People v. Riggs

Smolensk, J.

Defendant was convicted of first-degree premeditated murder, MCL 750.316; MSA 28.548, and conspiracy to commit murder, MCL 750.157a; MSA 28.354(1). Defendant was sentenced to concurrent terms of life in prison without parole. Defendant appeals as of right. We affirm.

Because of the significance of the constitutional issue presented in this case, our recitation of the facts is necessarily detailed. In March 1991, defendant’s husband, Army Specialist Anthony Riggs, was shot to death in Detroit shortly after his return from the Gulf War. Defendant retained an attorney, who represented her at her April 1991 preliminary examination of charges of first-degree premeditated murder and possession of a firearm during the commission of a felony in connection with her husband’s murder. At the preliminary examination, the district court found that insufficient evidence had been presented with regard to the elements of first-degree murder and, accordingly, determined that there was not probable cause to bind over defendant to the Recorder’s Court for trial on either charge. The district court dismissed the case against defendant and denied the prosecutor’s motion for a stay of execution of the order of dismissal with a personal bond pending an appeal. The district court discharged defendant. See MCR 6.110(F). The prosecutor appealed to the Recorder’s Court, arguing that the district court erred in refusing to consider certain evidence against the defendant.¹ In June, 1991, the Recorder’s Court affirmed the district court’s decision.² In July 1991, the prosecution applied for leave to appeal to this Court.

In April 1992, while the prosecution’s appeal of the district court’s decision was pending in this Court and defendant continued to be represented by her retained counsel, defendant traveled from Michigan to Texas, where she associated with a man named Reggie and a woman named Rosita. At this time, Reggie and Rosita engaged in an illegal drug transaction (the Texas drug transaction). As a result of her association with the Texas drug transaction and its participants, defendant became the target of an undercover drug investigation into the Colombian drug cartel Cali that was being conducted by the United States Drug Enforcement Administration (dea). On February, 23, 1993, and while the prosecution’s appeal of the district court’s decision was still pending in this Court, defendant met in Detroit with two persons she believed to be high-level narcotics dealers to discuss the Texas transaction and various jobs that she could perform for their supposed narcotics organization. The supposed dealers were, in reality, dea special agent Richard Crock and his partner, Joseph Peterson. During this meeting, which was videotaped by the federal agents, defendant detailed her involvement in her husband’s killing.

Crock, who had been attempting to conduct a long-term undercover investigation that was to end shortly, periodically stayed in touch with defendant via face-to-face meetings, which were videotaped, and telephone contacts, which were recorded, during 1993. On May 26, 1993, this Court issued its opinion affirming the district court’s suppression of evidence and determination that insufficient other evidence existed to bind over defendant for trial.³ In June 1993, the prosecution filed with our Supreme Court an application for leave to appeal this Court’s affirmance of the district court’s decision. On November 17, 1993, and while the prosecution’s appeal was still pending in our Supreme Court, defendant was arrested by Crock and other dea agents pursuant to an arrest warrant for federal narcotics violations and was taken to dea lockup facilities in Detroit. Defendant was brought to a conference room in which were Crock and Sergeant William Rice of the Detroit Police Department. Rice was the officer in charge of the state investigation into the murder of defendant’s husband. Crock played a portion of the videotape of his February, 23, 1993, meeting with defendant during which defendant detailed her involvement in her husband’s killing and then left the room. Rice interviewed defendant and obtained an additional statement from defendant. On November 30, 1993, our Supreme Court denied the prosecution’s application for leave to appeal.

A state complaint was issued in which defendant was charged, in part, with first-degree premeditated murder and conspiracy to commit murder. Defendant’s preliminary examination was held on December 14 and 15, 1993. Dea agent Crock was the only witness called to testify. His testimony concerning defendant’s statements was received following the 'district court’s denial of defendant’s motion to suppress such testimony on the ground that it had been obtained in violation of defendant’s Sixth Amendment right to counsel. Crock’s testimony may be summarized as follows. Beginning in spring 1992, Crock had been coordinating an investigation into the Cali drug cartel as a member of a task force made up of DEA agents and members of state and local agencies. Defendant had not been a target of this investigation at its very beginning, but rather had become a target only after she became associated with the April 1992 Texas drug transaction. At some point, a dea agent in Texas, as part of the “investigation run” from the dea’s Tyler, Texas, office, made initial contact with Rice concerning the exact status of Reggie (the man with whom defendant became involved in the Texas drug transaction) and provided Rice with information concerning Reggie. Crock did not direct that this information be given to Rice.

Crock first had contact with Rice in 1986. Concerning defendant, Crock contacted Rice in April 1992, after defendant had become involved in the Texas transaction. At that 'time, Crock became aware of who defendant w;as, that homicide charges had been brought against defendant in a state court, and that Rice was still investigating defendant. Crock’s understanding of the exact nature of the legal proceedings against defendant in April 1992 was only that there had been a dismissal. Crock related to Rice “the specifics going back to. April of ‘92” concerning any possible involvement by defendant with Reggie.

Crock had no contact with defendant after April 1992 until early 1993 when he recruited a new confidential informant who was able to contact defendant. This confidential informant was working with Crock on the Texas transaction. Crock, the confidential informant, and Crock’s partner, Joseph Peterson, tried unsuccessfully to contact defendant by telephone several days before February 23, 1993. However, no contact was made with defendant before February 23, 1993, when Peterson was finally able to arrange by telephone the February 23, 1993, meeting with defendant.

Rice apparently traveled to Texas in January 1993 and obtained statements from Reggie and Rosita. Rice did not undertake to travel to Texas on the basis of any information provided by Crock. Crock knew of Rice’s investigation, but he was not made aware until after his February 23, 1993, meeting with defendant that Rice had obtained statements in Texas. Crock had still not seen the statements obtained by Rice at the time of defendant’s December 14, 1993, preliminary examination.

Although Crock’s testimony is not entirely clear in this regard, it appears that Crock contacted Rice either the day before or the day of the February 23 meeting because “at that point in the investigation we could formulate plans to meet with” defendant. This contact occurred before Peterson contacted defendant by telephone and arranged the February 23, 1993, meeting.

Crock, in his undercover role as a high-level narcotics dealer, thus met in Detroit with.defendant on Feb-' ruary, 23, 1993. Crock had information that defendant wanted to be involved in this meeting. Rice was not in the vicinity of this meeting. The meeting began with Peterson introducing defendant to Crock and indicating that defendant was the person involved in the April 1992 Texas drug transaction. Crock asked defendant to explain what had happened in Texas so. that he could assess the situation because the rules of his organization had been violated during this transaction. As part of their discussion concerning the Texas transaction, Crock and defendant discussed Reggie. Defendant brought up the fact that she was concerned that Reggie was going to turn state’s evidence against her in the murder case. The conversation concerning the Texas transaction lasted over ninety minutes. After discussing defendant’s involvement in the Texas drug transaction, the conversation turned to defendant’s suitability for jobs in the drug trade as a drug or money courier. Crock also learned that defendant had some money that she wanted to invest. At some point in the conversation, defendant told Crock about the appeal and that she was represented by counsel.

