Motion to suppress; Custodial statements; Validity of a Miranda waiver; People v Gipson; Invocation of the right to counsel; People v Tierney; Jury trial waiver; People v Cook; Compliance with MCR 6.402(B); Admission of preliminary exam testimony; Unavailable witness; MRE 804(a)(2) & (b)(1); Opportunity to fully develop the witness’s testimony during the preliminary exam; People v Farquharson; People v Vera; Confrontation Clause; People v Garland

The court held that the trial court did not err in denying defendant’s motion to suppress his custodial statements because he “knowingly and voluntarily waived his rights in both interviews.” It also did not err in accepting his jury trial waiver, or in determining that the complainant was unavailable and admitting her preliminary exam testimony. Finally, there was no violation of the Confrontation Clause. Thus, the court affirmed defendant’s CSC I and kidnapping convictions. In his motion to suppress, he challenged the admissibility of statements he made during his polygraph exam and a police interview. The court concluded the record clearly showed that “in both instances, defendant initiated contact with law enforcement and was properly advised of and waived his rights under Miranda.” The police detectives involved in the interview did not observe “any indicia of impairment or distress that would have affected defendant’s capacity to waive his rights, and” he did not assert any diminished capacity. As to the jury trial waiver, the “trial court adhered to the procedural requirements set forth in MCR 6.402(B) when it examined defendant” about waiving his right. He did not identify any deficiency in its inquiry. As to the admission of the complainant’s preliminary exam testimony, the court held that under the circumstances, the trial court properly concluded she was unavailable. The complainant acknowledged she received the “order to appear but nonetheless persisted in her refusal to testify.” Defendant contended that he did not have “an adequate opportunity to fully develop” her testimony during the preliminary exam “because his original counsel was newly appointed and had not yet received discovery.” But he failed to “identify any specific portions of the complainant’s preliminary examination testimony that would have been subject to more robust cross-examination had discovery been available.” The court noted that her testimony addressed the charged offenses, “and defendant had the opportunity and motive to subject her testimony to cross-examination.” Thus, he had “an ‘interest of substantially similar intensity in proving or disproving’” her testimony. Lastly, “because the witness was unavailable within the meaning of MRE 804(a)(2), and defendant was afforded a prior opportunity for cross-examination, the requirements of the Confrontation Clause were satisfied.”