Background
In 2007, a 13-year-old girl was abducted at gunpoint by Brandon McKean while she was walking to her brother’s home. McKean forced her into the backseat of a vehicle and, together with an unidentified driver, subjected her to penile-vaginal and oral penetration before releasing her behind Redford High School. The victim reported the assault immediately, and a sexual assault kit was collected that evening. The kit was not processed until 2017, when outsourced DNA analysis by Sorenson Forensics generated a male DNA profile that hit in CODIS and matched McKean.
Wayne County detectives reopened the investigation in 2018. The victim identified McKean in a photographic lineup. On December 31, 2019, McKean was interviewed by Detective Penman, waived his Miranda rights, and later requested a polygraph examination, which he also preceded with a Miranda waiver. McKean was charged with CSC-I, kidnapping, and CSC-III. He moved to suppress his custodial statements, contending his rights were violated, but the trial court denied suppression after a Walker hearing. McKean then waived his right to a jury trial; the court engaged in a colloquy and accepted the waiver. When the victim refused to appear at trial despite a court order compelling her attendance, the trial court admitted her preliminary examination testimony under MRE 804. Following a bench trial, McKean was convicted of CSC-I and kidnapping (the CSC-III charge merged into CSC-I) and sentenced to 18–35 years and 10–20 years respectively.
McKean appealed as of right, raising three issues: the voluntariness of his Miranda waivers, the adequacy of his jury-trial waiver, and the propriety of admitting the victim’s prior testimony under MRE 804 and the Confrontation Clause.
The Court’s Holding
The Court of Appeals affirmed all convictions and sentences. On the Miranda issue, the court found that McKean voluntarily requested the polygraph and waived his rights before it began. As to the December 31 interview, although McKean stated “I do need an attorney,” Detective Penman immediately ceased questioning — treating the statement as an unequivocal invocation. McKean himself then asked Penman to continue; Penman re-administered Miranda warnings, and McKean re-executed the waiver. Because the renewed questioning was initiated by McKean and followed a fresh, valid waiver, the court held that police conduct was constitutionally permissible and the trial court did not clearly err in denying suppression.
On the jury-trial waiver, the court reviewed for plain error only, because McKean never objected in the trial court. The colloquy on the record showed the judge explained that a jury of twelve must unanimously agree on a verdict, that in a bench trial the judge alone decides guilt, that the judge confirmed McKean had not been promised anything or pressured, and that McKean answered affirmatively and freely at each step. Compliance with MCR 6.402(B) creates a presumption of a valid waiver, and the court found no deficiency — in particular, the court was not obligated to discuss jury-selection procedures. McKean could not demonstrate plain error affecting his substantial rights.
On the admissibility of the victim’s prior testimony, the court held she was properly deemed unavailable under MRE 804(a)(2) because she acknowledged the trial court’s order compelling her appearance and nonetheless refused to comply. The court further found that McKean had an adequate opportunity and similar motive to cross-examine the victim at the preliminary examination on the CSC-I and kidnapping charges, and that McKean failed to identify any specific new evidence that would have altered that cross-examination. The Confrontation Clause argument was unpreserved and failed plain-error review on the same reasoning.
Key Takeaways
- A defendant who invokes the right to counsel during interrogation may validly reinitiate contact, receive fresh Miranda warnings, and waive that right — renewed questioning under those circumstances does not violate the Fifth Amendment.
- Under MCR 6.402(B), a jury-trial waiver colloquy need not cover jury-selection procedures; the dispositive inquiry is only whether the defendant understood that a judge, not a jury, will determine guilt.
- A witness who acknowledges receipt of a court order compelling testimony but still refuses to appear qualifies as “unavailable” under MRE 804(a)(2), permitting admission of that witness’s prior testimony if the opposing party had an opportunity and similar motive to cross-examine.
- A defendant challenging former testimony under MRE 804(b)(1) must identify specific evidence or lines of cross-examination that were foreclosed at the prior proceeding; a general assertion of unpreparedness by prior counsel is insufficient.
Why It Matters
This decision reinforces established Michigan and federal doctrine that a post-invocation waiver is valid when the defendant — not police — reinitiates dialogue, a rule with significant practical consequences in cold-case investigations where suspects may be confronted years after an offense. Prosecutors and defense counsel should note that a detective’s decision to scrupulously honor an ambiguous invocation and then honor the defendant’s own request to continue — rather than argue whether the invocation was equivocal — will withstand appellate scrutiny.
The case also illustrates the recurring challenge of complaining witnesses in sexual-assault prosecutions. The court’s affirmance of MRE 804(a)(2) unavailability based solely on the victim’s communicated refusal — without any finding that the defense caused her absence — confirms that cold-case prosecutions can succeed on sexual-assault kit DNA and preserved preliminary-examination testimony even when the victim declines to re-engage years later, provided prior cross-examination was substantively adequate.