People v. Young , 222 Mich. App. 498 ( 1997 )

565 N.W.2d 5 (1997) 222 Mich. App. 498

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Bryce W. YOUNG, Defendant-Appellant.

Docket No. 200195.

Court of Appeals of Michigan.

Submitted January 7, 1997, at Lansing. Decided April 1, 1997, at 9:15 a.m. Released for Publication June 16, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, for People.

State Appellate Defender by F. Michael Schuck, for defendant on appeal.

Before O'CONNELL, P.J., and MacKENZIE and WAHLS, JJ.

ON REMAND

WAHLS, Judge.

Defendant appeals as of right his bench trial convictions of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). The trial court sentenced defendant to respective terms of twelve to thirty years' and two years' imprisonment. We reverse.

Initially, this Court affirmed defendant's convictions in a divided panel. People v. Young, 212 Mich.App. 630, 538 N.W.2d 456 (1995). However, the Michigan Supreme Court remanded to this Court "for reconsideration in light of People v. Bender, 452 Mich. 594, 551 N.W.2d 71 (1996), and for a determination whether that decision should be applied retroactively to this case." People v. Young, 453 Mich. 973, 557 N.W.2d 315 (1996).

The facts of this case are set out in full in our initial opinion. Young, supra, 212 Mich.App. at 631-635, 538 N.W.2d 456. Briefly, defendant was arrested on the evening of September 9, 1991, and placed in a holding cell for the night. On the morning of September 10, Sergeant Lee Caudill questioned defendant for approximately one hour. Defendant denied all involvement in the killing of the decedent. Later, defendant was taken to the police crime laboratory for the administration of a polygraph examination. During the examination, Sergeant Caudill received a telephone call indicating that defendant's family had retained an attorney who was at the police station requesting an opportunity to meet his client. Sergeant Caudill did not notify defendant of this fact. Following the polygraph examination, Sergeant Caudill questioned defendant, and elicited several admissions damaging to defendant's case.

On appeal, defendant argues that the trial court abused its discretion in admitting these statements because the police failed to inform defendant that his family had retained counsel, and that counsel had attempted to contact him. We agree.

This case is on all fours with People v. Bender, 452 Mich. 594, 551 N.W.2d 71 (1996). In Bender, a parent of each of the two defendants retained an attorney to represent their respective sons after their sons were arrested. Id. at 598, 600, 551 N.W.2d 71. At the instruction of the attorney retained to represent the defendant Ziegler, Ziegler's mother went to the police station, asked to see her son, and stated that she had a message for Ziegler from his attorney. Id. at 598, 551 N.W.2d 71. In the case of the defendant Bender, it was the attorney herself who contacted the police station and asked to speak with Bender. Id. at 600, 551 N.W.2d 71. In both situations, the police refused to inform the defendants that an attorney was trying to contact them. Id. at 599-600, 551 N.W.2d 71. Meanwhile, both defendants were interrogated after signing Miranda^[1]-warnings forms. Id. at 600-601, 551 N.W.2d 71. The trial court refused to admit the statements made during these interrogations. Id. at 601-602, 551 N.W.2d 71. This Court affirmed. Id. at 602, 551 N.W.2d 71. On appeal to the Supreme Court, a majority of the Supreme Court established a prophylactic rule which stated that law enforcement investigators may not conceal from suspects the fact that counsel has been made available to them and is at their disposal. Id. at 620-621, 551 N.W.2d 71.

This case is indistinguishable from Bender. In all cases (this case and both situations presented in Bender), counsel was retained for the defendants by the defendants' family. In all cases, either counsel contacted the police station, or the family contacted the police on the instructions of counsel. In all cases, following the police's refusal to inform the defendants of the attempted contact, the police initiated an interrogation which resulted in incriminating statements. Accordingly, if Bender is applicable to this case, then it requires that we reverse defendant's convictions. Id. at 620, 623, 551 N.W.2d 71.

