorado v. Spring ... later that same term.

* * * * * *

Thus, in light of Spring, it is clear that, although a determination of voluntariness under the fourteenth amendment forecloses a similar inquiry in the Miranda waiver context, we must conduct a separate review of whether Derrick knowingly and intelligently waived his Miranda rights. [Id.]

And in United States v. Bradshaw, 290 U.S. App.D.C. 129, 134, 935 F.2d 295, 302 (1991), yet another federal appellate court acknowledged the irrefutable distinctness of the two prongs of a Miranda waiver analysis: "But any doubts we might have concerning Connelly's reach dissipate in light of the Court's subsequent decision in Colorado v. Spring ...."^[2] "We agree with the Ninth Circuit that this statement dispels any notion that a Miranda waiver must be caused by police misconduct to be deemed non-knowing." Id. (citing Derrick v. Peterson and Miller v. Dugger).

An attentive reading of Connelly shows that the Court was concerned solely with the voluntariness prong of a Miranda waiver. Keeping in mind that fact, and the fact that Connelly was decided after Fare v. Michael C, 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979), Edwards v. Arizona, and Moran v. Burbine, supra (among others, all of which unequivocally posit the discrete nature of the voluntariness inquiry from the knowing and intelligent inquiry), creating an "apparent inconsistency between the voluntary and knowing and intelligent prongs of the waiver analysis," op., p. 366, is an indefensible position. And more importantly, even if there were an arguable inconsistency or tension between the analysis of the voluntariness prong and the analysis of the knowing and intelligent prong, we would still be obligated to apply the unambiguous dictate of Colorado v. Spring, which "dispels any notion that a Miranda waiver must be caused by police misconduct to be deemed non-knowing." Bradshaw, supra at 300. However, I can find no such inconsistency or tension.

Before discussing the self-imposed confusion evidenced by portions of the Derrick and Bradshaw opinions,^[3] I would point out that it is logically inconsistent to even attempt to apply the notion of police coercion to an inquiry of what a suspect understood. "Coerce" means "to force; compel; to effect by force." Webster's New World Dictionary.

It is obvious, then, that "coerced" is an antonym of "voluntary" (and, of course, a synonym of "involuntary"). The relevance of coercion to a voluntariness inquiry is obvious and unmistakable. However, the concept of coercion or compulsion bears no relation, logically or otherwise, to a suspect's level of comprehension of the rights at issue. But, having said that, let us go on to examine the "logic" that led the Derrick and Bradshaw panels to see tension where none exists.

The lead opinion states:

In addressing Derrick's claim that his waiver was not knowing and voluntary, the court examined the United States Supreme Court's decision in Connelly and stated:

"While Connelly clearly holds that the `voluntariness' inquiry in the Miranda waiver context is equivalent to the voluntariness inquiry under the fourteenth amendment, it is not as clear whether an inspection of the `knowing' and `intelligent' prong of the Miranda waiver analysis is likewise rendered unnecessary by a conclusion that a confession is voluntary under the fourteenth amendment. [924 F.2d at 820.]"

After noting the Supreme Court's citation in Spring of the waiver standard articulated in Moran, the court concluded that, "although a determination of voluntariness under the fourteenth amendment forecloses a similar inquiry in the Miranda waiver context, we must conduct a separate review of whether Derrick knowingly and intelligently waived his Miranda rights." Id. [Op., p. 365.]

In fact, after quoting the excerpt from Spring—an excerpt that itself relies on quotations from the preConnelly opinions in Moran v. Burbine and Fare v. Michael C— what the Derrick court actually said was: "Thus, in light of Spring, it is clear that, although a determination of voluntariness under the fourteenth amendment forecloses a similar inquiry in the Miranda waiver context, we must conduct a separate review of whether Derrick knowingly and intelligently waived his Miranda rights." 924 F.2d at 820 (emphasis added).^[4]

The lead opinion also states: "The Derrick court readily acknowledged, however, that such a result `as a matter of logic' is unsatisfactory." Op., pp. 365-366. "[R]eadily acknowledged" is a risibly self-indulgent characterization; rather, the Derrick court gratuitously and, I suggest, erroneously theorized:

