People v. Stevens , 461 Mich. 655 ( 2000 )

Per Curiam.

This is an interlocutory appeal arising from a circuit court’s pretrial evidentiary ruling in a murder case. The defendant acknowledged his guilt during plea discussions that arose from proceedings pursuant to an investigative subpoena. The contemplated plea was never entered, and the question then arose whether his statements would be excluded at trial under MRE 410. The circuit court concluded that rule applied, but that the defendant had waived its protections, though the court limited use of most of the disputed evidence to rebuttal only. The Court of Appeals affirmed.

The prosecutor has filed an application for leave to appeal, arguing that, in light of the waiver, the statement should be admissible in the prosecutor’s case in chief. We agree, and reverse the judgment of the Court of Appeals.

i

On the evening of May 6, 1988, the desk clerk of a Saginaw motel was the victim of a robbery. She was severely beaten on the head with a piece of pipe, resulting in her death. The police apparently suspected three men, defendant Stevens, his brother Richard Carlton, and Gerald Hudson. However, for several years they were unable to gather sufficient evidence to begin a prosecution.

The proceedings leading to the instant appeal began over eight years later, when the prosecutor requested investigatory subpoenas under the recently passed statute authorizing that procedure. 1995 PA 148, MCL 767A.1 et seq.) MSA 28.1023A(1) et seq. Under the statute, such court-authorized subpoenas allow the prosecutor to compel testimony during the course of a criminal investigation.

In early 1997, the 70th District Court signed an order authorizing issuance of such investigative subpoenas, one of which was served on defendant Stevens. As a result, there were several interviews with him. The first was on February 18, 1997. Present were the defendant; Assistant Saginaw County Prosecuting Attorney Richard King; Charles Brown, an investigator in the prosecutor’s office; and a Saginaw Township police officer. No attorney was present for the defendant, though he had apparently consulted with the attorney who was representing him in other matters. At that interview the defendant refused to answer almost all questions, invoking the Fifth Amendment. Nothing he said at that interview is involved in the rulings by the lower court or the instant application.

At the time, the defendant was facing charges in two unrelated cases. On April 14, 1997, he contacted Investigator Brown, raising the possibility of a plea agreement that would dispose of all cases, including the 1988 motel robbery-murder. In a letter to defendant’s lawyer, George Thick, Assistant Prosecutor King proposed an agreement that would allow the defendant to plead guilty to second-degree murder, home invasion, car-jacking, and to being an habitual (fourth) offender. The prosecutor would recommend concurrent minimum terms not exceeding thirty-five years. Under the proposed agreement there would be no charges filed against Richard Carlton, the defendant would testify against Gerald Hudson, and the defendant would be required to take and pass a polygraph examination.

On April 28, 1997, the parties met again for proceedings under the investigative subpoena. The same four men who had been present on February 18 were there, as was attorney Thick. During that interview the defendant said that he had been present at the crime scene, but that it was Hudson who killed the victim.

Defendant took the polygraph examination on April 29, 1997, which he failed. He telephoned Investigator Brown on May 1, 1997, and was informed of the results. Brown then told attorney Thick about his conversation with the defendant.-

Defendant called Brown again on May 5, 1997, saying that he wanted to talk to Brown without his attorney present. Brown called Thick to inform him of this request, and with attorney Thick’s concurrence met alone with the defendant, recording a statement. Defendant again told of the robbery, this time admitting that he killed the victim.

On the following day, May 7, 1997, the investigative subpoena proceedings were renewed for the final time. Again present were Brown, the Saginaw Township officer, attorney Thick, and the defendant. Another assistant prosecutor, James Piazza, attended in place of King. The parties reviewed the plea agreement, and defendant again explained that he beat the victim to death with a piece of pipe.

At each of the four interviews the defendant was given warnings about the use of statements he might make.¹ In introductory remarks at the May 7 interview, Assistant Prosecutor Piazza said:

You have been subpoenaed to testify regarding this investigation. You may refuse to answer any question if a truthful answer to the question would tend to incriminate you. Anything that you do say may be used against you by State prosecutor’s [sic] in a subsequent legal proceeding. If you have counsel and you do have Mr. George Thick here present, you will be permitted a reasonable opportunity to consult with counsel if you so desire. In other words if you have any questions and wish to talk to your attorney before answering any questions, just let me know and we will make available a room available [sic] for you to talk with your counsel in private. [Emphasis added.]