After defendant indicated that she was interested in being involved in the drug trade, Crock told her that before they could put her to work they had to address some concerns they had with her past. Crock then turned the discussion to the homicide in the context that he was trying to rectify problems that a confidential informant would be having because of Reggie’s cooperation and that defendant needed to tell him what had happened if she wanted his help. When Crock indicated that he had to know defendant’s history and background, defendant was hesitant at first. Initially, defendant stated that she had nothing to do with the homicide. Crock told her that this story “didn’t add up . . . At some point, Crock listened by way of telephone extension to a telephone conversation defendant had with a confidential source that defendant had identified as being involved in the drug trade. This telephone conversation lasted less than two minutes and had been preplanned by Crock because “we wanted to be in a position to discuss the homicide.” After this telephone conversation, defendant indicated that she had formulated a plan with her brother to murder her husband for financial gain. Defendant provided Crock with the details of how this plan evolved and was executed. Crock met with Rice within twenty-four hours after the February 23, 1993, meeting.

Crock’s primary purpose in meeting with defendant on February 23, 1993, was to further and expand his drug investigation into the Texas transaction, which involved persons he was investigating in the Cali cartel as well as some of his own confidential informants. At that point, Crock did not have a “prosecutable case” against defendant concerning “her involvement in the Texas transaction,” but through the undercover contact, he was hoping to generate such a case.

Although not a primary goal, another goal of the meeting was to get defendant to make some statement about the homicide. Crock’s job as a dea agent was to investigate any felony arising out of any of his investigations. The meeting was preplanned, and Crock was there that day to put everything in a position where defendant would discuss the homicide. Crock arranged to have his February 23, 1993, discussion with defendant videotaped. Crock’s conversation with defendant concerning the homicide had nothing to do with his drug investigation but concerned the homicide with which Crock was trying to help Rice. Crock denied that he and Rice had a prearranged plan to question defendant concerning the murder of her husband.⁴ Specifically, when defense counsel asked “Wasn’t Sgt. Rice calling you saying, hey, man, see what you can do if you can hook up with Riggs, and then see if we can get her to say something; right?” Crock replied “No.” Finally, Crock testified that at the time of defendant’s preliminary examination, charges arising out of the April 1992 Texas transaction were pending against defendant in the federal court.

Following Crock’s testimony, defendant was bound over to Recorder’s Court for trial on the murder and conspiracy charges. Defendant thereafter moved in the Recorder’s Court to suppress certain evidence, including suppression of her statements to Crock on the basis of a violation of the Sixth Amendment, US Const, Am VI, and Const 1963, art 1, § 20. A hearing was held at which Rice, Crock, and defendant testified concerning a Fifth Amendment claim raised by defendant. As relevant to defendant’s Sixth Amendment claim, Crock testified at this hearing that Detroit police officers were assigned to his state and local task force, but that none of these officers were involved with the investigation of the murder of defendant’s husband.

The Recorder’s Court refused to suppress defendant’s statements to Crock concerning her husband’s murder. The court found that defendant had had a right to counsel under the Sixth Amendment and Const 1963, art 1, § 20 at the time she was questioned by Crock in his undercover capacity pursuant to People v Gonyea, 421 Mich 462; 365 NW2d 136 (1985). However, the court concluded that Crock’s questioning had not violated these rights:

As this court looks back to the instant case it concludes that none of the cases cited by defendant is on point or analogous. Massiah [v United States, 377 US 201; 84 S Ct 1199; 12 L Ed 2d 246 (1964)] and [Maine v Moulton, 474 US 159; 106 S Ct 477; 88 L Ed 2d 481 (1985)] both involved law enforcement officers getting co-defendants to cooperate against defendants during the trial phase of the case, which we don’t have here. Additionally, [United States v Henry, 447 US 264; 100 S Ct 2183; 65 L Ed 2d 115 (1980)] involves a situation where an informant on the defendant’s cellblock cooperates against the defendant for pay.

The instant case is a far cry from the cases cited above where the right to counsel was deliberately interfered with by law enforcement officer [sic] who planted people to elicit incriminating statements.

Here we have a separate and distinct ongoing federal narcotic investigation which the dea was genuinely and legitimately pursuing, totally independent of the state homicide case.

This court is satisfied that the narcotics investigation was not a ruse, artifice or subterfuge to get at the defendant. Nor was it generated for the purpose of eliciting incriminating statements from the defendant.

This court believes that the Sixth Amendment and Art I, Sect. 20 right to counsel does not and should not protect defendants who are engaged in or alleged to be engaged in continuing criminal conduct.

Therefore, the Court will deny the motion to suppress the videotapes and the defendant’s conversations with Agent Crock.

The trial court subsequently denied defendant’s motion for reconsideration of its suppression ruling. During defendant’s trial on the murder and conspiracy charges, the video and audio tapes of defendant’s conversations with Crock, including the videotape of the February, 23, 1993, meeting wherein defendant detailed her involvement in her husband’s murder, were played for the jury. In addition, Lessie Riggs, the mother of Anthony Riggs, was permitted to read, over defense counsel’s objection, the last letter Anthony Riggs wrote to her before he returned home from the Gulf War. Defendant was convicted as charged and sentenced. This appeal ensued.

On appeal, defendant premises her first argument entirely on the. Sixth Amendment, i.e., defendant argues that admitting into evidence the incriminating statements she made to Crock concerning her husband’s murder violated her Sixth Amendment right to counsel.

Where federal questions are involved, the Court of Appeals is bound to follow the prevailing opinions of the United States Supreme Court. Betty v Brooks & Perkins, 446 Mich 270, 276; 521 NW2d 518 (1994). Moreover, Michigan adheres to the rule that a state court is bound by the authoritative holdings of federal courts regarding federal questions when there is no conflict. Young v Young, 211 Mich App 446, 450; 536 NW2d 254 (1995); Kocsis v Pierce, 192 Mich App 92, 98; 480 NW2d 598 (1991). However, where an issue has divided the circuits of the federal court of appeals, this Court is free to choose the most appropriate view. Young, supra.

A trial court’s decision following a suppression hearing generally will not be reversed unless it is clearly erroneous. People v Houstina, 216 Mich App 70, 73; 549 NW2d 11 (1996). Although the trial court’s resolution of a factual issue is entitled to deference, particularly when witness credibility is involved, where the claimed error involves the alleged deprivation of a constitutional right, the determination of the Court of Appeals of the issue is guided but not controlled by the trial court’s factual determination. People v Burrell, 417 Mich 439, 449; 339 NW2d 403 (1983); see also People v Nelson, 443 Mich 626, 631, n 7; 505 NW2d 266 (1993).

The Sixth Amendment, as applied to the states through the Fourteenth Amendment, guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right.... to have the Assistance of Counsel for his defence.” The essence of the Sixth Amendment right is the opportunity for a defendant to consult with an attorney and to have an attorney investigate the case and prepare a defense for trial. Michigan v Harvey, 494 US 344; 110 S Ct 1176; 108 L Ed 2d 293 (1990); Moran v Burbine, 475 US 412, 430; 106 S Ct 1135; 89 L Ed 2d 410 (1986). The remedy for a violation of the Sixth Amendment right to counsel is suppression of the evidence obtained in violation of the right. People v Anderson (After Remand), 446 Mich 392, 404; 521 NW2d 538 (1994).