As a matter of logic this result is somewhat unsatisfactory. On the one hand, Connelly emphasizes that "mere examination of the confessant's state of mind can never conclude the due process inquiry." 479 U.S. at 165, 107 S.Ct. at 521.... Yet, in the Miranda context, the Court allows a waiver to be invalidated based only upon the confessant's state of mind—i.e. based only upon whether the waiver is knowing and intelligent. See Spring, 479 U.S. at 573, 107 S.Ct. at 856-57.... Thus, the Court requires that there be improper state action under the fourteenth amendment before a confession can be suppressed, but requires no such state action in the Miranda context, even though the constitutional provision underlying the Miranda warning—the fifth amendment—is applied to the states through that same fourteenth amendment.... See Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493-94, 12 L.Ed.2d 653 (1964) (incorporating fifth amendment's self-incrimination clause). [924 F.2d at 820-821.]

The error in this analysis results from the court's fallacious assumption of a complete unity between the determinative factors of the preMiranda Fourteenth Amendment due process analysis (which was concerned solely with coercive police conduct that affected the voluntariness of a suspect's confession)^[5] and the postMiranda waiver analysis (which requires analysis of two distinct prongs, only one of which—i.e., voluntariness—is logically, or in any other respect, related to coercive police practices). The Derrick court appears confused when it says that "the [Supreme] Court requires that there be improper state action under the Fourteenth Amendment before a confession can be suppressed, but requires no such state action in the Miranda context...." 924 F.2d at 821. In Connelly, wherein the Supreme Court reviewed the holding of the Colorado Supreme Court that Connelly's confession was involuntary under both the Fourteenth Amendment Due Process Clause and Miranda, the Court held that "coercive police activity is a necessary predicate to the finding that a confession is not `voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment," 479 U.S. at 167, 107 S.Ct. at 522, and that "[t]here is obviously no reason to require more in the way of a `voluntariness' inquiry in the Miranda waiver context than in the Fourteenth Amendment confession context." Id. at 169-170, 107 S.Ct. at 523. Unmistakably, then, coercive police conduct is as necessary to a finding of involuntariness under Miranda as it is under the substantive protection of the Fourteenth Amendment Due Process Clause. It is only with respect to the completely distinct "knowing and intelligent" prong of a Miranda waiver analysis—a prong never considered under the preMiranda due process analysis—that coercive police conduct is not required, either by logic or by law.

That brings me to the final aspect of the Derrick court's fabrication of a logical inconsistency: the notion that Miranda should be no more protective of a suspect's rights than is the Fourteenth Amendment Due Process Clause because that clause is the vehicle by which the protections of the Fifth Amendment are applicable to the states. Derrick, 924 F.2d at 821. The refutation of that assertion is not difficult.

Before the Fifth Amendment was incorporated into the Fourteenth, the only substantive protection afforded by the Fourteenth Amendment was the prohibition against coercive police conduct that rendered a suspect's confession (or other statement) involuntary and therefore inadmissible. But ever since Miranda, the Self-Incrimination Clause of the Fifth Amendment, which was incorporated into the Fourteenth Amendment in Malloy v. Hogan, supra, has been understood to require that a suspect's decision to waive his Fifth Amendment rights be both "voluntary" and "knowing and intelligent." As should be obvious, then, the substantive content of, and the substantive protections afforded by, the Fourteenth Amendment are greater after incorporation than they were before.

D

The lead opinion also mischaracterizes the relevant case law with regard to the specific issue of police conduct. It acknowledges that coercive police conduct is not a prerequisite for finding a Miranda waiver invalid under the knowing and intelligent prong, and therefore concludes that the knowing and intelligent prong requires a purely "subjective inquiry." Op., p. 366. This is not completely accurate.

Both prongs must be analyzed under the "totality of the circumstances surrounding the interrogation," and therefore any relevant police conduct would be equally applicable. The only clear-cut difference is that coercive police conduct is a sine qua non for a judicial finding of involuntariness; coercive conduct is only relevant to the concept of voluntariness. There is no requirement for evidence of police conduct of any particular sort to find a waiver invalid under the knowing and intelligent prong, but any police conduct that could have an effect on a suspect's requisite level of comprehension must be factored into the analysis. This, too, was clear before Connelly and Spring.

