People v. Riggs ( 1997 )

R. R. Lamb, J.

(dissenting). I respectfully dissent. Recognizing that Tony Cato Riggs engaged in conduct that is reprehensible and criminal, her Sixth Amendment right to counsel continued with respect to the charge of murder brought by the State of Michigan, as long as defendant and the State of Michigan remained in an adversarial position pertaining to that charge.

A brief supplementation to the factual recitation in Judge Smolensk’s opinion is pertinent to address properly defendant’s Sixth Amendment right to counsel claim.

Defendant was charged with first-degree murder in March 1991. She retained counsel, who secured her release from custody, and counsel appeared with defendant at arraignment on the warrant and at her preliminary examination. The charge against defendant was dismissed by the examining magistrate in April 1991. The prosecutor’s office immediately appealed that decision to the Recorder’s Court. The Recorder’s Court affirmed the decision of the magistrate. The prosecutor’s office then appealed to the Michigan Court of Appeals. On May 26, 1993, the Court of Appeals affirmed the decisions of the Recorder’s Court and the magistrate. The prosecutor then applied for leave to appeal to the Michigan Supreme Court. All of the appeals brought by the prosecutor were timely filed, and defendant continued to be represented by counsel in all of the proceedings.

On November 30, 1993, the Supreme Court denied the prosecutor’s application for leave to appeal. From March 1991 through November 30, 1993, defendant was represented continuously by the same attorneys in connection with the murder charge at all proceedings pending in the district court, the Recorder’s Court, the Court of Appeals, and the Supreme Court.

Following the dismissal of the murder charge by the examining magistrate in April 1991 and during the prosecutor’s appeals of that decision, defendant engaged in activities involving illegal drug transactions. Her conduct caused her to be investigated by the federal government. Defendant and others were being investigated by the federal government, and, in the course of that investigation, defendant had a number of meetings and conversations with federal agents who were acting in an undercover capacity as drug dealers. These meetings or conversations produced evidence used or sought to be used against defendant by the State of Michigan in the murder charges brought by the state. These meetings and conversations occurred in February, May, June, and July of 1993.

Defendant was arrested on federal drug charges on November 17, 1993, by federal agents. This arrest occurred in the City of Detroit. She was taken to the federal building in Detroit, and, after being booked and processed, she was shown a videotape of a February 23, 1993, conversation with Agent Richard J. Crock. During this conversation she detailed the events surrounding the murder of her husband and made several inculpatory statements. Immediately after defendant had been shown this video, Sergeant William Rice, who had been investigating this case since the death of Mr. Riggs in March 1991, interviewed defendant at the federal building. Rice obtained an additional statement from defendant that defendant challenged by pretrial motion.

In November 1993, defendant was again charged by the State of Michigan with crimes arising out of the death of her husband, Anthony Riggs. The 1993 charges brought against defendant by the State of Michigan were first-degree murder, conspiracy to commit murder, solicitation to commit murder, and possession of a firearm during the commission of a felony. The charge of solicitation to commit murder involved one Antonio Shelby, who was a potential witness against defendant. Mr. Shelby’s testimony had not been offered at the 1991 preliminary examination, and this fact was mentioned in the Court of Appeals opinion affirming the dismissal of the charge against defendant. People v Riggs, unpublished opinion per curiam, issued May 26, 1993 (Docket No. 142280).

At the 1993 preliminary examination of the four counts against defendant, the parties stipulated the prior testimony of five witnesses from the May 1991 exam, the identification of the deceased, and the admission of the autopsy report on Anthony Riggs. The only witness testifying live at the 1993 preliminary examination was Agent Crock.

At the conclusion of the 1993 preliminary examination, defendant was bound over to Recorder’s Court on the charges of murder, conspiracy to commit murder, and solicitation to commit murder. The felony-firearm charge was dismissed by the magistrate.

Defendant moved to suppress the statements given by her to Agent Crock on February 23, 1993, and to Sergeant Rice following her arrest on November 17, 1993. The trial court found that defendant had a Sixth Amendment right to counsel that continued after dismissal of the charges following the 1991 preliminary examination and during the pendency of the prosecutor’s appeals. The court found that defendant had not knowingly and understanding^ waived her right to counsel during her conversation with Agent Crock. The court held, however, that the right to counsel had not been violated because the federal investigation was not an artifice, ruse, or subterfuge to obtain statements from defendant. The court found that the federal investigation was distinct from the murder investigation and that Agent Crock, in talking to defendant, had a dual investigative purpose.

The trial court suppressed the November 17, 1993, statement to Sergeant Rice. The court found that defendant had a continuing right to counsel and that she had been denied that right while she was held in custody. The court found further that at the time defendant gave her statement to Sergeant Rice, she had not waived her Sixth Amendment right to counsel.