The Sixth Amendment right to counsel does not attach until a prosecution is commenced, that is until the initiation of adversary criminal proceedings by a formal charge, a preliminary hearing, an indictment, an information, or an arraignment. McNeil v Wisconsin, 501 US 171, 175; 111 S Ct 2204; 115 L Ed 2d 158 (1991); Anderson, supra at 402. As explained by the Supreme Court in United States v Gouveia, 467 US 180, 189; 104 S Ct 2292; 81 L Ed 2d 146 (1984):

Thus, given the plain language of the Amendment and its puipose of protecting the unaided layman at critical confrontations with his adversary, our conclusion that the right to counsel attaches at the initiation of adversary judicial criminal proceedings “is far from a mere formalism.” Kirby v Illinois [406 US 682, 689; 92 S Ct 1877; 32 L Ed 2d 411 (1972)]. It is only at that time “that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.” Ibid.

Accordingly, without the initiation of formal charges, the possibility that a pretrial proceeding may have important consequences at trial, standing alone, is insufficient to trigger the Sixth Amendment right to counsel. Moran, supra at 431-432.

The right is offense specific. McNeil, supra; People v Smielewski, 214 Mich App 55, 60; 542 NW2d 293 (1995). Once the right has attached and been asserted by the accused, the Sixth Amendment provides a right to counsel at “critical stages” of the proceedings. Michigan v Jackson, 475 US 625, 632, n 5; 106 S Ct 1404; 89 L Ed 2d 631 (1986); Moulton, supra at 170; Anderson, supra. A critical stage of the proceedings includes government efforts to elicit information from the accused concerning the charged crime. Jackson, supra at 630; McNeil, supra at 175-176. Thus, once the right has attached and been invoked by the accused, any waiver of the right during a subsequent police-initiated custodial interrogation concerning the charged crime is ineffective. McNeil, supra at 175; Anderson, supra.

In this case, defendant relies on Moulton, Henry, and Massiah, a trilogy of cases holding that once the right to . counsel has attached and been invoked the police may not deliberately elicit incriminating statements from the accused through the use of an undercover informant,⁵ for support of her argument that her statements to Crock were obtained in violation of her Sixth Amendment right to counsel. In Moulton, supra at 162, the defendant and his codefendant were indicted in a Maine court for four theft-by-receiving offenses involving, in part, a Ford pickup truck, a Chevrolet dump truck, and Ford automotive parts. Following their entry of pleas of not guilty where they were represented by counsel, they were released on bail. Id. Approximately Vh years later, the codefendant met with the defendant while wearing a recording device pursuant to a deal the codefendant had struck with the Maine police. Id. at 163-166. During the meeting, the defendant incriminated himself in the charged crimes pursuant to the codefendant’s repeated requests to be reminded of the details of the crimes because of his (the codefendant’s) poor memory. Id.

The defendant’s pending indictments were subsequently dismissed and new indictments were issued against the defendant that realleged the pending charges and added additional charges, including burglary. Id. at 167. Following the trial court’s denial of the defendant’s motion to suppress, the state offered at trial the portions of the tapes of the meeting between the defendant and the codefendant involving their discussion of the thefts for which the defendant had been originally indicted. Id. The trial court found the defendant guilty “of burglary and theft in connection with the Ford pickup truck, the Chevrolet dump track, and the Ford automotive parts.” Id. The defendant appealed on the ground that his statements to the codefendant were admitted into evidence in violation of his Sixth Amendment right to counsel. Id. The Supreme Judicial Court of Maine agreed, holding that the defendant’s incriminating statements concerning the charges for which his right to counsel had already attached should have been ruled inadmissible at trial. Id. at 168. The court remanded for a new trial. Id. at 167.

The United States Supreme Court granted the state’s petition for certiorari and affirmed the decision of the Supreme Judicial Court of Maine. Id. at 168, 180. The Court held that incriminating statements concerning pending charges are inadmissible at the trial of such charges if the state, in obtaining the evidence, knowingly circumvents that accused’s right to have counsel present in a confrontation between the accused and a state agent. Id. at 176, 180. The Court concluded that the state knowingly circumvented, and therefore violated, the defendant’s Sixth Amendment right to counsel where the Maine police arranged to record conversations between the defendant and its undercover informant (the codefendant) without the presence of the defendant’s counsel. Id. The Court reasoned that the identity of the party instigating the meeting at which the state obtains incriminating statements is irrelevant. Id. at 175. In response to the state’s contention that the defendant’s statements should not be suppressed because the Maine police had had other, legitimate reasons for listening to the conversation between the defendant and the codefendant, i.e., to investigate the defendant’s alleged plan to kill a witness and to ensure the codefendant’s safety, the Court further reasoned that the fact that the police are also investigating other crimes is irrelevant if, in obtaining the accused’s statements, the state violates the Sixth Amendment by knowingly circumventing the accused’s right to counsel. Id. at 178-180.

In his dissent, Chief Justice Burger contended that no Sixth Amendment violation had occurred because the police had obtained the statements while conducting a good-faith investigation of entirely separate crimes. Id. at 181, 184. The Chief Justice noted that the Court’s previous decision in Massiah had extended Sixth Amendment protections to their outermost point, and stated that “I would not expand them more and well beyond the limits of precedent and logic.” Id. at 190.

In this case, defendant’s Sixth Amendment right to counsel attached at least at the time of her April 1991 preliminary examination. McNeil, supra. There is no question but that defendant invoked her right to counsel. And, I assume that on February, 23, 1993, Crock, in his undercover capacity, deliberately elicited incriminating statements from defendant concerning her husband’s murder. See, e.g., Kuhlmann v Wilson, 477 US 436; 106 S Ct 2616; 91 L Ed 2d 364 (1986); Henry, supra; Massiah, supra. However, this case obviously is factually distinguishable from Moulton, Henry, and Massiah inasmuch as here no charges were pending against defendant when Crock obtained defendant’s statements concerning the murder because the charges that had been brought against her had been dismissed and she had been discharged by the district court.⁶

However, defendant again relies on Gonyea for her argument that her Sixth Amendment right to counsel continued after the dismissal of the charges but during the pendency of the prosecutor’s appeal in the appellate courts of this state. In Gonyea, the defendant gave the police several incriminating statements during an interrogation that followed his sentencing for a conviction of second-degree murder. 421 Mich 467. Following the reversal of his conviction on appeal, these statements were admitted at the defendant’s retrial for the purpose of impeaching the defendant’s testimony at his retrial. Id. at 468.

A majority of our Supreme Court held that the incriminating statements were inadmissible for any purpose. Id. at 465 (Williams, C.J., with whom Kavanagh and Levin, JJ., concurred), 483 (Cavanagh, J., concurring in the result). Justice Cavanagh apparently premised his holding on the ground that the statements had been obtained in violation of the defendant’s Sixth Amendment right to counsel. Id. at 482. Although applying by analogy cases involving the Sixth Amendment, Chief Justice Williams premised his holding solely on the ground that the statements had been obtained in violation of the defendant’s Const 1963, art 1, § 20 right to counsel. Gonyea, supra at 469. In concluding that the defendant’s right to counsel under the Michigan Constitution applied to the defendant’s postconviction statements, the Chief Justice, relying on a case involving facts similar to the facts before the Court, reasoned as follows, id. at 470:

In the instant case, there is no question that the inculpatory statements were deliberately elicited from the defendant after judicial proceedings had been initiated against him. The only question might be whether the judicial proceedings had ended, because the inculpatory statements were not elicited until after sentencing. In this regard we agree with the Court of Appeals that the “right to counsel is applicable to post-trial statements when appeal is not final. See Cahill v Rushen, 501 F Supp 1219 (ED Cal, 1980) [aff’d 678 F2d 791 (CA 9, 1982)].” People v Gonyea, 126 Mich App 177, 183; 337 NW2d 325 (1983). If the right to counsel is to remain appropriately meaningful, the right must extend until the appeal is final. An attorney’s advisory role does not end at sentencing. See Cahill v Rushen, 678 F2d 794-795; Cahill v Rushen, 501 F Supp 1223. This is especially true in light of the fact that the appellate process is not the end of a defendant’s prosecution, and may very well be just a new beginning, in that frequently trial errors result in the ordering of new trials on appeal. See Cahill v Rushen, 678 F2d 794-795; Cahill v Rushen, 501 F Supp 1223. Thus we hold that the defendant here did have the right to counsel after sentencing when he was with the detectives.