In Moran v. Burbine, the defendant argued that his "confessions must be suppressed because the police's failure to inform him of the attorney's telephone call deprived him of information essential to his ability to knowingly waive his Fifth Amendment rights." 475 U.S. at 421, 106 S.Ct. at 1140. In finding that the police's failure to inform the defendant of an attorney's attempt to contact him did not affect the defendant's "full awareness and comprehension of all the information Miranda requires the police to convey," the Supreme Court stated: "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." Id.,pp. 423-424, 106 S.Ct. at pp. 1142. And although Miranda originally required that suspects be given the specific warnings enunciated in that opinion, the Supreme Court has since held that the standard Miranda warnings are not constitutionally required. The initial judicial focus under the knowing and intelligent prong in such cases, therefore, is what information was (or was not) conveyed to the suspect, and how that information affected the suspect's comprehension of the guarantees of the Fifth Amendment. See Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985); New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984); Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). Though the ultimate focus for purposes of the knowing and intelligent prong remains on the level of the suspect's comprehension, it is clear that police conduct can be relevant, except, of course, coercive police conduct, which is logically and lexically unrelated to analysis of a suspect's comprehension.

E

The lead opinion also attempts to link the analyses of Connelly and Spring by focusing on the exclusionary rule. As a threshold matter, I would point out that any discussion of the exclusionary rule is unrelated to the actual case before us, and therefore mere dicta. The judgment in this case is that defendant's waiver was valid; obviously, then, the issue of exclusion is in no way implicated.

The lead opinion relies on the following excerpt from Bradshaw:

"To be sure, some of the reasoning in the section of Connelly dealing with the due process voluntariness standard could be applicable to our case as well. The Court, for example, observed that evidence should not be excluded unless suppression would deter future constitutional violations, see [479 U.S. at 166, 107 S.Ct. at 521]. Since the police may not know whether an individual does not or cannot understand Miranda warnings (the government claims here that the police were not aware of Bradshaw's illness), an argument could be made that in those circumstances deterrence is inapposite." Op., p. 366 (quoting Bradshaw, 290 U.S. App.D.C. at 133, 935 F.2d at 299).

First of all, this excerpt immediately follows the Bradshaw court's explicit acknowledgement of its understanding that police coercion is not and cannot be the focus of judicial inquiry under the knowing and intelligent prong. That by itself evidences the improbity of the lead opinion's reading of that case. But even more important is the obvious fact that deterrence of coercive police conduct is by definition inapposite to whether a Miranda waiver was invalid because it was not knowing and intelligent; this is a mere truism. However, if a suspect's Miranda waiver was not knowing and intelligent because of police conduct that "deprive[d] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them," Moran v. Burbine, 475 U.S. at 424, 106 S.Ct. at 1142, then deterrence would be directly apposite. And the most important fact in this regard is that deterrence is not the overarching consideration: the protection and vindication of constitutional rights is.

II

In sum, then, I join only the following parts of the lead opinion: I; IV(A), (B), (C) (except for the two references to the elements of a knowing and intelligent waiver "under Moran," Op., pp. 368, 369; the relevant case in this regard is Spring, not Moran), (E); and V.

MALLETT, Justice (concurring).

Because I agree that the defendant understood, albeit at a very basic level, the rights afforded him under Miranda,^[1] I agree with the result reached by the majority. The trial court did not clearly err in finding that Mr. Cheatham did in fact understand that he could keep silent, that if he did say anything the state could use whatever he said as evidence against him, and that he could have an attorney to represent him. I write separately to emphasize that the requirement that a waiver of Miranda rights be knowingly and intelligently made means that the officers securing the waiver must explain those rights in plain, simple English, or in non-English, or whatever may be required to assure that the individual waiving his rights truly understands.

This defendant, with an IQ suggestive of mild mental retardation, apparently did understand the nature and consequences of the rights waived. However, I am deeply troubled by the possibility that the decision we reach today could be interpreted as endorsing the standard Miranda litany as sufficient when securing a waiver from individuals with impaired or "below normal" mental abilities.

The court in United States v. Yunis, 273 U.S. App.D.C. 290, 859 F.2d 953 (1988), effectively explained the "knowing and intelligent" requirement in the context of a non-English-speaking defendant. In holding that the Arabic translation of the warnings was sufficient to apprise the suspect of his rights, the court emphasized that

as the Miranda decision itself suggests, the focus must be on the plain meaning of the required warnings. A defendant must comprehend, for example, that he really does not have to speak; he must recognize that anything he says actually will be used by the state against him. [Id]. at 301-302, 859 F.2d at 964-65 (emphasis added).]

