(dissenting). I would affirm the decision of the Court of Appeals for the reasons stated in its unpublished opinion.1
*60The Court of Appeals said that it was left with the definite and firm conviction that the trial court made a mistake in finding2 that Cheatham had knowingly waived his Miranda3 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 complexify, 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 *61found 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 no basis on which to suppress it, citing Colorado v Connelly, 479 US 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 NW2d 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, 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 US 564, 573; 107 S Ct 851; 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.]
*62The 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. 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.]
People v Cheatham, issued January 11, 1995 (Docket No. 155010).
MCR 2.613(C); Tuttle v Dep’t of State Hwys, 397 Mich 44, 46; 243 NW2d 244 (1976).
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).