At the two earlier investigatory subpoena proceedings, Assistant Prosecutor King had made similar statements, telling the defendant that anything he said could be used “in a subsequent legal proceeding.” Investigator Brown said that he told defendant on May 6 that anything he said, “will and can be used against you in a court of law.”

On May 19, 1997, the defendant appeared in circuit court to enter the agreed-upon plea. However, after the statement of the plea bargain, and the court’s advice about the rights the defendant would be surrendering by pleading, the defendant said:

Your Honor, I think I’ve changed my mind, and I don’t want to take this plea bargain.

As the case then proceeded toward trial, a dispute arose about whether defendant’s admissions could be used against him. The circuit court conducted an evidentiary hearing on March 24, 1998, concerning the circumstances of the statements. The court rejected defendant’s argument that his cooperation and the statements were the product of undue pressure.

The parties also argued the applicability of MRE 410, which provides, in part:

Inadmissibility of Pleas, Plea Discussions, and Related Statements

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

* * *

(4) Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

The circuit court held that the rule was inapplicable to the May 6 statement to Investigator Brown, but that it did apply to the inculpatory statements on April 28 and May 7. The court held that defendant “effectively waived the protection of MRE 410.” However, the court said that the statements could be used only for rebuttal purposes.²

The prosecutor filed an application for leave to appeal to the Court of Appeals, which was granted. Ultimately, the Court issued a decision affirming the circuit court’s ruling.³

The prosecutor has filed an application for leave to appeal to this Court.

n

As originally enacted⁴ MRE 410 was based on the corresponding federal rule, FRE 410.⁵ See People v Dunn, 446 Mich 409, 415; 521 NW2d 255 (1994). Following an amendment of the federal rule, we revised MRE 410 to make corresponding changes, effective October 1, 1991. The language of MRE 410(4), which governs the instant case, is identical to its federal counterpart.⁶

The question of waivability of the inadmissibility of statements in plea negotiations is one of first impression in Michigan.⁷ However, the United States Supreme Court has faced that issue in United States v Mezzanatto, 513 US 196; 115 S Ct 797; 130 L Ed 2d 697 (1995). In that case, the defendant was charged with possession with intent to distribute methamphetamine. The defendant and his attorney asked to meet with the prosecutor to discuss the possibility of cooperation with the government. At the beginning of the meeting, the prosecutor told the defendant that he was not obliged to talk, but that if he wanted to cooperate he would have to be completely truthful. As a condition of proceeding with the discussions, the prosecutor said the defendant would have to agree that any statements he made could be used to impeach any contradictory testimony he might give at trial if the case went that far. The defendant and counsel agreed to proceed under those terms. The plea arrangements broke down because the government concluded that the defendant was not providing completely truthful information.

The case went to trial and the defendant testified in his own defense, denying knowledge that the package he delivered contained methamphetamine. Over defense objection the prosecutor was allowed to cross-examine the defendant with the inconsistent statements he had made during the plea discussions.

The U.S. Court of Appeals for the Ninth Circuit reversed defendant’s conviction, taking the view that Congress must have meant to preclude waiver agree-merits such as that made in this case. United States v Mezzanatto, 998 F2d 1452, 1454-1456 (CA 9, 1993).

The U.S. Supreme Court rejected that view, relying on the principle that there is a “presumption of waivability” with regard to most rights. In particular, criminal defendants may knowingly and voluntarily waive the most fundamental protections afforded by the constitution. E.g., Peretz v United States, 501 US 923, 936; 111 S Ct 2661; 115 L Ed 2d 808 (1991); Ricketts v Adamson, 483 US 1, 10; 107 S Ct 2680; 97 L Ed 2d 1 (1987); Boykin v Alabama, 395 US 238, 243; 89 S Ct 1709; 23 L Ed 2d 274 (1969); Johnson v Zerbst, 304 US 458, 465; 58 S Ct 1019; 82 L Ed 1461 (1938). The same is true of cases interpreting the Federal Rules of Criminal Procedure and in the context of evidentiary rules. 513 US 201-204.⁸

The Court rejected the defendant’s specific arguments for imposing a no-waiver limitation on FRE 410 and upheld the use of the statements made in the course of plea negotiations for impeachment purposes.