Unlike this case, the charges against the defendants in Gonyea and Cahill were never dismissed. Thus, the facts of Gonyea and Cahill could be viewed as falling squarely within the general rule that the Sixth Amendment “bars the use at a subsequent trial of incriminating statements which the government has deliberately elicited from the defendant after indictment and in the absence of counsel.” See Cahill v Rushen, 678 F2d 793 (citing, in part, Henry, supra, and Massiah, supra); but see the opinion of Wallace, J., id. at 796, dissenting on the ground that the Sixth Amendment has no application to events taking place outside the courtroom after sentencing.⁷ Accordingly, while instructive in certain respects, we find Gonyea and Cahill distinguishable and, therefore, not dispositive in this case.

In Claudio v Scully, 982 F2d 798, 799-800 (CA 2, 1992), the Second Circuit Court of Appeals held that the Sixth Amendment right to counsel attached during the pendency of a pretrial appeal. Before formal proceedings were initiated in that case, the defendant confessed to murder as a result of his first counsel’s inadequate advice. The defendant was then indicted in the state trial court and a second attorney was appointed to represent him. Id. at 800. The trial court granted the defendant’s motion to suppress his confession on the ground that his Sixth Amendment right to effective assistance of counsel had been violated by the conduct of his first attorney. Id. The prosecution appealed, and the state intermediate appeals court reversed, concluding that the defendant’s Sixth Amendment right to counsel had not attached at the time the defendant gave his confession because no adversarial proceedings had been commenced against the defendant. Id. The state intermediate appeals court also concluded, sua sponte, that the defendant’s right to counsel under the state constitution had not been violated because, although that right had attached before the defendant confessed, the state right to counsel before the initiation of formal proceedings did not include a state right to effective assistance of counsel. Id. The defendant appealed to the state supreme court, which affirmed the decision of the state intermediate appeals court with respect to the Sixth Amendment issue. Id. at 801. The defendant’s second counsel did not raise any issue concerning the state constitutional right to counsel. Id. The defendant was then tried and convicted.

The defendant subsequently petitioned for habeas corpus relief in the federal district court, contending, in part, that his Sixth Amendment right to counsel had been violated when his second counsel had failed to raise the state constitutional ineffective assistance of counsel claim concerning his first attorney’s conduct during his pretrial appeal to the state supreme court. Id. The district court denied the requested relief. Id.

The United States Court of Appeals for the Second Circuit reversed the decision of the district court with respect to the Sixth Amendment issue. Id. As relevant to this case, the Second Circuit Court of Appeals found that the defendant’s Sixth Amendment right to counsel had attached at the time of the pretrial appeal because “[c]learly, formal proceedings had [been] commenced against” the defendant. Id. at 802. The court also concluded that the defendant’s pretrial appeal to the state supreme court “was unquestionably a critical stage” of the proceedings. Id. In so concluding, the court noted that the prosecution had certified that the defendant’s confession was essential to their case, without which they could not proceed against the defendant. Id. The court also stated as follows:

The Supreme Court in Ross v Moffitt, 417 US 600; 94 S Ct 2437; 41 L Ed 2d 341 (1974), provides additional support for our determination that [the defendant’s] right to counsel had attached at the time of his pre-trial appeal. The Ross Court compared the trial stage to the post-conviction appellate process, and decided not to extend the right to counsel to post-conviction discretionary appeals. The Court wrote that:

it is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State’s prosecutor but rather to overturn a finding of guilt made by a judge or jury below. The defendant needs an attorney on appeal not as a shield to protect him against being ‘haled into court’ by the State and stripped of his presumption of innocence, but rather as a sword to upset the prior determination of guilt.

Id. at 610-11, 94 S Ct at 2443-44. Here, [the defendant] needed [his second counsel’s] assistance as a shield, not a sword. The prosecution initiated the appellate process at a time when [the defendant’s] presumption of innocence remained intact. [Claudio, supra at 802-803].

In Claudio, it is not at all clear from the opinion whether, as in this case, the charges were dismissed against the defendant and he was discharged by the court. Rather, I note that the dissenting opinion in Claudio denominates the prosecutor’s appeal as an interlocutory appeal from the trial court’s suppression order. Id. at 806 (Newman, J., dissenting). Moreover, I also note the following discussion in the dissenting opinion concerning whether the Sixth Amendment attaches to a pretrial appeal, id. at 807:

I have no doubt that [the pretrial] appeal was an important stage, the outcome of which could be critical for [the defendant]. But whether it was a “critical stage” for Sixth Amendment purposes is uncertain.

The Supreme Court has ruled that whatever right to counsel exists at the post-conviction appellate stage of a state criminal case is secured directly by the Due Process Clause of the Fourteenth Amendment, rather than through incorporation of the Sixth Amendment, which protects the “trial-level right to counsel.” . . . The Court has also ruled that there is no Due Process right to counsel in discretionary post-conviction appeals. . . . [The defendant’s] appeal to the [state’s highest appellate court] was discretionary, but it was a pre-conviction appeal. The majority relies on Ross [supra at 610-611], where the Court noted the significant difference between having counsel prior to conviction “as a shield” and having counsel after conviction “as a sword.” Id. I am not certain whether the Supreme Court would afford Sixth Amendment protection to a discretionary pre-trial appeal to challenge the lawfulness of a confession when such protection would not be available directly under the Due Process Clause to challenge the same confession on a discretionary post-trial appeal. But I will assume, for the argument, that the Sixth Amendment attached to the pretrial discretionary appeal and consider the majority’s subsequent steps.²

Thus, although instructive, we find Claudio distinguishable from the facts of this case and, therefore, not dispositive.

“The Sixth Amendment right is a post charge right.” United States v Olsen, 840 F Supp 842, 851 (D Utah, 1993). The Sixth Amendment right to counsel continues until the individual is no longer the accused, i.e., until the individual is either convicted or freed by reason of acquittal or dismissal of the charges. United States ex rel Espinoza v Fairman, 813 F2d 117, 125 (CA 7, 1987), overruled on another ground United States v LaGrone, 43 F3d 332, 337, n 6 (CA 7, 1994).⁸ These statements are in accord with the Supreme Court’s discussion of the Sixth Amendment right to counsel. For instance, in Jackson, supra, 475 US 632, the Court stated that “after a formal accusation has been made — and a person who had previously been just a ‘suspect’ has become an ‘accused’ within the meaning of the Sixth Amendment — the constitutional right to the assistance of counsel is of such importance that the police may no longer employ techniques for eliciting information from an uncounseled defendant that might have been entirely appropriate at an earlier stage of their investigation.” In Moulton, supra, 474 US 176, the Court stated that “[t]he Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a ‘medium’ between him and the State.” Thus, because I view as significant the facts here that the case against defendant was dismissed and she was discharged by the district court, I turn to a consideration of cases considering a defendant’s Sixth Amendment right to counsel where the charges against the defendant have been dismissed.