Before trial, the court severed count three. The solicitation to commit murder charge was ultimately dismissed, following defendant’s conviction in federal court on federal drug charges. In state court, defendant was tried and convicted of first-degree murder and conspiracy to commit murder of her husband, Anthony Riggs.

I agree with many of the authorities and the legal premises recited in Judge Smolensk’s opinion. I disagree with his application of the settled law to the facts established on the record in the trial court. Judge Smolensk’s opinion affirms the decision of the trial court but for reasons different than those given by the trial court. I would not disturb the trial court’s factual findings or the trial court’s legal conclusion that defendant had a continuing right to counsel as guaranteed by the Sixth Amendment.

Because I do not agree with Judge Smolensk’s opinion to affirm defendant’s conviction, I do not agree that the evidentiary issue concerning the introduction of the entire letter written by the deceased to his mother is harmless error.

I. THE DEFENDANT’S SIXTH AMENDMENT RIGHT TO COUNSEL

The Sixth Amendment right to counsel is applicable to the states via the Fourteenth Amendment. This right does not attach until a prosecution is commenced by the initiation of adversary criminal proceedings. The right is offense specific and, once asserted, continues at critical stages of the proceedings against an accused. Government efforts to elicit information from an accused concerning a charged crime constitutes a critical stage of the proceedings.

For analysis of defendant’s Sixth Amendment claim, the fact that the case against her was dismissed after her 1991 preliminary examination may be significant but it is not dispositive. This dismissal must be viewed in the larger context of the question, which is: Did the parties continue an adversarial position with one another following the dismissal of the charges by the examining magistrate? I believe the answer to this question is yes. Dismissal of a charge at a preliminary examination is without prejudice to the prosecutor refiling the charge. MCR 6.110(F). People v Hayden, 205 Mich App 412; 522 NW2d 336 (1994). Following dismissal of the charge, the adversarial relationship between the state and defendant continued. The prosecutor initiated an appeal of the magistrate’s decision and continued the appeal through every level of appellate review in the state court system. The prosecutor was seeking to continue or reinstate the charge against defendant. I read United States v Gouveia, 467 US 180; 104 S Ct 2292; 81 L Ed 2d 146 (1984), as support for the premise that the adverse positions of the government and defendant in this case had solidified. Defendant found herself faced with prosecutorial forces of organized society and immersed in the intricacies of substantive and procedural criminal law.

This adverse position between defendant and the government remained solidified during the appeal process. In People v Gonyea, 421 Mich 462; 365 NW2d 136 (1984), the Michigan Supreme Court stated that the right to counsel is applicable to posttrial statements when appeal is not final. The Court also stated: “If the right to counsel is to remain appropriately meaningful, the right must extend until the appeal is final.” Id. at 470. There is no escaping the fact that the appeal was still pending when defendant was questioned by the federal agents in February 1993. Further, it is undisputed that during the pendency of the adversarial proceedings, defendant was represented by retained counsel.

The Court of Appeals opinion affirming the dismissal, People v Riggs, unpublished opinion per curiam, issued May 26, 1993 (Docket No. 142280), stated that there was legally insufficient evidence that defendant participated in this crime against her husband. My reading of this Court of Appeals opinion is that the magistrate refused to consider the statement of a codefendant, Michael Cato (defendant’s brother), as sufficiently credible evidence against defendant. The potential testimony of Antonio Shelby linking defendant to the murder was not offered as substantive evidence against defendant. The basis for the failure to establish probable cause appears to have been the failure to identify defendant as a participant rather than a failure to establish that, in fact, a criminal homicide had occurred. If the prosecutor had been successful in appealing the decision of the magistrate, defendant again would be facing formal charges. Consequently, although the formal charges had been dismissed by the magistrate, the positions of the parties remained adversarial during the pendency of the appellate proceedings.

I do not agree with the conclusion reached by Judge Smolenski that the district court necessarily determined that probable cause did not exist to believe either that the charged offense had been committed or that defendant had committed it. It is difficult to reach a conclusion that the probable cause necessary to establish the corpus delicti was not established at the preliminary examination. An autopsy was conducted on the body of Anthony Riggs, which demonstrated that he died as a result of being shot. The corpus delicti of first-degree murder is shown by the death of the victim and some criminal agency as the cause. People v Williams, 422 Mich 381; 373 NW2d 567 (1985).

Although many of the cases discussed in Judge Smolenski’s opinion are factually different from the case now before this Court, the legal principles announced by those cases remain the same. It is clear that defendant was not in custody at the February 23, 1993, meeting. It is also clear that the method of questioning used by Agent Crock to further Sergeant Rice’s investigation concerning the murder charge against defendant meets the definition of interrogation as defined by the United States Supreme Court. Finally, it is clear that at the time of the occurrence of this interrogation by an agent of the state concerning the specific offense that made the state the accuser of defendant, defendant had exercised her Sixth Amendment right to counsel.

