People v. Sexton

Cavanagh, J.

(dissenting). I cannot join the majority. It is the second rung on an analytical ladder descending from the precedent established in People v Bender, 452 Mich 594; 551 NW2d 71 (1996). The first step away from Bender occurred when this Court gave Bender prospective application only. People v Sexton, 458 Mich 43; 580 NW2d 404 (1998). At that time, I shared Justice Brickley’s misgivings about the decision to limit Bender. Those misgivings have not disappeared with the passage of time.

In Bender, a majority of this Court held that a suspect has a constitutional right to be advised of the fact that counsel has been retained. Bender, supra at 621 (Brickley, C.J., concurring). Bender recognized that the right to counsel and the right against self-incrimination guarantee not only that an accused be informed that he is entitled to counsel, but also that he has counsel. Id. In the present case, the police kept an accused away from his attorney during an interrogation. I cannot support an approach that purposely shields the light that Bender provided.

This defendant’s statements should have been suppressed. The majority reaches its result by determining that the defendant’s statements were voluntary under the totality of the circumstances. Vohmtariness is only one part of a two-part test; waiver must also be knowing and intelligent. Miranda v Arizona, 384 US 436, 444; 86 S Ct 1062; 16 L Ed 2d 694 (1966). The voluntariness issue would not now be before this Court had the Court previously applied the Bender rule.

This defendant was afflicted by the same wrongs that gave rise to this Court’s Bender decision. Those wrongs have not diminished even in the face of this Court’s decision to handcuff Bender. Neither have the defendant’s fundamental rights disappeared. I joined Justice Brickley’s well-composed dissent when this Court decided that Bender should be given prospective application. Sexton, supra at 69 (Brickley, J., dissenting). The concerns Justice Brickley enunciated in that dissent are equally present today.

Kelly, J., concurred with Cavanagh, J.