In the instant case, the Court of Appeals followed Mezzanatto and said that the defendant’s statements could be used for impeachment or rebuttal. However, the Court declined to decide whether the evidence was admissible in the prosecutor’s case in chief. Referring to the U.S. Supreme Court’s Mezzanatto decision, it said:

In reaching its conclusion, the Court did not specifically state that its holding would apply equally to the admission of plea-negotiated statements in the prosecution’s case in chief. In fact, the three-justice concurrence states that the Court’s decision does not address the applicability of such statements being admitted in a prosecution’s case in chief.[⁹] We follow the majority and concurring opinions in Mezzanatto and leave for another panel of this Court or our Supreme Court the question whether a defendant can validly waive the explicit barrier to the introduction of plea negotiation statements in the prosecution’s case in chief. [236 Mich App 294, 300; 599 NW2d 789 (1999).]

m

The prosecutor’s application for leave to appeal argues that use of the statements should not be limited to impeachment, but should also be available for use in the prosecutor’s case in chief.

Although we are not bound by any legislative intent, as the Supreme Court was in Mezzanatto,¹⁰ we find the analysis in Mezzanatto relevant here. As in the federal system, Michigan allows waiver of virtually all rights afforded to litigants. Criminal defendants can waive their fundamental rights, including the right to remain silent, to trial by jury, and, indeed, to a trial at all. They may also consent to searches and seizures that would otherwise be illegal. In promulgating MRE 410, we did not intend to depart from the general rule of waivability. Thus, a criminal defendant may waive the right not to have statements made during the course of plea negotiations used against him. Further, we see no reason to create a new doctrine of “limited waivability” whereby a defendant who expressly waives all protection under MRE 410 retains the right not to have his statements used in the prosecutor’s case in chief. See United States v Burch, 332 US App DC 287, 293; 156 F3d 1315 (1998).

We acknowledge a factual distinction between Burch and the present case. In Burch, the defendant’s waiver of FRE 410 protections was included in a written plea agreement that resulted from the plea negotiations. In this case, defendant’s waiver of MRE 410 protections was a precondition to conducting the plea negotiations. The Burch court expressed concerns regarding this distinction when it stated:

It is trae that the three concurring Justices in Mezzanatto, whose votes were necessary for the majority, expressed concern that admitting plea negotiation statements in the case-in-chief would too severely undermine the defendant’s incentives to negotiate. See id. at 211, 115 S Ct 797. Such concern is far less warranted with respect to a waiver, like the one in this case, which is executed as a result of plea negotiations, rather than as a condition for such negotiations. [332 US App DC 294 (emphasis added).]

However, this distinction does not require a different result. The principal argument advanced for refusing to accept waivers in this case is that allowing defendants to waive the protections of MRE 410 would undermine the policy of encouraging plea bargaining, which is the basis of that rule. However, we agree with the majority in Mezzanatto that there is no reason to conclude that settlement of criminal cases through plea bargaining will be discouraged, whether waivers are executed as a result of plea negotiations or as a precondition to conducting those negotiations.¹¹ As the Court said:

Indeed, as a logical matter, it simply makes no sense to conclude that mutual settlement will be encouraged by precluding negotiation over an issue that may be particularly important to one of the parties to the transaction. A sounder way to encourage settlement is to permit the interested parties to enter into knowing and voluntary negotiations without any arbitrary limits on their bargaining chips. To use the Ninth Circuit’s metaphor, if the prosecutor is interested in “buying” the reliability assurance that accompanies a waiver agreement, then precluding waiver can only stifle the market for plea bargains. A defendant can “maximize” what he has to “sell” only if he is permitted to offer what the prosecutor is most interested in buying. ... If prosecutors decide that certain crucial information will be gained only by preserving the inadmissibility of plea statements, they will agree to leave intact the exclusionary provisions of the plea-statement Rules.