I agree that the focus of inquiry must be on the plain meaning of the warnings and emphasize that the warnings must be plain. The validity of a waiver does not depend on a verbatim recitation of the Miranda litany, but rather depends on an actual understanding on the part of the individual of his Miranda rights and the consequences of waiving them. Colorado v. Spring, 479 U.S. 564, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987). While it is true that an officer can never definitively ascertain that an individual has actual understanding, the officer must use caution and engage in a good-faith effort when obtaining a waiver to assess the suspect's level of understanding. The officer must make an effort to ensure that the consequences of making an in-custody statement to the police are clearly understood.

LEVIN, Justice (dissenting).

I would affirm the decision of the Court of Appeals for the reasons stated in its unpublished opinion.^[1]

The Court of Appeals said that it was left with the definite and firm conviction that the trial court made a mistake in finding^[2] that Cheatham had knowingly waived his Miranda^[3] rights, and said:

The testimony at the suppression hearing overwhelmingly indicated that defendant did not have the intellectual ability to understand his rights. When asked at the hearing about his educational background, defendant did not respond by identifying which schools he had attended or what grade he had achieved. He simply stated that he could not read. When asked a question of any complexity, defendant's answers were unresponsive. Defendant testified that he did not understand the rights when they were read to him, although he indicated to the police officer otherwise. In addition, the uncontradicted testimony of the psychologist was that defendant had an IQ of 62, was mentally retarded and functionally illiterate. The psychologist testified that defendant would not have been able to understand the Miranda rights and that he could not competently waive them.

The police officers' testimony that defendant seemed to understand the Miranda rights is not enough, in the face of the psychologist's testimony to the contrary and defendant's demonstrated inability to understand complex questions, to support the trial court's finding that defendant understood and knowingly waived his Miranda rights. We conclude that the trial court erred in finding that defendant understood his rights and in failing to suppress defendant's statement at trial.

The admission of defendant's statement cannot be harmless error. Although defendant did not admit to shooting the victim, defendant acknowledged that he was present at the murder scene and further acknowledged that after the shooting he threw a .38 revolver into an alley. Evidence was introduced at trial that a bullet from that .38 revolver was found at the murder scene and spent shell casings from the same gun were found in his pocket.

Plaintiff argues that because there was no evidence of police coercion, defendant's statement was voluntary and there was not basis on which to suppress it, citing Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Plaintiff fails to appreciate the distinction between whether the waiver of defendant's Miranda rights was voluntary, an issue which cannot be resolved in defendant's favor absent some police coercion, Colorado v. Connelly, supra, and whether the otherwise voluntary waiver was knowing and intelligent. [People v. Garwood, 205 Mich. App. 553, 555, 517 N.W.2d 843 (1994) ]. A waiver which was not knowing and intelligent warrants suppression of the statement independent of any coercive police conduct. [Emphasis added.]

In Colorado v. Connelly, supra at 167, 107 S.Ct. at 521-22, cited by the Court of Appeals, the United States Supreme Court repeatedly referred to the "voluntariness" prong of the standard for determining whether Miranda rights were waived, but did not mention the "knowing" prong. Later in the same term, the Court, in Colorado v. Spring, 479 U.S. 564, 573, 107 S.Ct. 851, 857, 93 L.Ed.2d 954 (1987), recognized that both prongs of the analysis were applicable:

"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 both of 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." [Citation omitted.]

The Court went on in Spring to note that the confession in that case was voluntary, citing Connelly, before discussing whether the waiver of the "Fifth Amendment privilege was knowingly and intelligently made...." Id. at 574,107 S.Ct. at 857. The Court's analysis implies that a person who could not know could not waive his rights:

In this case there is no allegation that Spring failed to understand the basic privilege guaranteed by the Fifth Amendment. Nor is there any allegation that he misunderstood the consequences of speaking freely to the law enforcement officials. In sum, we think that the trial court was indisputably correct in finding that Spring's waiver was made knowingly and intelligently within the meaning of Miranda. [Id. at 575, 107 S.Ct. at 858.]

NOTES

[1] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

[2] M.C.L. § 750.316; M.S.A. § 28.548.

[3] M.C.L. § 750.227b; M.S.A. § 28.424(2).

[4] M.C.L. § 750.317; M.S.A. § 28.549.

[5] The testimony presented at the suppression hearing, which is summarized here, is set forth in detail later in the opinion.