Several courts have found that the Sixth Amendment right to counsel continues beyond the dismissal of formal charges. In United States v Marshank, 777 F Supp 1507, 1518 (ND Cal, 1991), the federal prosecutor dismissed a 1987 indictment charging drug-related offenses against the defendant because the defendant had failed to cooperate as expected and the evidence against the defendant was otherwise insufficient to convict at trial. However, the prosecutor intended to again indict the defendant after further investigation. Id. Both before and after the dismissal of the first indictment, the defendant’s attorney was providing information concerning the defendant to the federal government during its ongoing investigation of the defendant. Id. at 1512-1518. Following a second indictment in 1990 for drug-related charges, the defendant moved to dismiss the indictment on the ground that prosecutorial misconduct had created a conflict of interest between himself and his attorney, thereby denying him his Sixth Amendment right to counsel. Id. at 1511, 1518, 1524. The government contended that even if it violated the defendant’s Sixth Amendment rights with respect to the first indictment, the second indictment remained untainted, citing the rule that the Sixth Amendment attaches only after judicial proceedings have been initiated against a defendant and arguing that in this case the second indictment involved different charges. Id. The district court rejected this argument:

[T]he government errs in concluding that the defendant’s first and second indictments necessarily represent two distinct prosecutions for the purposes of Sixth Amendment analysis.

In United States v Valencia, 541 F2d 618, 622 ([CA 6,] 1976), the Sixth Circuit rejected an argument, similar to the one offered by the government here, that the defendant’s Sixth Amendment rights had not been violated because the government interference [with the attorney-client relationship] was related to charges which had been dismissed and was unrelated to the subsequent indictment challenged by the defendant. However, the court ruled that dismissal of an indictment against a defendant does not bring an end to the prosecution of the defendant if the defendant is later reindicted on charges which “grow out of the same dealings that were the subject of the [prior] charges.” {Id.}

The Valencia holding reflects the core principles of Sixth Amendment doctrine. The Sixth Amendment attaches after the initiation of judicial proceedings because it is at this point that

the government has committed itself to prosecute, and . . . the adverse positions of government and defendant had solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural law.

Kirby [supra, 406 US 689]. Having engaged in prosecutorial misconduct the government may not evade the Sixth Amendment simply by dismissing the initial indictment and reindicting the defendant on charges stemming from the same investigation. To hold otherwise would allow the government to use its prosecutorial powers to eviscerate defendants’ right to counsel. [Marshank, supra at 1525-1526.]

Noting (1) that the prosecution had dismissed the first indictment in order to obtain additional evidence against the defendant, (2) that the defendant’s attorney had continued to participate in the government’s investigation of the defendant following the dismissal of the first indictment, and (3) that the charges involved in both indictments concerned similar activity, the district court found that “the two indictments are, for purposes of Sixth Amendment analysis, part of the same prosecution of [the defendant].” Id. at 1526-1527. The court concluded that the second indictment was tainted by the government’s violation of the defendant’s Sixth Amendment right to counsel, and dismissed the indictment. Id. at 1526, 1528.

In State v Frye, 897 SW2d 324, 325 (Tex Crim App, 1995), the defendant retained counsel after being charged by complaint in state court with a misdemeanor theft-related offense. The prosecutor subsequently moved to dismiss the complaint, specifically noting that the charge was being dismissed “pursuant to a ‘continuing investigation including this transaction.’ ” Id. Thereafter, a prosecutor and a prosecutor’s intern each telephoned the defendant and recorded the ensuing conversations without the knowledge of the defendant, who stated that he was still represented by counsel. Id. at 325-326. The defendant was subsequently indicted on felony theft-related charges that included the conduct charged in the first complaint. Id. at 326. The trial court granted the defendant’s motion to dismiss the indictment on the ground of prosecutorial misconduct. Id. The state appealed, and the Texas Court of Appeals affirmed the trial court’s dismissal on the ground that the conversations violated the defendant’s Sixth Amendment right to counsel. Id. at 325, 327. The state appealed again, arguing that the conversations had not violated the defendant’s Sixth Amendment right to counsel where the defendant had not been charged with a crime when the conversations occurred. Id. at 327.

The Texas Court of Criminal Appeals disagreed. Id. at 330. The court found that the defendant’s Sixth Amendment right to counsel had attached when the state filed the misdemeanor complaint because the state had, at that time, committed itself to prosecute, the positions of the state and the defendant were adversarial, and the defendant had invoked his right to counsel. Id. at 328. However, the court noted that after the misdemeanor charge had been dismissed, “there was nothing upon which [the defendant] could be convicted, nor were there charges under which the State could conduct a prosecution. . . . Thus, the positions of the State and [the defendant] absolutely changed and they were no longer in legally adversarial positions. This is an important consideration.” Id. The court also noted that a strict reading of cases interpreting the Sixth Amendment indicated that the state had not violated the defendant’s Sixth Amendment right to counsel by initiating telephone conversations with the defendant after the misdemeanor charge had been dismissed. Id. As a countervailing consideration, the court noted the potential for governmental abuse if the prosecution could “dismiss all charges against the accused, [and] put the ‘adversarial’ proceedings on hold to re-initiate questioning without the presence of counsel, thus giving the State the power to unilaterally sever [the defendant’s] constitutional rights and protections.” Id. at 329. The Court held as follows:

We therefore find that even though the dismissal of the misdemeanor information and complaint altered the positions of the parties, such dismissal was accomplished specifically for the purpose of conducting a “continuing investigation including this transaction.” Additionally, the charges set forth in the misdemeanor complaint were again alleged in the felony indictment and aggregated with other theft of services offenses in order to increase the offense grade to a felony. Thus, . . . the offenses charged in the felony indictment were not “new or additional crimes” being investigated, but rather they were substantially related, and in some cases exactly the same as the charges of theft of services originally alleged in the misdemeanor information and complaint. Under the unique facts of this case, we hold that [the defendant’s] Sixth Amendment right to counsel remained when the telephone conversations at issue occurred. We also find the conversations constituted a critical stage for Sixth Amendment purposes. . . . [The defendant] was therefore entitled to assistance of counsel during the interrogations, and his Sixth Amendment rights were violated by the State initiated questioning without the knowledge or presence of counsel. The State’s first ground for review is overruled. [Id. at 329-330.]

Conversely, some courts have found that incriminating statements obtained after charges have been dismissed do not violate a defendant’s Sixth Amend-merit right to counsel. In United States v Skipworth, 697 F2d 281, 283 (CA 10, 1983), a tape recording of a conversation between the defendant and a paid informant for the federal government was presented to the jury at the defendant’s federal trial on federal charges. The informant also testified that government agents had told her that the defendant had been indicted in state court. Id. Following his conviction, the defendant appealed, arguing that the tape recording should have been suppressed because its use violated his Sixth Amendment right to counsel. Id. The Tenth Circuit Court of Appeals rejected the defendant’s argument:

The record contains no evidence of what the state charges were or what happened to them. Defendant says in his brief that the state charges were similar to those for which he was tried and convicted in federal court; that in March 1979, he demurred to the state charges; that his demurrer was sustained; and that the state district attorney “made clear his intentions to appeal said ruling.” . . . None of those statements are supported by the record before us. The government in its brief says . . . that the state charges were dismissed on January 15, 1979. This statement is unchallenged. The defendant filed no reply brief. The tape recording was made on February 20, 1980. Nothing in the record shows that any criminal charges were then pending anywhere against the defendant.

