United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER CONDITIONALLY GRANTING THE PETITION FOR WRIT OF HABEAS CORPUS
MARIANNE O. BATTANI, District Judge.
James McKinney, ("Petitioner"), presently confined at the Lakeland Correctional Facility in Coldwater, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254.  In his application, filed by attorney Valerie R. Newman of the State Appellate Defender's Office, petitioner challenges his conviction for first-degree premeditated murder, M.C.L.A. 750.316(a); unlawfully driving away an automobile, M.C.L.A. 750.413; and felony firearm, M.C.L.A. 750.227b. For the reasons stated below, the application for writ of habeas corpus is CONDITIONALLY GRANTED.
On October 23, 2009, petitioner was arrested by the police in DeKalb County, Illinois during a traffic stop. Police searched the van that petitioner was driving and recovered two handguns, a magazine cartridge and a wallet belonging to the murder victim, James Harper. Petitioner was driving the victim's van when stopped. Petitioner had lived with the victim for a period of time. Petitioner had lived with the victim, performing chores for the victim in lieu of paying rent. The two men sometimes quarreled over the way in which petitioner did some of the jobs. There was no evidence, however, of any bad blood between the two men. Petitioner kept several guns in the basement of the victim's house, where he lived. One of the firearms that was recovered from the van had been used to kill the victim. (Tr. I, pp. 100-01, 105-09, 113-15, 143, 178, 180, 182, 203, 213, Tr. II, pp. 235-38, 41). Two detectives from the Hillsdale County Sheriff's Department came to Illinois and questioned petitioner about the victim, who was found dead from a gunshot to the head on October 24, 2009, the morning after the traffic stop. (Tr. I, p. 174).
Prior to questioning petitioner, Detective Hodshire of the Hillsdale County Sheriff's Department gave petitioner a form which advised him of his Miranda rights. Petitioner signed the form and Detective Hodshire began questioning him. ( Id., p. 141). During the interrogation, petitioner requested an attorney and in response, Detective Hodshire turned his questions towards the circumstances surrounding the victim's death. It was during this period of questioning that petitioner confessed to shooting the victim, but gave few details about a possible motive for the shooting. ( Id., pp. 92-96).
Prior to trial, petitioner's counsel moved to suppress petitioner's confession on the ground that it had been obtained after petitioner had invoked his right to counsel. Defense counsel argued that petitioner unequivocally requested counsel during the following exchange that took place during the interrogation:
Detective Hodshire: So, you know why I'm here to talk to you, right?
Mr. McKinney: Yeah, yeah.
Detective Hodshire: So, I'm here to get your side of the story of what happened and why. Okay. When we do investigations, we understand that things happen for certain reasons and some of those reasons we don't understand, in law enforcement, so that's why I wanted to talk with you today to get your side of the story of what happened.
Mr. McKinney: Well if you don't mind, I just as soon wait until I get a public defendant or whatever.
Detective Hodshire: Well that's fine, but like I said...
Mr. McKinney: We can talk over the other circumstances... Detective Hodshire: And that's what I wanted to talk over, the circumstances behind it. Do you understand what I mean? We understand that things happen for reasons that aren't specifically clear to us or family members and I know your mom is concerned about what is going on as we stopped over in Lenawee County and talked to your mom and I guess you haven't seen her in a while?
Mr. McKinney: No.
Petitioner shortly thereafter made an incriminating statement.
The Hillsdale County Circuit Court granted the motion to suppress, finding that petitioner's confession was obtained in violation of Miranda because Detective Hodshire continued to interrogate petitioner after he invoked his right to counsel.4 (See Petitioner's Appendix A, Excerpt Transcript at 9-11; and Appendix B, Interrogation Transcript at 41-42.).
The Jackson County Prosecutor filed an interlocutory appeal. The Michigan Court of Appeals upheld the trial court's suppression ruling. The Michigan Court of Appeals concluded that petitioner's statement, "I just as soon wait until I get a public defender, " was an unequivocal assertion of his right to counsel. People v. McKinney, No. 296455, 2010 WL 4226761, at *2 (Mich. Ct. App. Oct. 26, 2010). Because petitioner had asserted his right to counsel unequivocally, the Michigan Court of Appeals concluded that "it was incumbent upon the officer at this point to cease all questioning unless defendant subsequently was provided with counsel or until he reinitiate[d] conversation.'" Id . (internal quotation omitted). The Michigan Court of Appeals further concluded that Detective Hodshire's remarks following petitioner's invocation of his request for counsel amounted to impermissible continued interrogation:
What makes this case somewhat unusual is the fact that Officer Hodshire and defendant spoke over each other during defendant's invocation of his right to counsel, and the immediate statement thereafter. Nevertheless, when viewed in context, we agree with the trial court that defendant's statements made after he invoked his right to counsel must be suppressed. First, the officer's response to defendant's assertion of his right to counsel was not a statement related to ministerial or administrative concerns. More specifically, after the officer told defendant, "Well that's fine"-a seeming innocuous response-he continued with the phrase, "but like I said...." And although the parties dispute the meaning of this language, it is clear in context that the phrase, "but like I said, " was not a reference to defendant's vital statistics or "biographical data necessary to complete booking or pretrial services"
Second, the statement, "but like I said, " can only refer to the officer's previous statement that his purpose was to "get [defendant's] side of the story, " i.e., to continue the interrogation. Viewed in this manner, the officer's statement constituted continued interrogation because the police should have known that the statement was "reasonably likely to elicit an incriminating response from the suspect." Moreover, because defendant's concession to "talk about the other circumstances" was made only after the officer offered to continue the exchange, we conclude that it was the officer who reinitiated questioning rather than ...