In sum, there is no reason to believe that allowing negotiation as to waiver of the plea-statement Rules will bring plea bargaining to a grinding halt; it may well have the opposite effect. Respondent’s unfounded policy argument thus provides no basis for concluding that Congress intended to prevent criminal defendants from offering to waive the plea-statement Rules during plea negotiation. [513 US 208-209.]

We conclude that this rationale applies whether a defendant’s waiver is partial, as in Mezzanatto, or complete, as in this case. See United States v Burch, supra.

Furthermore, facilitating the plea bargain process is not the sole policy concern implicated by the waiver of MRE 410 protections. The integrity of the legal process is also a consideration, and it is arguably undermined when the courts ignore relevant evidence of criminal activity simply because that evidence was discovered during the course of plea negotiations. The truth-finding function of our legal system is best served when as much evidence as possible relevant to the charged crime is submitted to the finder of fact, and the prosecutor has a duty to the public to present all such evidence of a crime that he obtains. These concerns about the integrity of the legal process must be balanced with the interest of facilitating plea bargaining, and we believe that an appropriate balance is struck by retaining MRE 410 protections, but allowing criminal defendants to waive those protections, as long as they are appropriately advised and as long as the statements admitted into evidence are voluntarily, knowingly, and understandingly made.

IV

The dissent expresses concern that our decision will “restraint] a defendant’s freedom to negotiate a plea without further implicating himself.” Post, p 678. However, the ability of a defendant to waive in whole or in part the protections of MRE 410 may actually expand the situations in which plea bargaining is feasible. In some situations, the prosecution may be completely unwilling to invest its resources in plea negotiations that may prove fruitless unless it is assured that statements made during the course of such negotiations will be available for use at a subsequent trial. By allowing MRE 410 to be waived, plea negotiations may occur in such scenarios. Further, the ingenuity of competent and zealous defense counsel could prevent a waiver of MRE 410 from being unconditional. For example, defense counsel could insist that waiver be conditioned on self-incriminating statements only being used at a subsequent trial if the defendant is unwilling to accept a plea agreement of a certain nature or that the waiver be limited so that statements would be admissible only for impeachment purposes.

The dissent would also conclude that the defendant’s waiver of rights under MRE 410 was not voluntary. Post, pp 676-677. We do not disagree with the obvious point that any valid waiver of legal rights must be voluntary in the basic sense of the term. However, there is no need to address that point at length in this opinion, inasmuch as there is no claim that the waiver in this case was involuntary.¹² The dissent does not dispute that defendant was informed that any statements he made during the May 7, 1997, investigative subpoena proceedings could be used against him in a subsequent legal proceeding, and that he could refuse to answer any question if a truthful answer would tend to incriminate him. Proceeding to answer such questions in that circumstance obviously constituted a voluntary waiver of any legal right to prevent the answers from being used in a subsequent trial regardless of defendant’s subjective knowledge of the content of MRE 410. Moreover, we note that the record does not support the dissent’s conclusion that defendant was personally unaware of the provisions of MRE 410.

v

Accordingly, we reverse the judgment of the Court of Appeals in part. The defendant’s statements on April 28, 1997, and May 7, 1997, are not rendered inadmissible by MRE 410, and, if otherwise admissible, can be introduced in the prosecutor’s case in chief.

Weaver, C.J., and Taylor, Corrigan, Young, and Markman, JJ., concurred.

1 MCL 767A.5(5); MSA 28.1023(A)(5)(5) requires the prosecuting attorney to inform the person being interviewed of the person’s constitutional rights regarding self-incrimination before asking questions under an investigative subpoena.

2 The court did not explicitly so state, but apparently the ruling was that the May 6 statement could be used for any purpose. The distinction is presumably because the May 6 statement was not “made in the course of plea discussions with an attorney for the prosecuting authority . . . .” That interview involved only the defendant and Investigator Brown.

3 236 Mich App 294; 599 NW2d 789 (1999).

4 The original language of MRE 410 read as follows:

Inadmissibility of Pleas, Offers of Pleas, and Related Statements.

Except as otherwise provided in this rule, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement.

5 The note accompanying the original version of MRE 410 said:

MRE 410 is identical with Rule 410 of the Federal Rules of Evidence and Rule ll(eX6) of the Federal Rules of Criminal Procedure except that the concluding phrase “if the statement was made by the defendant under oath, on the record, and in the presence of counsel” is omitted from MRE 410.