[6] Defendant had previously been arrested for carrying a concealed weapon.

[7] Unpublished opinion per curiam, issued January 11, 1995 (Docket No. 155010).

[8] This case does not implicate the defendant's right to counsel under the Sixth Amendment of the United States Constitution or his corresponding state right under Const. 1963, Art. 1, § 20, because "that right attaches only at or after the initiation of adversary judicial proceedings by way of formal charge, preliminary hearing, indictment, information, or arraignment." People v. Wright, 441 Mich. 140, 173, 490 N.W.2d 351 (1992) (Riley, J., dissenting); Moran v. Burbine, 475 U.S. 412, 430, 106 S.Ct. 1135, 1145-46, 89 L.Ed.2d 410 (1986).

[9] The Fifth Amendment states:

No person ... shall be compelled in any Criminal Case to be a witness against himself....

[10] Const. 1963, Art. 1, § 17 states:

No person shall be compelled in any criminal case to be a witness against himself....

[11] Defendant claims that his waiver was not knowing and intelligent under both the Fifth Amendment of the United States Constitution and Art. 1, § 17 of the Michigan Constitution, but does not provide any reason or analysis for a different construction. See Sitz v. State Police Dep't, 443 Mich. 744, 506 N.W.2d 209 (1993).

[12] As Professor Grano notes in his recent book, contrary to a popular misconception that is perpetuated by imprecise language in judicial opinions:

The Fifth Amendment confers a right not to be compelled to answer questions; it does not confer a substantive or formal right of silence. Concededly, the former right does give rise to a right of silence in "the very weak sense" that a person has "a right to silence on every subject": a person who cannot lawfully be coerced into speaking can, of course remain silent. [Confessions, Truth, & the Law (Ann Arbor: The University Press, 1993), p. 142].

[13] The prosecutor has not offered an alternative to Miranda warnings—such as a videotaped confession—in this case, and we are not presented with the question whether such an alternative would fulfill the goals Miranda sought to fulfill.

[14] Clearly, the Court must have been referring only to waiver of rights created by Miranda because it is nonsensical to talk about waiving one's Fifth Amendment right not to be compelled to testify.

The inquiry in a case where a confession is challenged as having been elicited in an unconstitutional manner is, therefore, whether the behavior of the police amounted to compulsion of the defendant. Because of the nature of the right to be free from compulsion, it would be pointless to ask whether a defendant knew of it before he made a statement; no sane person would knowingly relinquish a right to be free of compulsion. [Schneckloth v. Bustamonte, 412 U.S. 218, 280-281, 93 S.Ct. 2041, 2075, 36 L.Ed.2d 854 (1973) (Marshal, J., dissenting).]

[15] Specifically the Court stated:

It is reasonably clear under our cases that waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case "upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused."

* * * * * *

Here, however sound the conclusion of the state courts as to the voluntariness of Edwards' admission may be, neither the trial court nor the Arizona Supreme Court undertook to focus on whether Edwards understood his right to counsel and intelligently and knowingly relinquished it. It is thus apparent that the decision below misunderstood the requirement for finding a valid waiver of the right to counsel, once invoked. [Id. at 482-484, 86 S.Ct. at 1632-33.]

[16] If volunteered statements are not banned by Miranda—a concept explicitly adopted in Miranda—then there must be something about the presumptively coercive nature of police interrogation that triggers Miranda protections. Thus, it would seem logical to look to external, objective police behavior, and if the police behavior does not exploit an apparent weakness in the defendant that the police knew or should have known of, then there should be no Miranda violation justifying exclusion of the evidence.

[17] The waiver standard is more stringent after the defendant states he would like to see an attorney.

[T]he Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have an attorney present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. [Edwards v. Arizona, supra at 484, 101 S.Ct. at 1884-85.]

This issue is not presented in this case, however, because defendant did not request counsel.

[18] Of course, a defendant's level of cognitive understanding is a factor in the objective inquiry of police behavior. A confession is validly suppressed where the police exploit an apparent mental deficiency in the defendant, or where a defendant's level of cognitive understanding is so low that the police knew or should have known that the person is not capable of understanding.

