*1
v Patterson
All concurred. the be Professional defendant’s States Constitution. T. juana agreed that the classification was unconstitutional as a violation of tolerated T. constitutionally-protected Equal welfare law was M. Bar which are Kavanagh, Protection Clause of the if of his client. Ethics, we unconstitutional, are specifically was to maintain C. required G. Kavanagh, J., more Such and Swainson concerned with but on the of all Canons conduct must the high 14th Amendment privacy. attorneys J., also grounds standards and 44. ruled not and Williams, pocketbook that it violated that the mari- to should not the United Canons integrity JJ., than all
PEOPLE v PATTERSON
Opinion of the Court Second-Degree Evidence—Sufficiency. 1. Homicide — Murder — support second-degree Evidence was sufficient to murder charge testimony placed was where there which the defendant killing, at the knife, seene of him a linked switchblade by knife-wielding disclosed that deceased was chased youths and stabbed death. [6] [5] [2] [3] [1] [4] 21 Am 40 Am Jur 2d, Homicide 21 Am 40 Am 21 Am Jur Am Jur Jur Jur Jur References 2d, 2d, 2d, 2d, 2d, Criminal Law 443. Homicide 431 et Criminal Law 314. Criminal Criminal for Law 309 et Law § § Points 530. § § § §§ seq. in Headnotes seq. Jury. 2. Criminal Law —Included Offenses —Instructions second-degree judge, prosecution Failure mur- of the trial der, jury lesser instruct on the included offenses of proper upon assault there no where evidence which *2 jury only properly the find an assault. could Eight Criminal Law — to Counsel —Waiver. police may obtain a waiver of a defendant’s to counsel attorney. in the absence of the defendant’s Preliminary 4. Criminal Law — Examination. All is bind a that needed to defendant over for trial is the examining magistrate’s finding charged the crime probable committed and that there was cause to believe that the defendant committed that crime. by Levin, P. J. — — — Law of
5. Criminal Confession Absence Counsel Admissi- bility. police A a statement obtained confessional from defendant during interrogation without counsel defendant’s police, inadmissible, impermissible is it because is for acting continuing investigation who in their the crime were interrogate prosecutor, without the con- for defendant lawyer, representing sent de- who the Tcnewwas at the time. fendant 6. Criminal with Defendant Law —Prosecutors—Communication —Consent of Counsel. prosecuting attorney may permit police or detec- A officers tives to obtain in the absence statements a defendant from counsel when it is Tcnownthat of defendant’s defendant counsel, prosecutor is held re- because the sponsible investigatory police, at least activities for office, in those cases that have reached his because subject lawyer communicating upon prohibited from controversy represented by party with- with a lawyer, out the consent authorised law unless do so. Robert
Appeal Detroit, Court of Recorder’s L. Evans, J. Submitted Division October 11, 1971, Detroit. No. Decided March (Docket 9457.) 1972. Leave to Mich 795. appeal denied, 387 op the Court man- Lawrence P. Patterson was convicted of appeals. slaughter. Defendant Affirmed. Kelley, Attorney
Frank Robert General, J. A. Derengoski, Gahalan, William L. General, Solicitor Prosecuting Attorney, Garnovale, Dominick R. Appellate Department, D. Dock- and Luvenia Chief, fqr Prosecuting Attorney, people. ett, Assistant George appeal. Stone, defendant on P. Before: and R. B. Burns and J. H. J., Levin, JJ. Gillis, Defendant was tried in the Re- J. H. J. Gillis, City jury Court for the Detroit
corder’s second-degree charge of MCLA 750- murder, *3 (Stat 28.549) guilty § Ann 1954 Rev and found .317 manslaughter, (Stat § Ann 1954 MCLA 750.321 28.553). § He to term of 6 to Rev was sentenced appeals years prison. right. He state affirm. We appeal.