In Rhode Island v Innis, 446 US 291; 100 S Ct 1682; 64 L Ed 2d 297 (1980), the United States Supreme Court defined the word interrogation. I recognize that Innis was defining the word in the context of the warnings required under Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). I recognize further that the Miranda warnings are required in a custodial setting and that defendant was not in custody. I believe, however, that the definition of interrogation is pertinent to an understanding of whether defendant was “interrogated” concerning the murder charge to which her Sixth Amendment right had attached and remained. The Innis Court stated:

That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. ... A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. [Innis, supra at 301.]

Judge SMOLENSK! states: “I assume that on February 23, 1993, Crock, in his undercover capacity, deliberately elicited incriminating statements from defendant concerning her husband’s murder.” Ante at 680. There is no need to make an assumption concerning this issue. The record clearly establishes that Agent Crock did deliberately elicit incriminating statements from defendant on February 23, 1993.

Agent Crock very candidly testified that on February 23, 1993, he was aware of the murder charge against defendant. He knew that the charge had been dismissed and that defendant had been represented by counsel in connection with this charge. He also knew that there was an appeal involved, but he was unsure of the exact status of the appeal. Agent Crock had been in contact with Sergeant Rice on the day before or the day of February 23, 1993. This contact was before the meeting with defendant. The meeting had been preplanned and arranged to continue Crock’s investigation of the drug charges and to put defendant in a position in which she would talk about her husband’s murder. Agent Crock wanted to assist Sergeant Rice in his investigation. Crock had no independent interest in the murder investigation, but in the scope of his duties he would investigate any felony. Following the meeting with defendant, Agent Crock contacted Sergeant Rice.

I agree with that portion of Judge Smolensk's opinion in which it is stated that Agent Crock had a dual purpose for conducting his investigation. I agree also that there is no indication that Sergeant Rice had any control or direction over either the federal investigation in general or Crock’s questioning of defendant concerning the murder specifically. I disagree with and I believe the record clearly refutes the conclusion that there is no indication that Rice and Crock were coordinating their efforts to question defendant concerning the murder of her husband and that Crock acted solely on his own in questioning defendant for the dual purpose of eliciting information concerning the murder. Crock testified that the meeting was arranged so that defendant would discuss the murder case and that one of his purposes was to assist Sergeant Rice in furthering the murder investigation. Thus, this case does not present an argument for extending the Sixth Amendment indefinitely into the future once original charges have been dismissed. I continue to view the case as one involving a narrow application of the Sixth Amendment right to counsel to a specific charge that has been initiated in court and has placed the state and the defendant in an adversarial position. The fact that an examining magistrate has dismissed a charge does not change the fact that the parties remain in an adversarial position when the state appeals the decision of the magistrate and attempts to continue the charge against defendant. Nor does the dismissal of the charge by the magistrate change the fact that defendant continued to be represented by counsel, after initiation of formal proceedings in court, or the fact that defendant did not waive the right to counsel at the prearranged meeting. It does not matter how many puiposes Agent Crock had for conducting the interrogation. One of his purposes was to conduct an interrogation of defendant concerning a pending charge in the absence of her counsel. The Sixth Amendment will not protect defendant from any statements pertaining to any federal charges where there was no Sixth Amendment right to counsel because those charges had not been formally initiated. Merely because a defendant’s statements may be used in one setting does not open the door to vitiating the Sixth Amendment right that had attached pertaining to other charges.

I agree with the statement that where federal questions are involved, the Court of Appeals is bound to follow the prevailing opinions of the United States Supreme Court. I agree also that where an issue has divided the circuits of the federal court of appeals, this Court is free to choose the most appropriate view. However, I feel that the United States Supreme Court, speaking through its majority opinions, has clearly ruled in this area of the Sixth Amendment right to counsel. In McNeil v Wisconsin, 501 US 171, 175; 111 S Ct 2204; 115 L Ed 2d 158 (1991), the Supreme Court announced settled principles of Sixth Amendment law that are particularly appropriate to the case before this Court:

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence.” In Michigan v Jackson, 475 US 625 [106 S Ct 1404; 89 L Ed 2d 631] (1986), we held that once this right to counsel has attached and has been invoked, any subsequent waiver during a police-initiated custodial interview is ineffective. It is undisputed, and we accept for purposes of the present case, that at the time petitioner provided the incriminating statements at issue, his Sixth Amendment right had attached and had been invoked with respect to the West Allis armed, robbery, for which he had been formally charged.

The Sixth Amendment right, however, is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, “ ‘at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” United States v Gouveia, 467 US 180, 188 [104 S Ct 2292; 81 L Ed 2d 146 (1984) (quoting Kirby v Illinois, 406 US 682, 689 [92 S Ct 1877; 32 L Ed 2d 411] (1972) (plurality opinion)). And just as the right is offense specific, so also its Michigan v Jackson effect of invalidating subsequent waivers in police-initiated interviews is offense specific.