[19] Competency to stand trial is not equivalent to competency to waive Miranda warnings because there is a different focus in each inquiry. To waive Miranda warnings, there must be a voluntary relinquishment of a known right or privilege. In assessing whether a defendant is competent to stand trial, the focus is on the defendant's ability to aid in his defense. The latter inquiry presumes there is counsel appointed or retained to aid the defendant in his defense. This explains why there is a higher standard for waiver of Sixth Amendment rights.

[20] As explained by the court in Derrick:

Thus, [the United States Supreme Court] requires that there be improper state action under the fourteenth amendment before a confession can be suppressed, but requires no such state action in the Miranda context, even though the constitutional provision underlying the Miranda warning—the fifth amendment—is applied to the states through that same fourteenth amendment. [Id. at 821].

[21] The questioning was as follows:

Q. [Mr. Letho] And you actually did tell him a whole lot of stuff?

A. [Mr. Cheatham] I told him what happened.

Q. Told him what happened?

A. Yes.

Q. And you wanted to tell him what happened at that time?

A. Yes.

* * * * * *

Q. Okay. At that time like you say, you wanted to tell the police what happened, right?

A. Yes.

[22] Although we would add that a defendant must also comprehend that he has the right to the presence of counsel, the following statement from United States v. Yunis, 273 U.S. App.D.C. 290, 301-302, 859 F.2d 953 (1988), is helpful in explaining comprehension and the ability to give a valid waiver:

We conclude that, as the Miranda decision itself suggests, the focus must be on the plain meaning of the required warnings. A defendant must comprehend, for example, that he really does not have to speak; he must recognize that anything he says actually will be used by the state against him. But whether he fully appreciates the beneficial impact on his defense that silence may have—whether he fully understands the tactical advantage, in our system of justice, of not speaking—does not affect the validity of his waiver.

[23] As the United States Court of Appeals for the Seventh Circuit has so graphically explained, "To be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must ... strike us as wrong with the force of a five-week old, unrefrigerated dead fish." Parts & Electric Motors, Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (C.A.7, 1988).

[24] At the suppression hearing, Dr. Miller was questioned by the prosecutor, Mr. Letho:

Q. Now anyways, based on your conclusion, you state as to his understanding of his Constitutional Rights, he did seem to comprehend and not to say anything to the officers. However, beyond that, it is doubtful he could appreciate the scope of the intent of the rights to protect him from potentially incriminating himself. So in other words, he knew that he had a right not to talk, right?

A. When I asked him what that meant, he said that you don't have to say anything. You can be quiet.

[25] Q. [Mr. Letho ] You know what it means when somebody tells you that you do not have to answer any questions put to you?

A. [Defendant ] No.

Q. Am I asking you questions right now?

A. Yeah.

Q. So you know what a question is?

A. A question is when somebody is talking to you. I might know what it is.

Q. Pardon me?

A. I might know what it is, that someone talks to me.

Q. In other words, you know what a question is, when I ask you [a] question like I am now and you can give an answer?

A. Yeah, I might.

* * * * * *

Q. Then if somebody tells you any statement you make or anything you say can be used against you in the court, you can understand that, can't you.

A. A little bit.

[26] Q. [Mr. Letho] What does the attorney do?

A. [Defendant] Try the case for somebody.

Q. You knew that from watching TV and going to school, didn't you?

A. No, I just watch TV now and then.

Q. You saw shows where they had court on television, didn't you?

A. Yeah.

Q. And when you watched those kind of shows, you knew which people were attorney's, didn't you?

A. No.

[27] Although the Court of Appeals found that defendant's answers were "unresponsive," the evidence it cited were three answers to questions on cross-examination by the prosecutor. Viewed in context, these responses actually demonstrate that defendant understood the position he had taken in his statements, the claim he was making at the suppression hearing, and that he had the intellectual acumen to try to evade answers that would undermine those claims. Thus, when the prosecutor sought to impeach his claim that he did not know what an attorney was by suggesting that he knew it from watching TV, defendant answered, "No, I just watch TV now and then." When the prosecutor sought to establish that defendant knew he did not have to tell the police officers anything, defendant claimed he only knew that "[a]fter the doctor came and talked to me." Finally, defendant's answer to the question about the name of the person in the car with him is evidence that he was able to understand that, if he admitted on cross-examination that he knew the name of the codefendant, he would undermine the position he took in both statements that he merely accepted a ride from a comparative stranger. These responses support the conclusion that defendant had the cognitive ability to tailor his answers to what he perceived to be his own best interests. The responses may not have been sophisticated, but they were not unresponsive.