Defendant raises six issues on Two sufficiency A these concern evidence. re- view of the record shows that at the close of the people’s support case there was sufficientevidence to charge second-degree murder. There was testimony placed which the defendant at the scene killing testimony which him linked a switchblade knife. It was established the de- Henry Savage, ceased, “Doc” was stabbed three resulting testimony times, in his death. Additional disclosed that the deceased chased knife- was youths. requisite wielding From such evidence the People element v Han- of malice could be inferred. (1962), People sen McKeller 368 Mich 350; App 39 Opinion op the Court (1971), App 30 Mich. 135. Furthermore, this jury beyond a same evidence the could find reason- guilty manslaughter. able doubt defendant though Al- justification evidence of self-defense and was jury it is for determine the introduced, People facts. 29; (1943), People v Moore 306 Mich v Mc- supra. Keller, appeal per-
Defendant
on
also raises
two issues
taining
charge
jury.
the court’s
These in-
objected
structions were not
to below and
thus
properly presented
issues were not
for review. Peo-
ple
(1971),
App
v Turner
31 Mich
44.
note,
We
however, that the instruction' on reasonable doubt
charge approved
People
was consistent with the
(1918),
request
Powers
Also cited as the ad- error the defendant mission into evidence of his confession. record pre- reveals that two occasions the defendant company himself sented to the in the of San- Rosenthal, ford who this time representing charged another defendant who was Savage. Although with the murder of “Doc” there question is some as to whether or not Mr. Rosenthal position represent was in a to, or did, defendant, *4 police apparent the having were aware of his interest in charge
the defendant talk to the officers Savage being case. These officers avail- able on either of these two occasions, the defendant give up did not custody. himself their People v Opinion op the Court Subsequently, himself in to tbe defendant turned unaccompanied by police Mr. Rosenthal. De- thereafter followed an confession extensive fendant’s concerning rights, in- constitutional his instruction right present. cluding have counsel Defend- his specifically asked if wanted Mr. Rosen- ant was present. signed a his thal Defendant waiver of interrogation rights during and at no time made request attorney. hearings for his At two below trial concluded that the court con- defendant’s understandingly voluntarily was fession made. agree finding clearly cannot that We this was errone- People (1970), facts. ous Werner App 26 Mich argues,
The defendant it however, that im- was permissible to take waiver de- fendant’s to counsel the absence of Mr. Recently Rosenthal. this Court held admissible a People statement taken under similar facts v Jor- (1971), agree dan 34 Mich 360. We cannot the defendant’s contention and we find no error. appeals findings
Defendant also
contending
preliminary
that there
examination,
proof to bind
not sufficient
defendant over on the
charge
second-degree
murder and that the use of
confession at the examination was im-
defendant’s
proper. People
(1936),
v White
8 Mich Affirmed. B. Burns, J.,
R. concurred. (dissenting). The obtained a P. J. Levin, Lawrence defendant, from the statement confessional his which admitted evidence P. was Patterson, voluntarily given after trial. The statement was warnings at the time However, were read. Miranda1 given, Patterson was was the statement by during present the interro who impermissible my opinion, gation. for the it was investigation continuing police, in their who prosecutor, interrogate acting crime were lawyer. without the consent his not have been should admitted evidence. statement States, 206; 377 US S In Massiah United (1964), 12 L Ed United 1203; Ct Supreme was denied held that Massiah Court States right of coun- assistance Amendment to the his Sixth against him trial at his “when there was used sel incriminating which words, own evidence his deliberately agents elicited from him had federal and in the absence of indicted after he had been incriminating made state- Massiah counsel.” during in an with automobile conversation ment investigation person was under who another knowledge, had decided without Massiah’s who, agents. cooperate government automobile person and he had the other allowed was owned agents government a radio transmitter to install government agents heard the in the automobile. The device. means that electronic conversation 10 ALR3d 974 Miranda Arizona, (1966). 384 US 86 S Ct 1602; 16 L Ed 2d 694; v Patterson P. J. Levin, incriminating in Massiah statement Since surreptitiously, the Massiah Court had obtained no whether a defendant who occasion consider may, represented by without the counsel advice of to have counsel waive his counsel, interrogation by police. during an Some courts *6 lays take the view that Massiah down a broad consti requiring presence tutional of a doctrine defend lawyer any interrogation, ant’s before further so permitted that defendant cannot be asked or decide whether he wishes to waive benefit of lawyer’s counsel without his advice.2 Other courts may pres take the view that a defendant waive the lawyer lawyer’s ence of his without the benefit of the advice and counsel.3
1 see no need decide this case in constitutional prohibit terms. The Canons of Professional Ethics lawyer communicating upon subject a of controversy represented party by a lawyer with a lawyer. without the of that consent Old 9 provided: lawyer any “A way should not in communicate
upon subject controversy party repre- with a sented counsel; much less should he undertake to negotiate compromise or the matter with but him, only should deal with his counsel.” see concerning State [971] 348 Mass Witt, (CA 5, 1968) . Isby, [3] [2] State, See, also, See Commonwealth v See F2d (1964), [422] Melton, 267 Cal 205 So 2d 675 7; SW2d v defendants not Ricks v United [200] Robles, v 207 Kan App NE2d 304, Lee (CA 7, 1971); Vella, [309] 2d 27 NY2d v United 264, 484; 21 NY2d (Ela Hoss, (Mo, 1967); States, [266] represented by [73] 486 P2d App, 1968) ; (1964). 445 Pa 155; States, Wilson v United Cal [118] 249; [263] Rptr cf. US 98; 322 F2d [234] Commonwealth v. NE2d App 294, counsel. United States v NE2d DC [302] A2d [304] States, [770] (1971) ; 216; 422 (1967); (1968); (1970); People (CA 5, 334 F2d 398 F2d 331 [65] McCarthy, Colebrook (1971); State v Cassell, 1963), 964, but 39 Levin, J. P.