In this Court's initial opinion, the majority opinion stated that the facts of Bender were distinguishable from this case because here, defendant waived his Miranda rights prior to any attempted contact by an attorney retained on his behalf. Young, supra, 212 Mich.App. at 641, 538 N.W.2d 456. This is a distinction without a difference. In Bender, supra, 452 Mich. at 622, 551 N.W.2d 71, Justice Brickley's majority opinion reasoned:

[W]e invite much mischief if we afford police officers "engaged in the often competitive enterprise of ferreting out crime" the discretion to decide when a suspect can and cannot see an attorney who has been retained for a suspect's benefit.

In this case, it was Sergeant Caudill who received a telephone call indicating the defendant's family had retained an attorney who was at the police station requesting an opportunity to meet defendant. Young, supra, 212 Mich.App. at 633, 538 N.W.2d 456. It was Sergeant Caudill who did not notify defendant of this fact while the polygraph examination was being conducted. Id. at 633-634, 538 N.W.2d 456. Following the conclusion of the polygraph examination, it was Sergeant Caudill who initiated a new interrogation of defendant, and elicited the admissions now in question. Id. at 634, 538 N.W.2d 456.

This case does not require us to decide whether a police officer must, upon being contacted by counsel retained for a defendant, actively seek out the location of a defendant's detention or interrupt an ongoing interrogation. Rather, this case simply asks whether the same police officer who has been told that retained counsel is at the police station attempting to meet a defendant may subsequently initiate an interrogation of that defendant without informing him that he has counsel. Bender answers this question in the negative. Bender, supra, 452 Mich. at 621, 551 N.W.2d 71.

There remains the question of whether Bender should be applied retroactively. Generally, judicial decisions are to be given complete retroactive effect. People v. Doyle, 451 Mich. 93, 104, 545 N.W.2d 627 (1996). Complete prospective application has generally been limited to decisions which overrule clear and uncontradicted case law. Id. If a judicial decision is "unexpected" and "indefensible" in light of the law existing at the time of the conduct, retroactive application of such a decision is problematic. Id.

Here, the Supreme Court's decision in Bender was not unexpected. The Supreme Court addressed this same issue in People v. Wright, 441 Mich. 140, 490 N.W.2d 351 (1992). In that case, Justices Mallett, Levin, and Cavanagh supported the prophylactic rule announced in Bender. Although he chose to write separately, Justice Brickley saw the police concealment as a critical factor in determining the voluntariness of the defendant's statements. Accordingly, Justice Brickley cast the deciding fourth vote to reverse that defendant's conviction. Id. In light of Wright, it can hardly be said that Bender overruled clear and uncontradicted case law. Neither can it be said that Bender was "unexpected" or "indefensible" in light of Wright. Therefore, Bender is to be given complete retroactive effect. Doyle, supra, 451 Mich. at 104, 545 N.W.2d 627; see also Chow v. O'Keefe, 217 Mich.App. 102, 104-105, 550 N.W.2d 833 (1996).

The final question is whether the trial court's error can be considered harmless. The trial court's error implicates both the right against self-incrimination and the right to counsel. Const. 1963, art. 1, §§ 17 & 20; Bender, supra, p. 620, 551 N.W.2d 71. A constitutional error which occurs during the presentation of the case to the jury is assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt. People v. Anderson (After Remand), 446 Mich. 392, 405-406, 521 N.W.2d 538 (1994). This requires the beneficiary of the error to prove, and the court to determine, beyond a reasonable doubt that there is no reasonable possibility that the evidence complained of might have contributed to the conviction. Id. at 406, 521 N.W.2d 538. Here, in light of the sketchy visual identifications of the perpetrator, and the fact that witnesses to the crime initially thought someone other than defendant had committed the crime, the admission of this evidence was not harmless beyond a reasonable doubt. See id. at 407, 521 N.W.2d 538. Accordingly, defendant's convictions must be reversed, and the matter remanded for a new trial.