[28] Defense counsel Jeffrey Collins also questioned Dr. Miller:

Q. So in conclusion, your opinion was that he was not competent to waive his Miranda rights?

A. Yes.

[29] Q. [Mr. Collins] Were you aware of any juvenile criminal history?

A. [Dr. Miller] Mr. Cheatham denied any previous arrest record for juvenile or adult.

[30] See Smith v. Zant, 855 F.2d 712, 718 (C.A.11, 1988).

[31] Q.[Mr. Collins] Did you perform any other psychological testing?

A. [Dr. Miller] Yes. As I said, I gave him the full scale intelligence testing and verbal skills. He achieved a percentile of one percent, which means 99 percent of all those age groups scored better on that test than he did, and so he was in the lowest one percentile, and his score was 63, which is a score for mildly retarded. His performance score was one percentile, also 63, and it also indicated mild retardation, and the full scale score was 62. This was at the lower end of mild mentally [sic] retardation. It starts at 60 and goes to 69, and he was at 62.

[32] Courts have upheld waivers in cases in which the defendant's IQ is as low as fifty-one, Grayson v. State, 438 S.W.2d 553 (Tex.Crim.App., 1969), and fifty-seven, Twymon v. State, 358 So.2d 1072 (Ala.Crim.App., 1978), but other courts have excluded confessions in cases in which the defendant's IQ is as high as seventy-four. Commonwealth v. Reynolds, 300 Pa.Super. 143, 446 A.2d 270 (1982).

[33] Although the record does not definitively establish that the onset of defendant's condition occurred before age eighteen, we will assume that it did, given defendant's placement in special education classes throughout his schooling.

[34] The ninety-five percent confidence interval coincides with Dr. Miller's report that indicates defendant's IQ is between fifty-eight and sixtyeight.

[35] As noted by Clarke, Clarke, & Berger, supra at 69:

"Mental retardation" (like its progenitor, intelligence) is a general concept difficult to define precisely. It cannot be defined by IQ alone because low IQs can be a consequence of a particular test, the tester, the circumstances of testing and characteristics of the individual other than low intelligence (e.g. language handicap) acting alone or interacting to produce the low score.

[36] Dr. Miller's report reinforces this classification.

[37] Dr. Miller's assessment that defendant's test scores place him in the lowest one percentile of all persons of his age who take the test is not illuminating. "The prevalence rate of Mental Retardation has been estimated at approximately 1%." DSM-IV, p. 44. Therefore, Dr. Miller's comment only indicates that the test scores illustrate defendant is mentally retarded to some degree.

[38] Moran, supra at 426, 106 S.Ct. at 1143-44.

[1] Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

[2] The District of Columbia Circuit quoted the same excerpt from Spring as did the Ninth Circuit in Derrick, an excerpt in which the United States Supreme Court clearly demonstrated, by quoting from Moran v. Burbine and Fare v. Michael C, 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979), that it was not enunciating for the first time the two distinct dimensions of a Miranda waiver.

[3] Actually, as I subsequently discuss, the confusion was engendered by the Derrick court; the Bradshaw court uncritically parroted the Derrick court's confusion.

[4] And in eventually conceding that the bifurcated inquiry is mandated by binding United States Supreme Court case law, the Derrick court expressly acknowledged "that we are obligated to bifurcate the Miranda waiver analysis...." 924 F.2d at 821 (emphasis added).

[5] In Connelly, the Supreme Court explained that "coercive government misconduct was the catalyst for this Court's seminal confession case, Brown v. Mississippi, 297 U.S. 278, [56 S.Ct. 461, 80 L.Ed. 682] (1936)." 479 U.S. at 163, 107 S.Ct. at 519. In Brown, "police officers extracted confessions from the accused through brutal torture." Id. In addition to the preMiranda cases cited in Connelly, 479 U.S. at 164, n. 1, 107 S.Ct. at 520 n. 1, see Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961); Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960); Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959); Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949); Turner v. Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810 (1949); Harris v. South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815 (1949); Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945); Ward v. Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663 (1942).

[1] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

[1] People v. Cheatham, issued January 11, 1995 (Docket No. 155010).

[2] MCR 2.613(C); Tuttle v. Dep't of State Highways, 397 Mich. 44, 46, 243 N.W.2d 244 (1976).

[3] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).