This was interpreted the Commit- tee on Professional and Judicial Ethics of the State of Michigan Bar mean: “It is improper lawyer interview an ad verse with respect to the facts party case, without consent counsel, that despite the fact such will be a at the trial.” party (Emphasis witness supplied.)4 with prohibition against communication an ad
verse without consent party prior lawyer stated representing party many so words in new provides Bule which Disciplinary 7-104, a lawyer may “communicate or another to cause communicate on the subject representation he knows to be party in that matter unless has consent prior such lawyer representing other party or is author ized law to do so”. (Emphasis supplied.)5 canons, both the and the old and the new new, *7 rules have been disciplinary adopted the by Supreme 41, Opinions Opinion of the on Committee Professional Ju- and Ethics, Journal, May, 1959, dicial see Bar p Similarly, Mich State Opinion Association, Bar American Canons of Professional Ethics, Opinions and Judicial of on Committee Professional Ethics Grievances, p (1947); Opinion 187, and p Opinion ABA on Michigan Committee Professional and Judicial Ethics of the Bar, 10, infra, State text cited at fn accompanying and discussed in in and fn 11. 7-104, DR 385 Mich Ixiii. accompanying The committee notes disciplinary the new rule do not elucidate as to the kind of situation the had in mind committee provided exception it when party an for communications an adverse when Perhaps “authorized law do so”. the situation following paragraph described the was in mind: “Where insured represented company who, is counsel for an insurance because of protect his company, desire to will not advise insured of all rights risks, may his the sel”. duty and it be the and of counsel injured party insured, warning so to coun- advise the after such Legal Drinker, (Columbia 1953), VII, Ethics Univ Press ed ch p 203. may, provided prosecutor Be that as it law has not or infra; exception. minions with a blanket See fns 10 and but also, see, fn 14. Levin, P. J. Michigan,6 have the force the State Court of law. against prohibition communication indirect
The party spelled in the out new disci- an adverse with plinary — following language: an- “cause rule in represen- subject communicate other development. not a new tation” —is Bar Association Committee on American it Grievances was ruled Ethics and Professional that: municipality permit of a law officer
“For the police to obtain written state- officers or detectives injuries after such claims for of claimants ments put for atten- of an the hands have been knowledge, law has of which fact the officer tion, 9.” violation upon that “it is encumbent
The committee reasoned practice attempt clandestinely not to party on a who is counsel. coercion explanation, may well it is known be Whatever municipalities injuries against are that claims for brought by poor, many ignorant, il- and even times having persons. literate fact officers The persons type put or interview is to detectives of this say disadvantage. can them at a serious Who result would not if the client were same obtain intelligent intelligent educated. Even layman legal procedure. but little of educated knows presence policemen or detectives, such average layman, rather to the role, connotes, investigation Obviously of a criminal matter. such practice reprehensible.” ruling continued: committee’s
*8
May, 1959, p 12; and,
conduct actively participate therein. did not unavailing contend that the “It would be supervision not under officers or detectives are are but rather under officer, the law and control of municipality. supervision ‘The control of the and attorney his should not advise or sanction acts Opinion 75. not do.’ client which he himself should persists in forth that if a client 16 also sets attorney, contrary improprieties the advice of his Opin relationship. lawyer should terminate ex rel Colorado Bar Association ion 44. P2d 577. 306, 1 Colo White, duty not con “Furthermore, obligations solely client. some fined to his He has respecting Canon Bar. brethren at the the court things, among candor and 22, deals with other part lawyers. other conduct on the fairness to Such municipality not, think, law we officerof dealing lawyer candor and with a brother fairness.”7 recently Opinion authority re- 95 was Special American Bar Association