The United States Supreme Court in Maine v Moulton, 474 US 159; 106 S Ct 477; 88 L Ed 2d 481 (1985), held that a state cannot knowingly exploit an opportunity to confront an accused without counsel being present, once the right to counsel has attached, nor can a state intentionally create such an opportunity. I disagree with the conclusion reached in Judge Smolenski’s opinion that Moulton, supra, United States v Henry, 447 US 264; 100 S Ct 2183; 65 L Ed 2d 115 (1980), and Massiah v United States, 377 US 201; 84 S Ct 1199; 12 L Ed 2d 246 (1964), contain facts that distinguish this case from the application of the rule announced in those cases. Although this case involves a federal drug enforcement agent rather than a paid informant, the fact remains that the federal agent acted in cooperation with a state agent and deliberately elicited information concerning a pending charge from a defendant who was represented by counsel. The factual distinction does not result in a legal difference. The Sixth Amendment offense-specific right to counsel was violated concerning the murder charge.

I disagree with Judge Smolensk’s statement that People v Gonyea, 421 Mich 462; 365 NW2d 136 (1984), and Cahill v Rushen, 501 F Supp 1219 (ED Cal, 1980), aff’d 678 F2d 791 (CA 9, 1982), are distinguishable and therefore not dispositive. I believe the facts of Gonyea and Cahill do fall squarely within the general rule that the Sixth Amendment bars the use of incriminating statements that the government has deliberately elicited from a defendant after indictment and in the absence of counsel.

The Court held in Gonyea that the defendant had a right to counsel after sentencing. I believe that it necessarily follows that if a defendant in Michigan has the right to counsel that continues after trial, conviction, and sentencing, then a defendant who is at the opposite end of the judicial proceedings facing a preliminaiy examination has that same right. The prosecution’s appeal of the dismissal of the charges certainly was not “final” when defendant gave her statement on February 23, 1993.

Also instructive from Gonyea is the Court’s discussion of waiver of a right. Gonyea demonstrates that the trial court was correct in finding that there was no showing that at the time defendant made her statements to Agent Crock she had intentionally relinquished or abandoned her right to counsel.

Defendant’s right to counsel under Michigan Constitution 1963, art 1, § 20 is parallel to and coextensive with the Sixth Amendment right to counsel. The language of Const 1963, art 1, § 20 and the Sixth Amendment is identical as far as the right to counsel is concerned. Gonyea, supra at 469.

I believe an application of the authorities pertaining to the Sixth Amendment right to counsel and the narrow application of that particular right is clearly illustrated by the different statements made by defendant to Agent Crock. Defendant’s Sixth Amendment right to counsel applies only to statements pertaining to the charge to which the Sixth Amendment right of counsel had attached. In the case before this Court, that is the murder charge that had been dismissed and that was subject to appeal, continuing the adversary position between the state and defendant. Defendant cannot claim a Sixth Amendment right pertaining to any statements involving the ongoing investigation concerning drug charges. No formal charge had been initiated at the time she made these statements pertaining to those charges. Defendant cannot claim any Sixth Amendment right to counsel pertaining to any statements she made to Crock concerning her efforts to solicit the murder of Antonio Shelby. I agree with the trial court and Judge Smolensk that the Sixth Amendment right to counsel in connection with one charge will not provide a person with a right, privilege, or license to engage in or solicit further criminal activity. On the other hand, if in a government-initiated conversation a person makes statements pertaining to numerous offenses, the government is precluded from using any statements in connection with a matter to which the Sixth Amendment right of counsel has attached.

n. EVIDENTIARY ISSUE CONCERNING THE ADMISSION OF MR. RIGGS’ LETTER

I disagree with the conclusion reached by the majority that any error in the admission of the decedent’s last letter to his mother was harmless error. I believe that the admission of the entire letter was error.

Relevant evidence refers to evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. MRE 401. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. MRE 403.

When a defendant is charged with the murder of a spouse, the deceased spouse’s statements concerning marital discord are admissible to show the effect they had on the defendant. People v Fisher, 449 Mich 441, 450; 537 NW2d 577 (1995). Statements of a deceased spouse that were not known to the defendant may also be admissible to show the decedent’s state of mind with regard to marital discord. Id. Evidence of marital discord is relevant to motive because it has some tendency to make the existence of a fact in controversy more or less probable, namely, whether the defendant committed the murder. Id. at 453. The portion of decedent’s letter concerning his marital troubles was relevant to the marital discord issue and was therefore admissible to show decedent’s state of mind. However, the other portions of his letter were irrelevant to marital discord or any other issue in the case.

I would reverse defendant’s conviction and remand the matter for a new trial.