6 In addition, FR Crim P 11(e)(6) is substantively identical to the federal evidence rule.

7 The cases interpreting MRE 410 have generally focused on whether particular statements were made in the course of plea negotiations. E.g., People v Hannold, 217 Mich App 382; 551 NW2d 710 (1996); People v Butler, 193 Mich App 63; 483 NW2d 430 (1992); People v Heffron, 175 Mich App 543; 438 NW2d 253 (1988); People v Manges, 134 Mich App 49; 350 NW2d 829 (1984).

Contrary to the implication of the dissent, People v Jones, 416 Mich 354; 331 NW2d 406 (1982), does not control this case. There was no majority opinion in Jones, but rather there were two minority opinions, each joined by only three justices, that concurred in result but not in rationale. (One justice, Justice Riley, did not participate in Jones.) Thus, neither of the two minority opinions in Jones constitutes binding precedent for future cases.

“The clear rule in Michigan is that a majority of the Court must agree on a ground for decision in order to make that [decision] binding precedent for future cases. If there is merely a majority for a particular result, then the parties to the case are bound by the judgment but the case is not authority beyond the immediate parties.” [People v Sexton, 458 Mich 43, 65; 580 NW2d 404 (1998), quoting People v Anderson, 389 Mich 155, 170; 205 NW2d 461 (1973).]

Accordingly, our decision is not contrary to prior Michigan law as indicated by the dissent because Jones simply did not establish any law (beyond resolving its own case). Moreover, Justice Kavanagh’s opinion in Jones rested on a determination that the statements at issue in that case were obtained involuntarily. Jones, supra at 361-363. While Justice Ryan’s opinion in Jones rested on MRE 410, Jones, supra at 380-382, that opinion included no analysis of whether the protections of MRE 410 may be waived. In sum, Jones does not answer the question at hand.

8 The United States Supreme Court has recently reiterated this principle in New York v Hill, 528 US 110,__; 120 S Ct 659, 663; 145 L Ed 2d 560 (2000):

We have, however, “in the context of a broad array of constitutional and statutory provisions,” articulated a general rule that presumes the availability of waiver, United States v Mezzanatto, 513 US 196, 200-201; 115 S Ct 797; 130 L Ed 2d 697 (1995), and we have recognized that “[t]he most basic rights of criminal defendants are . . . subject to waiver,” Peretz v United States, 501 US 923, 936; 111 S Ct 2661; 115 L Ed 2d 808 (1991).

9 As the Court of Appeals noted, three of the seven justices comprising the majority in Mezzanatto signed a concurring opinion adding a caution about the use of such evidence in the prosecutor’s case in chief. Justice Ginsburg, joined by Justices O’Connor and Breyer said:

The Court holds that a waiver allowing the Government to impeach with statements made during plea negotiations is compatible with Congress’ intent to promote plea bargaining. It may be, however, that a waiver to use such statements in the case in chief would more severely undermine a defendant’s incentive to negotiate, and thereby inhibit plea bargaining. As the Government has not sought such a waiver, we do not here explore this question. [513 US 211.]

10 Congress enacts the Federal Rules of Evidence, while this Court promulgates the Michigan Rules of Evidence. Further, because no statute exists governing the use of statements made during plea negotiations, this Court need not engage in the inquiry involved in McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999).

11 In fact, Mezzanatto involved waiver of ERE 410 protections as a precondition to the plea discussions. Therefore, we do not believe the distinction drawn by the Burch court on this point compels a different result.

12 The trial court found that the statements by defendant were voluntarily, knowingly, and understandingly made. The Court of Appeals affirmed that finding, and no issue is presented in this appeal regarding that conclusion. The trial court found as follows:

The facts before this Court do not indicate that the discussions were entered into unknowingly or involuntarily. Further, the transcripts of the April 28 and May 7 hearings clearly indicate that [defendant] acknowledged that the statements could be used against him should he and the Prosecutor’s office not reach a plea agreement. Therefore, the Court concludes that [defendant] effectively waived the protection of MRE 410.