*1 1977] Green v Ernest GREEN PEOPLE v ERNEST Opinion of the Court Law—Attorney and Client—Prosecutorial Inter- 1. Criminal to Defense Counsel—Eth- views With Defendant—Notice ics. improper prosecuting attorney It is and unethical for a to com- notifying without municate with a criminal defendant first consent, obtaining his defense counsel and of who between the defendant initiates' the communication and the prosecutor. Law—Attorney 2. Criminal and Client—Evidence—Prosecuto- Defendant—Admissibility rial of Interviews With Evidence —Ethics. It is unethical for a to interview a criminal defendant getting notifying without defense counsel and first counsel’s permission, an does not render but such interview inadmissible during the interview. evidence obtained Evidence—Photographic 3. Evidence—Discretion. photographic The admission of evidence is within the discretion judge. of the trial Evidence—Photographs—Prejudicial Evidence—Appeal 4. Error. photographs The admission of into evidence is error where the [1, [3, 21 Am Jur [5] [6] [7] [8] [9] Admissibility of Propriety 2, 75 Am Jur 29 Am Jur 29 Am Jur 4 Am Jur 75 Am Jur by allegedly quested drawn 10] 21 Am Jur from his failure to under Griffin v California and instruction that no inferences 2d, Appeal 2d, 2d, 2d, 2d, Trial 756. References 2d, suggestive Trial Evidence 831. Evidence evidence 2d, Criminal Law §§ § Criminal Law and Error 8.§ 775-779. identification § §§ for Points in Headnotes of testify. photographic §§ §§ ALR3d 1335. 222, procedure. 369. against prejudicial identification as affected 309-317. accused should be 39 ALR3d 1000. effect of unre- photographs purpose passion other than to serve no excite prejudice jurors. in the minds of 5. Criminal Law—Evidence-—Burden Proof—Elements *2 Jury—Admissibility Crime—Instructions Stipulations. to Evidence— prosecution establishing
The has the burden of each every and charged beyond element of a offense a reasonable doubt and the jury must be instructed to consider each element any stipulations parties; per between the there is no se rule stipulations negate admissibility of evidence. Homicide—-Evidence—Photographs—Inflammatory 6. Photo- graphs. prejudiced by
A defendant was photographs not the admission of of a murder victim into nothing evidence where there was gruesome inflammatory photographs. or about the Law—Evidence—Polygraph—Alibi 7. Criminal Witness—Cross- examination. polygraph generally Evidence of inadmissible; examinations is however, reversible error did not result where a defendant’s mentioned, response prosecution’s chief alibi witness in questions cross-examination, that he had submitted to a (1) polygraph examination and where defense counsel did not object (2) request instruction, cautionary or a by the reference purposely by prosecu- defense witness was not elicited (3) tor, testimony was isolated and was not pursued emphasized. or Jury—Defendant’s 8. Criminal Law—Instructions Failure by Counsel—Appeal Testify—Request Defense and Error. may A jury trial court not instruct the on the effect of a criminal taking defendant’s not the witness stand in his own defense expressly requests where defense counsel that no such instruc- given. tion be Appeal Application. 9. and Error—Case Precedent—Retroactive Appeals The Court of retroactively will apply not new rules by Supreme established Court absent a clear statement Supreme application. Court that there is to be retroactive
Dissent M. F. Cavanagh, J. Law—Attorneys 10. Criminal and Client—Prosecutorial Inter- Defendant—Appeal view of and Error—Notice to Defense Counsel. during police The admission of questioning evidence obtained of a Ernest Green Opinion op the Court attorney of the was the absence participant prosecutor was a direct reversible error where the conducting preparation and the interview in for counsel; prosecutor absolutely must be absence of defense defendant, prohibited interviewing authorizing from police so, obtaining the consent of to do without ñrst defense counsel of defense counsel that he or the affirmation has that, rights following advised the defendant of his this advice, to be the defendant still wishes interviewed without him. Oakland, L. Appeal Templin, from Robert J. (Docket 13, 1976, Lansing. Submitted December 25298.) No. Decided March Ernest E. first-degree Green was convicted of murder. appeals. Defendant Affirmed.