Nothing in Kirby [supra] or Massiah [supra] supports defendant’s theory that when right [sic] to counsel attaches in a state prosecution it carries over to a subsequent federal investigation made after the dismissal of the state charges. A person may not immunize himself from federal investigation by reliance on a state criminal charge previously dismissed on his motion. [Id. 283-284.]⁹

In United States v Martinez, 972 F2d 1100, 1101 (CA 9, 1992), the defendant was arrested in March 1990 and was charged in state court with possession of a firearm by a convicted felon, theft of a firearm, and possession of a controlled substance. At his state court arraignment, the defendant requested counsel. Id. However, the state charges were dismissed, and, therefore, no counsel was appointed for the defendant. Id. at 1102. He remained in state custody because his parole had been revoked upon his arrest. Id.

On September 4, 1990, and two days before the defendant’s custodial time for the parole violation was scheduled to elapse, a federal criminal complaint was filed alleging a charge (possession of a firearm by the defendant, a convicted felon) similar to the previously dismissed state firearm possession charge. Id. On September 6, state authorities released the defendant into federal custody. Id. Pursuant to interrogation by federal agents, the defendant made incriminating statements concerning the gun that was the subject of the charges. Id. The defendant then made his first appearance in federal court, and counsel was appointed. Id. After indictment, the defendant moved to suppress his statement to the federal agents on the ground that their interrogation after his earlier request for counsel on the state charges violated his Sixth Amendment right to counsel. Id. The district court granted the defendant’s motion, and the United States appealed. Id.

On appeal, the federal government argued that the defendant did not have a Sixth Amendment right to counsel at the time he was questioned by the federal agents because there were no charges pending against him at that time. Id. at 1104. The defendant argued that the Sixth Amendment doctrine of “inextricable intertwinement”¹⁰ should be extended indefinitely in time and that, therefore, once a defendant has been charged, he may not thereafter be interrogated about the subject matter of those charges unless his counsel is present. Id. at 1103-1104. The Court of Appeals for the Ninth Circuit rejected the defendant’s argument:

We are reluctant, however, to extend that doctrine indefinitely into the future after the initial charge is dismissed. To do so would extend the prohibition on interrogation outside the presence of counsel to any investigation of a given set of acts, even if the second investigating unit had no connection to the first. It would require suppression of a statement given to federal authorities regarding a federal crime if, unbeknownst to the federal agents, the suspect had been charged for the same substantive acts at some earlier time. Such a broad prophylactic application of the Sixth Amendment runs counter to the reasoning of Moulton [supra] and McNeil [supra], which stressed both the narrow application of the Sixth Amendment right to counsel and the importance of allowing police to initiate and pursue investigations. [Id. at 1104-1105.]

The defendant also argued that his questioning by the federal agents violated his Sixth Amendment right to counsel because the state and federal authorities had cooperated so closely that he was, in effect, subject to prosecution for a single offense by different sovereigns. Id. at 1105. The defendant argued that such conduct did not comport with the policies underlying the Sixth Amendment. Id. In response, the Court of Appeals for the Ninth Circuit stated as follows:

If [the defendant] is correct in asserting that the federal and state authorities worked together in shuffling his charge from the state to the federal system, then the situation is analogous to that in Jackson [sMpra][¹¹] and [the defendant’s] statements should be suppressed. Where there is improper collusion, there is no danger that the second sovereign will unwittingly violate the Sixth Amendment by interrogating a suspect in ignorance that he or she was charged by another sovereign at some time in the past.

There are, moreover, sound reasons for permitting suppression in cases of collusion .... If the dismissal of state charges or the initiation of federal interrogation was a mutual endeavor in anticipation of a federal prosecution, then, as a practical matter, [the defendant’s] Sixth Amendment right not to be interviewed without his counsel was circumvented. He was prosecuted on a charge identical to that of the state, using a statement that the state could not have secured from him if it had proceeded with its prosecution. The key, of course, is the extent of coordination between the state and federal authorities. [Martinez, supra at 1105.]

Because no record had been developed concerning the issue of the state and federal coordination, the appellate court vacated the district court’s suppression order and remanded the matter for factfinding concerning this issue. Id. at 1105-1106. Although declining to rule with respect to the precise acts of cooperative conduct that would amount to collusion to circumvent the defendant’s Sixth Amendment rights, the court stated:

Areas appropriate for factual inquiry include the degree of federal participation, if any, in the state’s decision to dismiss its charges; the degree of state participation, if any, in the decision of federal officers to interrogate and charge [the defendant]; and the degree of joint decisionmaking over the forum in which [the defendant] should be prosecuted. This list is not exhaustive; other areas of inquiry may well suggest themselves to the experienced district judge. [Id. at 1106.]

On remand and after an evidentiary hearing, the district court found that the state prosecutor knew in March 1990 that the United States Attorney was interested in a federal prosecution of the defendant, but that there was no guarantee of a federal prosecution. United States v Martinez, 816 F Supp 644, 645-646 (D Or, 1993). The court found that the state attorney’s awareness of the federal interest did not establish collusion where the state attorney testified that he would have dismissed the state charges against the defendant in any event. Id. at 646. The court found that the federal agent made an impromptu decision to interrogate the defendant and that no evidence was presented that any federal agents knew that the defendant had previously invoked his Sixth Amendment right to counsel. Id. The district court held that these facts did not establish that the state and federal officials colluded to circumvent the defendant’s rights and denied the defendant’s motion to suppress. Id. In so holding, the district court implicitly rejected the defendant’s assertion that the court was required to suppress his statements if it found some degree of communication and coordination between the state and federal officials. See id. at 645.

I begin my analysis in this case by returning to what, as indicated previously, I perceive as the dis-positive fact in this case — the dismissal of the case against defendant and her dismissal by the district court following the preliminary examination with respect to the initial state charges. The relevant court rule provides as follows:

If, after considering the evidence, the court determines that probable cause does not exist to believe either that an offense has been committed or that the defendant committed it, the court must discharge the defendant without prejudice to the prosecutor initiating a subsequent prosecution for the same offense. [MCR 6.110(F) (emphasis supplied).]

Thus, in dismissing the case against defendant and discharging her, the district court determined that the prosecution had failed to demonstrate either that an offense had been committed or that defendant committed an offense. People v Nevitt, 76 Mich App 402, 403; 256 NW2d 612 (1977). However, the discharge did not operate as a bar to another, subsequent prosecution. People v Hayden, 205 Mich App 412, 414; 522 NW2d 336 (1994) (stating that “ [dismissal of a defendant at a preliminary examination is without prejudice to renewal of the charges”). Accordingly, as explained in Frye, supra, 897 SW2d 328, when the case against a defendant is dismissed and the defendant is discharged, the positions of the state and the defendant are absolutely changed — there is nothing upon which the defendant could be convicted, nor are there charges under which the state could conduct a prosecution. The fact that the prosecution appealed the district court’s refusal to bind over defendant for trial does not change this conclusion. Thus, for the purpose of the Sixth Amendment, although the state had committed itself to prosecuting defendant, it would appear that the government’s adverse position was not solidified where the district court, in discharging defendant on the basis of insufficient evidence, necessarily determined that probable cause did not exist to believe either that the charged offenses had been committed or that defendant had committed them. See Gouveia, supra, 467 US 189. Moreover, following the dismissal of the charges and the discharge of the defendant on the basis of the district court’s determination that the evidence was insufficient for a formal accusation to lie against defendant, it would appear that the defendant was no longer an accused for Sixth Amendment purposes but rather again was only a suspect. See Jackson, supra.