Reversed and remanded.

MacKENZIE, J., concurred.

O'CONNELL, Presiding Judge (concurring in part; dissenting in part).

I agree with the majority that the Supreme Court's recent decision in People v. Bender, 452 Mich. 594, 551 N.W.2d 71 (1996), would require suppression of the present defendant's inculpatory statements were Bender to be applied retrospectively. However, pursuant to Johnson v. New Jersey, 384 U.S. 719, 729-734, 86 S. Ct. 1772, 1778-1781, 16 L. Ed. 2d 882 (1966), I do not believe that Bender should be afforded retrospective application. Accordingly, I would affirm.

Initially, I would note that Bender is a very unusual decision. The issues in Bender were framed in terms of a defendant's constitutional right to counsel (Const. 1963, art. 1, § 20) and right against compelled self-incrimination (Const. 1963, art. 1, § 17). However, the issues were resolved on a strictly extra-constitutional basis. The majority opinion in Bender,^[1] concedes as much, stating,

This case rather clearly implicates both the right to counsel and the right against self-incrimination. I conclude that rather than interpreting these provisions, it would be more appropriate to approach the law enforcement practices that are at the core of this case .... (Bender, supra, p. 620, 551 N.W.2d 71).

The opinion then proceeds to speak without great specificity of "constitutional civil liberties," id., p. 621, 551 N.W.2d 71, "closely guarded legal traditions," id., p. 623, 551 N.W.2d 71, and our "accusatorial" as opposed to "inquisitional" system of criminal justice. Id. The dissent characterized this approach as being "grounded solely on policy concerns, not constitutional mandates." Id., p. 644, 551 N.W.2d 71.

The "policy concern" laying at the heart of the Bender decision may be found in the following sentence: "we invite much mischief," the majority writes, "if we afford police officers engaged in the often competitive enterprise of ferreting out crime the discretion to decide when a suspect can and cannot see an attorney who has been retained for a suspect's benefit." Id., p. 622, 551 N.W.2d 71. This may be true, but, to paraphrase the dissent, one's personal desire to avoid "much mischief," no matter how sincere and heartfelt, does not translate that belief into a constitutional right. However, regardless of any shortcomings in the Bender decision, it is now the law in Michigan. Boyd v. W G Wade Shows, 443 Mich. 515, 523, 505 N.W.2d 544 (1993).

However, it is only now the law in Michigan. As discussed by the majority in the present case, our Supreme Court, in Bender, adopted a new prophylactic rule of law arguably foreshadowed by the Court's previous, fractured decision in People v. Wright, 441 Mich. 140, 490 N.W.2d 351 (1992). This history is remarkably similar to that of the United States Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed. 2d 694 (1966),^[2] a decision that reified a new principle of law first adumbrated several years prior in Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964).

The United States Supreme Court declined to afford Miranda retrospective application despite its prior decision in Escobedo. Johnson v. New Jersey, 384 U.S. 719, 729-734, 86 S. Ct. 1772, 1778-1781, 16 L. Ed. 2d 882 (1966). The Court limited its application of the Miranda decision, though a clear majority of the Court had previously embraced the reasoning of Escobedo. In contrast, there was no majority decision in Wright. Thus, where the United States Supreme Court refused to enforce Miranda retrospectively even where that decision had been foreshadowed by a clear majority of the Court in Escobedo, surely retrospective application of Bender is unwarranted where our Supreme Court could not muster a majority decision in Wright, the decision alleged by the majority in the present case to mandate retrospective application of Bender.

Therefore, I would decline to enforce Bender retrospectively, and would affirm.

NOTES

[1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

[1] The majority opinion in Bender is the concurring opinion written by Justice Brickley, not the lead opinion written by Justice Cavanagh.

[2] In fact, the Bender decision itself calls attention to its parallels with Miranda. Bender, supra, p. 621, 551 N.W.2d 71.