Frank J. Robert A. General, Kelley, Attorney *3 Derengoski, L. General, Brooks Solicitor Williams, Robert C. Prosecuting Chief Attorney, Richards, Counsel, and Thomas S. Appellate As- sistant Prosecuting for the Attorney, people.
Renfrew, Moir, Burgett, & P. C. (by Dennis J. Kuirsky Stover), and John E. for defendant. Cavanagh J.,
Before: J. H. P. M. Gillis, F. and D. E. Holbrook, Jr., JJ.
J. H. 19, 1974, P. J. On October Gillis, Phyllis McPhail left her home at 8:30 approximately p.m. go to City Hilton Market in the of Pontiac. She took her six-month old son with her. When return, she failed to her husband conducted a search and found the automobile in the market parking lot with the in it and the child keys asleep. police The were called. later,
Two days was Phyllis body McPhail’s App 351 Opinion op the Court River floating approximately found in the Clinton one mile Market. Wounds from the Hilton were found in her back and chest. the murder of charged Phyl-
Defendant was with lis trial commenced on jury McPhail. A was May 19, 1975, jury the May On returned murder, first-degree verdict of guilty of MCLA 750.316; MSA appeals 28.548. Defendant as of right facts, raising four issues. Additional where necessary, will be related within discussion of pertinent issues thereto. 24, 1974, to subsequent On October his arrest and after the Miranda being given warnings,1 defendant interrogated was detective from Department. Pontiac Police The questioning took place near the location where the victim’s body was found. Defendant having denied any knowledge of the murder. 28, 1974,
On again October defendant was inter- rogated by the same detective. Defendant had called the alleged detective to discuss with him harassment guards jail. at Defendant again was given the Miranda warnings again knowledge murder; however, denied defend- give ant did the detective a detailed account of his whereabouts on the evening the murder. 29, 1975, January subsequent
On prelimi- examination, nary detective, along with the case, assistant handling the interviewed jail. This meeting pur- was held suant request. attorney was not informed of this meeting. Defendant was *4 given warnings the Miranda after which he admit- knowledge alleged ted weapon murder of killing, being the fact of a although he denied the perpetrator of the crime. 1 Arizona, 436; 1602; 694; Miranda v 384 US 86 S Ct 16 L Ed 2d 10 (1966).
ALR3d 974 People 355 Ernest Green v Opinion the of Court a Walker2
The trial judge hearing conducted and determined that the statements made during the of would course the interviews be admissible at trial, trial. At the statements were admitted into evidence. first claim is that the trial judge admitting erred into evidence the state- ments by during made the January 29th It is interview. contention that state- ments made an interview in which the (cid:127)prosecutor participated in absence of defense coun- sel are Although inadmissible. a question there is as to whether the has issue been properly pre- served for appeal, argument’s we will assume for sake that it has been preserved. presence
There is no that but for the of prosecuting attorney, statements were ad- Moore, People v missible. 51 Mich App 50-51; Jordan, People v (1974), 214 548 NW2d den, lv 360, 367-369; (1971), 191 58 NW2d den, (1971), cert 908; Mich 776 406 US 92 S Ct (1972). 1616; 31 EdL 2d 818 Disciplinary Rule 7-104 of the of Code Profes- sional Responsibility, Canons and Disciplinary Rules adopted as by Michigan Supreme Court states:3
"(A) During representation course his of a lawyer client-a shall not:
"(1) Communicate or cause another
to communicate
subject
on the
representation
a party
with
he
represented by
knows to
lawyer
be
matter
prior
unless
ing
represent-
he has
consent of
lawyer
party
such other
is authorized
to do so.
law
"(2)
person
represented
Give advice
who is not
counsel,
a lawyer,
than
if
other
the advice to secure
(On
Rehearing),
331;
Walker
Mich
This is to Canon of the Canons of rule similar provided pertinent Professional which Ethics part: lawyer any way upon "A communicate should not represented subject party
the counsel; a controversy of with negotiate undertake to much less should he him, compromise but should deal only the matter with with his counsel.”
