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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v

UNPUBLISHED February 7, 1997

No. 188113 Oakland Circuit Court LC No. 95-137977

DAMIEN DRAPER, Defendant-Appellee.

Before: Young, P.J., and O'Connell and W.J. Nykamp,* JJ. PER CURIAM. Defendant is charged with first-degree felony murder, MCL 750.316; MSA 28.548 and first degree child abuse, MCL 750.136b(2); MSA 28.331(2)(2) stemming from the death of a five year-old child who was under his care. During interrogation, defendant made incriminating statements to the police. Defendant moved to have the statements suppressed claiming that the police had violated his Miranda1 rights by continuing to question defendant after he asserted his right to remain silent. After holding a Walker2 hearing, the trial court suppressed defendant's statement, holding that defendant had unequivocally asserted his right to remain silent, and that the police, by continuing to question defendant, violated Miranda's procedural safeguards. Plaintiff now appeals by leave granted. We reverse. The prosecution first claims that defendant's initial statement regarding his right to remain silent is ambiguous, and consequently, the police lawfully sought clarification of the statement. We agree. This Court must give deference to the trial court's findings at a suppression hearing. People v Cheatham, 453 Mich 1, 29; 551 NW2d 355 (1996). Even when engaging in de novo review of the entire record, this Court will not disturb a trial court's factual findings regarding a voluntary, knowing and intelligent waiver of Miranda rights unless that ruling is found to be clearly erroneous. Id., 30; People v White, 401 Mich 482; 257 NW2d 912 (1977). A finding is clearly erroneous if it leaves this Court with a definite and firm conviction that a mistake has been made. People v Kvam, 160 Mich App 189, 196, 408 NW2d 71 (1987). * Circuit judge, sitting on the Court of Appeals by assignment. -1

After reviewing the record, including the actual tape recording of the police questioning which is challenged here, this Court is persuaded that the trial court clearly erred in suppressing defendant's statement. The Fifth Amendment to the United States Constitution prohibits the government from compelling a defendant to testify against himself. US Const, Am V. This protection has been applied to the States through the application of the Fourteenth Amendment. US Const, Am IV; Malloy v Hogan, 378 US 1; 84 S Ct 1489; 12 L Ed 2d 653 (1964). In addition, the Michigan Constitution affords defendants a corresponding state constitutional right to be free from compelled self-incrimination. Mich Const, art 1,

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