In Marshank and Frye, the courts concluded that a defendant’s Sixth Amendment right to counsel continued during the period following the dismissal of the charges against a defendant. However, the considerations that caused the courts in those cases to reach that conclusion are not present in this case. In both of those cases, the prosecution itself dismissed the initial charges with the intent to further investigate the defendant. The courts were concerned that the government could abuse the charging process by dismissing charges against a defendant for the purpose of further investigation and thereby circumvent the defendant’s right to counsel That concern is not implicated in this case where the determination to dismiss the charges against the defendant was an independent factual and legal determination by the district court over the prosecutor’s objection.

In Skipworth, implicitly, and Martinez, explicitly, the courts rejected arguments that the Sixth Amendment extends indefinitely into the future once initial charges have been dismissed. Although these cases were decided in the context of a subsequent federal prosecution following the dismissal of state charges, whereas this case involves a subsequent state prosecution of state charges that had been previously dismissed, we find the reasoning of these cases persuasive in this case. In particular, we note that in Martinez it is clear that the conduct that was the subject of the dismissed state charge was the same conduct that the defendant was thereafter questioned about by the federal agents. I reiterate the Martinez court’s discussion of its reluctance to extend the Sixth Amendment indefinitely into the future once charges have been dismissed:

We axe reluctant, however, to extend that doctrine indefinitely into the future after the initial charge is dismissed. To do so would extend the prohibition on interrogation outside the presence of counsel to any investigation of a given set of acts, even if the second investigating unit had no connection to the first. It would require suppression of a statement given to federal authorities regarding a federal crime if, unbeknownst to the federal agents, the suspect had been charged for the same substantive acts at some earlier time. Such a broad prophylactic application of the Sixth Amendment runs counter to the reasoning of Moulton [supra] and McNeil [supra], which stressed both the narrow application of the Sixth Amendment right to counsel and the importance of allowing police to initiate and pursue investigations. [Martinez, supra, 972 F2d 1104-1105 (emphasis supplied).]

In this case, the record reveals that Crock knew at the time he questioned defendant on February 23, 1993, that the state charges against her had been dismissed, that her case was on appeal, and that she was represented by counsel. Crock questioned defendant for the dual purpose of eliciting information concerning his federal drug investigation and the murder of defendant’s husband. See Moulton, supra, 474 US 179, n 15 (“dual purposes may exist whenever police have more than one reason to investigate someone”). The evidence he derived from this questioning was used in the state trial of defendant.

However, in finding that Crock’s federal investigation was “a separate and distinct ongoing federal narcotics investigation which the DEA was genuinely and legitimately pursuing, totally independent of the state homicide case,” the Recorder’s Court essentially found that “the second investigating unit [Crock] had no connection to the first [the state homicide investigation]” and that there was no collusion between Crock and the state homicide investigation. Martinez, supra. After reviewing the record utilized by the Recorder’s Court in making this finding,¹²1 am not left with a definite and firm conviction that the Recorder’s Court was mistaken. Burrell, supra. Although there was some communication between Crock and Rice, there is no indication in the record that they were coordinating their efforts to question defendant concerning the murder of her husband, nor is there any indication that Rice had any control or direction over either the federal investigation in general or Crock’s questioning of defendant concerning the murder specifically. Rather, the record indicates that Crock acted solely on his own in questioning defendant for the dual purpose of eliciting information concerning the Texas transaction and the murder. More than a bare suspicion is required to show a mutual state/federal cooperative or working arrangement. Olsen, supra, 840 F Supp 849.¹³ Thus, where Crock weis conducting Ein investigation independent of the state investigation, I believe the argument for refusing to extend the Sixth-Amendment indefinitely into the future once the original charges have been dismissed is strengthened.

Finally, in deciding the Sixth Amendment question, I do not find controlling the fact that defendant continued to be represented by her retained counsel when she was questioned by Crock during the time that the charges against her had been dismissed. As explained in Moran, supra, 475 US 430, quoting Moulton, supra at 170, quoting Kirby, supra at 689:

[T]he suggestion that the existence of an attorney-client relationship itself triggers the protections of the Sixth Amendment misconceives the underlying purposes of the right to counsel. The Sixth Amendment’s intended function is not to wrap a protective cloak around the attorney-client relationship for its own sake any more than it is to protect a suspect from the consequences of his own candor. Its purpose, rather, is to assure that in any “criminal prosecutio[n],” US Const, Am VI, the accused shall not be left to his own devices in facing the “ ‘prosecutorial forces of organized society.’ ”

In summary, the point at which the Sixth Amendment attaches “ ‘is far from a mere formalism.’ ” Gouveia, supra, 467 US 189, quoting Kirby, supra at 689. “[I]ncriminating statements pertaining to pending charges are inadmissible at the trial of those charges, notwithstanding the fact that the police were also investigating other crimes, if, in obtaining this evidence the State violated the Sixth Amendment by knowingly circumventing the accused’s right to the assistance of counsel.” Moulton, supra at 180 (emphasis supplied). In this case, no charges were pending against defendant when she was questioned by Crock. Moreover, unlike Moulton, Henry, and Massiah, in which the surreptitious interrogations were conducted by the charging sovereign, in this case the defendant’s statements were obtained by a different sovereign during a completely separate and legitimate investigation. Thus, where the unique facts of this case fall outside the facts of the Moulton line of cases, I conclude that balancing the narrow application of the Sixth Amendment right to counsel and the importance of allowing the authorities to initiate and pursue investigations compels the conclusion that once the case against defendant had been dismissed and she was discharged by the district court her Sixth Amendment right to counsel did not extend indefinitely to Crock’s questioning of defendant during his separate investigation. Accordingly, although I do so on slightly different grounds, I would affirm the trial court’s ruling that the evidence of defendant’s statements did not warrant suppression.

Next, defendant argues that the trial court erred in permitting Anthony Riggs’ mother to read the last letter he had written to her before returning home from the Gulf War. In the letter, Anthony Riggs informs his mother of problems he was having with defendant and states that divorce is wrong, that he wants the marriage to last, but that he will not support defendant if she is doing wrong by the marriage while he is serving his country. The trial court admitted the letter as circumstantial evidence of marital discord under MRE 803(3) (then existing mental, emotional, or physical condition).

Defendant argues that this evidence was inadmissible because Anthony Riggs’ state of mind was not relevant in this case. I disagree. This evidence was admissible as statements “of the declarant’s then existing . . . intent, plan . . . [or] mental feeling.” MRE 803(3); People v Fisher, 449 Mich 441, 450; 537 NW2d 577 (1995); see also People v King, 215 Mich App 301, 309; 544 NW2d 765 (1996) (the defendant’s position that the decedent’s state of mind must itself be at issue was not the approach taken by our Supreme Court in Fisher, supra). The evidence of the marital discord between Anthony Riggs and defendant was relevant to motive and more probative than prejudicial. Fisher, supra at 453.

The letter also details Anthony Riggs’ love for his mother and sister and his pride in his military service. Defendant argues that this evidence was inadmissible because it simply evoked sympathy for Anthony Riggs and his mother and was, therefore, more prejudicial than probative. I agree. MRE 403. However, any error in the admission of this evidence was harmless where, in light of the resolution of defendant’s first issue, the admissible evidence of defendant’s guilt was overwhelming. People v Mateo, 453 Mich 203, 207; 551 NW2d 891 (1996).