The Committee on Professional and Judicial Ethics of Michigan interpreted State Bar Canon as follows: balance, improper prosecuting "On it we hold for
authority to interview a defendant a criminal case knowledge attorney without and consent of his J, 29, Opinion (May record.” 46 Mich State B 1967). There question is no in our minds that this interpretation applies to 7-104. Disciplinary Rule doubt, In case of we now take opportunity this call to the attention of the prosecutors of this state as well as to the remainder of the it state bar that is improper prosecuting and unethical for a attor- ney to communicate with criminal defendant without notifying first defense counsel and obtain- ing his consent who the com- initiates munication. prosecutor’s
Clearly, conduct in this case However, improper. was not one of is ethics rather one but admissibility evidence obtained the com- course of plained of judge interview. The trial determined Ernest Green op Opinion the Court
that
the statements were voluntarily
given no claim that
they
makes
were not.
Rather,
meeting
he contends
resulted in
infringements.4 Although
constitutional
there is a
dissenting minority, ethical violations
such as the
*6
one in this case have not as of yet resulted in a
(now
suppression
Justice)
Judge
of evidence. See
People
v
dissenting opinion
Levin’s
39 Mich
467;
(1972),
App
judge committed reversible error in admitting into evidence, over objection, certain photographs the victim. argues Defendant that because his defense was alibi and the nature of the wounds and the manner they which were inflicted were stipulated trial that photographs had no probative value and served only inflame and prejudice jury.
It
is well settled that
photo-
admission of
graphic
evidence is within the discretion of the
trial
judge. People v Eddington,
551;
387 Mich
198
(1972).
NW2d 297
However,
if the photographs
serve no purpose other
than to excite passion and
prejudice
in the minds of
jurors,
then their
admission is deemed to
People
Falkner,
v
be error.
(1973).
682;
389 Mich
In answering questions cross-examination, chief alibi submitted he had mentioned that witness claims reversi- examination. Defendant polygraph error. ble generally evidence of
Defendant
is correct
People
v
is inadmissible.
polygraph examinations
Frechette,
(1968),
64;
Over defense gave following judge jury: instruction "Now, in the Defendant has not taken the this case law, may stand. Under our the Defendant take stand or elect not to do so. behalf,
"When he does not take the stand in his own right have no to comment on that nor has the Counsel it, any right you no Court to comment about have right in any to take that into consideration in manner arriving your verdict. right may
"It is his
to take the stand
elect not
or he
so,
choose,
any
in
you
do
as he shall
are not
against
that
sense
construe
him.”
People v Ernest Green
Cavanagh,
Dissent M. P.
J.
final
is
allegation
in view of
People v Hampton,
437;
394 Mich
Affirmed. Holbrook, Jr., J.,
D. E. concurred. Cavanagh, F.M. J. (dissenting). I dissent be- I cause find the reasoning of Justice Levin’s dis- sent 39 Mich App 472; *8 NW2d persuasive. more In supra, the breach of the canons was indirect, namely, failing prevent police from questioning a defendant in the absence of his Cavanagh, Dissent M. F. J. Here, attorney. prosecutor partici- was a direct for and the pant preparation conducting The effect of the prose- counselless interview. upon cutor’s presence and his influence defend- ant is is equal uncertainty inestimable. Of whether any produced have been statements at all would had present prior counsel been commence- ment of any interrogation.
If any Rule 7-104 is have Disciplinary mean- effect, ingful must be absolutely pro- defendant, interviewing hibited from or authoriz- so, ing police to do without first obtaining the consent of defense counsel the affirmation defense counsel that he has advised the defendant and, advice, of his rights following this the defend- ant still wishes to be interviewed without him. Failure to do so should result in the suppression of any resulting evidence. I
Accordingly, would hold the conduct of the prosecutor in this case necessitates reversal.