Affirmed.

1 See People v Riggs, unpublished opinion per curiam of the Court of Appeals, issued May 26, 1993 (Docket No. 142280).

2 See note 1, supra.

3 See note 1, supra.

4 In this regard, the following exchanges occurred during Crock’s cross-examination:

Q. [Defense Counsel] Okay. And at this point you and Sgt. Rice spoke, and you were acting as an agent on behalf of the Detroit Police Department on behalf of Sgt. Rice, and you agreed to question Ms. Riggs over this homicide, and you had set it up so she could be tape recorded; right?

A. [Crock] I don’t know if I could answer that the way you phrased it.

Q. Oh, my question, sir, was simply that you and Sgt Rice had formulated a plan that you would get Ms. Riggs to confess to what happened in the homicide?

A. I don’t think that is accurate.

Q. Okay, when you and Sgt. Rice planned this meeting, is that correct, discussed this meeting?

A. Discussed, yes.

Q. Discussed the meeting, and you were going to be meeting with her, and he wanted to find out about the homicide right?

A. I don’t think anybody felt that was a real option at that point. Q. I’m sorry.

A. I don’t feel anyone believed that was an option at that point.

Q. You wanted to be in a position — is what I have here of your discussion — you preplanned it, you wanted everything to be in a position where she would discuss the homicide. Those are your words. I wrote them down in quotes. Were they not, sir?

A. Yes.

Q. And that is what you were doing there that day?

A. Yes.

* * *

Q. Sir, what you told now is that this questioning involving her husband’s homicide had nothing, absolutely nothing, to do with your drug investigation; right?

A. That’s correct, yes.

Q. And that you were asking those questions because you and Sgt. Rice had a pre-arranged plan to get her to talk about the homicide on tape; is that right? That is what you told us before, isn’t it, sir?

A. No, I don’t believe I did.

5 Moreover, the concept of a knowing and voluntary waiver of the Sixth Amendment right to counsel does not apply in the context of communications with an undisclosed informant acting for the government. Henry, supra at 273.

6 I note that although Moulton discusses the Sixth Amendment in terms of “pending charges,” the effect of the Supreme Court’s disposition in that case was to remand for a new trial with respect not only to charges that were pending when the state illegally obtained the defendant’s incriminating statements (the theft charges in connection with the Ford truck, the Chevrolet truck, and the Ford automotive parts) but also with respect to charges that were not pending when the state illegally obtained the defendant’s incriminating statements (the burglary charges in connection with the same property). See Moulton, supra at 167. Thus, several courts have indicated that the Supreme Court’s disposition in Moulton created an exception to the offense-specific requirement of McNeil, i.e., that the Sixth Amendment prohibits the use of incriminating statements obtained not only with respect to pending charges but also with respect to uncharged offenses that are “extremely closely related to” or “inextricably intertwined with” pending charges. See, e.g., United States v Laury, 49 F3d 145, 150 (CA 5, 1995); United States v Carpenter, 963 F2d 736, 740-741 (CA 5, 1992); United States v Hines, 963 F2d 255, 257-258 (CA 9, 1992); United States v Cooper, 949 F2d 737, 743-744 (CA 5, 1991); United States v Rodriguez, 931 F Supp 907, 926-928 (D Mass, 1996); United States v Richardson, 837 F Supp 570, 573-574 (SD NY, 1993); Illinois v Clankie, 124 Ill 2d 456, 462-464; 530 NE2d 448 (1988); Whittlesey v State, 340 Md 30; 665 A2d 223 (1995). However, I find that this aspect of Moulton and the resulting “inextricably intertwined” exception distinguishable from this case where no charges were pending against defendant at the time her statements were obtained by Crock.

7 See also the quotation of the dissenting opinion in Claudio v Scully, 982 F2d 798 (CA 2, 1992), discussed later in the text of this opinion.

2 In considering whether the appeal to the [state’s highest appellate court], was a “critical stage” for purposes of a constitutional right to counsel, a third variable is arguably pertinent, in addition to whether the appeal is discretionary or of right, and whether it precedes or follows conviction. The third variable is whether the appeal is forced upon the defendant by the State or initiated by the defendant. The argument for considering the appeal to be a critical stage is stronger where the appeal is initiated by the State. In this case, the assessment of this third factor is complicated by the fact that the State initiated the appeal to the [state’s intermediate appellate court], but the defendant thereafter initiated the further appeal to the [state’s highest appellate court].

8 See also People v Crusoe, 433 Mich 666; 449 NW2d 641 (1989) (declining to follow the portion of the opinion in Espinoza that was subsequently overruled in LaGrone).

9 See also United States v Garcia, 861 F Supp 996, 1006 (D Kan, 1994), in which the district court in a federal prosecution concluded that no Sixth Amendment right to counsel attached to the questioning of the defendant by federal agents, in part, because federal charges against the defendant had been previously dropped by the government; cf. United States v Louis, 679 F Supp 705, 709 (WD Mich, 1988), in which the district court in a federal prosecution suppressed the use of the defendant’s statements to federal agents on Sixth Amendment grounds although no federal charges had been pending against the defendant at the time he was questioned by the federal agents because the defendant had already been formally charged in state court for the same conduct on which the subsequent federal charges were based, the federal agents questioned the defendant at the request of the state prosecutor, the state prosecutor and federal agents viewed a suit by the federal sovereign as interchangeable, and the federal agents understood that the state charges would be dropped if federal charges were brought against the defendant. Although defendant relies on Louis, which distinguished Skipworth, Louis itself is clearly distinguishable from the facts of this case.

10 See note 6, ante.

11 Jackson, supra at 636, held that any waiver of a defendant’s right to counsel is invalid if it is obtained in a police-initiated interrogation following the defendant’s assertion of the right at his arraignment or similar proceeding. See also Martinez, supra at 1103.

12 Proper evaluation of a defendant’s suppression claim requires review of the information known to the Recorder’s Court at the time it denied the defendant’s motion to suppress. Burrell, supra. During discussions with counsel in this case, the Recorder’s Court indicated that in deciding defendant’s Sixth Amendment claim it had relied on the pleadings of counsel, the hearing it had conducted concerning defendant’s Fifth Amendment claim, and the preliminary examination transcript.

13 Although I base my conclusion solely on the record relied upon by the Recorder’s Court in making its suppression ruling, see note 12, supra, I cannot help but note that at trial both Crock and Rice testified that Crock contacted Rice in April 1992, (after defendant surfaced in the federal investigation) only for background information. Crock and Rice both testified that Crock contacted Rice before the February 23, 1993, meeting with defendant only to inform Rice that a meeting with defendant was scheduled. Crock testified that he had no knowledge of the details of the homicide except for what he read in the newspaper. Crock testified that he had no knowledge or recall that either he or others in the federal narcotics investigation received any information concerning the defendant and the state’s homicide investigation from Rice or others in the Detroit Police Department. Rice too testified that he never gave Crock any “particulars” concerning the homicide case. Crock testified that he viewed his contacts with Rice as administrative contacts, not investigative contacts. Crock and Rice both testified that after Crock’s February 23, 1993, meeting with defendant Crock contacted and informed Rice of what happened at the meeting. Rice testified that he did not view the February 23, 1993, tape until more than three months after it was made because it was part of an ongoing federal drug investigation to which he was not privy.