affirmed when Ethical cited on Evaluation of Standards Committee precedent support principal Disci- of new it as provides plinary follows: Rule which 1-102, “Misconduct. * * * “(A) not: A shall Judicial p Grievances, Appendix Opinion ABA Ethics, Opinions of Committee A, pp p 296. American Bar (1947). noted Association, Similarly, Drinker, on Professional Ethics Canons of see Legal ABA Professional Ethics, Opinion 79, op cit *9 v Patterson by Levin, P. J. Dissent Disciplinary “(2) through Rule Circumvent of another.” actions disciplinary
DR other 1-102, like the rules, adopted Supreme our Court.8 person may legitimately through No do others prohibited doing what he is from himself. Unless a prosecutor investigators accountable for what is his regard pre do—without to whether of aware they doing cisely particular what at a are time— prosecutors encouraged investiga bewill to leave unsupervised of tions police, crime to the control of the prohibiting and the rule communication with party prosecutions, adverse will, as to criminal empty prosecutor form become a of words.9 The responsible investigatory must be held activity police, of activity taking least such place after the case has reached his office. prosecutors of this have been state alerted binding April
the fact Canon 9 is on them. On 1965 the Committee on Professional and Judicial Michigan Opinion of Ethics Bar State issued its stating improper “It that, is unethical and for a prosecuting authority to interview a defendant in a knowledge criminal case without the and consent of (Emphasis supplied.)10 of record”. rendering expressly 202 the committee dealt with a factual situation where, here, prosecut requests defendant an interview with ing authority.
The committee’s
choice words was not acci-
By using
“prosecuting authority”
dental.
the term
prohibition
the committee made clear
8
Before 202 the issuing Opinion committee solicited the views of Prosecuting Attorneys Wayne, Macomb Oakland, and Counties Attorney General Michigan State the United States for the Eastern Attorney District Mich igan, received no response except United States Attorney. said, committee “We *10 perforce conclude that they have offer nothing to for way justification the under practice discuss ion”.11
The police practice of an questioning accused person first without obtaining the consent of his lawyer so that the prosecutors notorious of this state must be A prosecutor aware it. who fails to put a to this unlawful stop practice must be deemed to have authorized it. if a law firm Surely, repre- a concern senting business became aware that the concern’s investigators were ad- interviewing versary parties who were represented counsel without first obtaining consent, counsel’s it would if it not, failed to insist that its investigators client’s practice referred in Opinion described 202 as follows: general “The counsel Michigan inquires of the State Bar of concerning propriety the Committee the ethical interviewing of the a of defendant in a prosecuting authority criminal a case without knowledge attorney. of his usually He notes that such arises instances when a requested defendant himself has private a inter- prosecutor view with knowledge the approval without the or of his own counsel. general “The understanding counsel adds his prosecuting that au- justification thorities advising granting claim for such interviews without attorney, upon ground defendant’s that the inter- view has requested by been so the defendant”. 46 Mich Bar State Journal, May, 1967,pp 29-30. appears that., It despite this record the issuance of 202, Wayne County recognize obligation Prosecutor does not an gave observe Canon 9. Patterson two statements, confessional informal police, shortly statement to the and a formal thereafter prosecutor. statement to Thus, ease, prosecutor this him- self, as police, well as the violated the canon. v Patterson by Levin, P. J. activity, its be heard claim from such desist principle, neglect benign defense. same a On the stultify not be so them- prosecutors should heard lawyer may language DR 1-102, selves. through disciplinary actions rule “circumvent of another”. on November stabbed the victim was
In this case promptly Gary and arrested Holleran was 17,1968. a warrant charging him murder authorized prosecutor thus, issued. The matter was, prosecutor already when, in the hands defendant Patterson en- mid-December, 1968, continuing Clearly, picture. inves- in their tered the tigation interrogation detec- witnesses, working assigned to this case were tives prosecutor. subject supervision were to the the defendant Patter record clear that is also represented by lawyer when inter son was lawyer rogated, and that his had not consented to interviewing Patterson without the being present. previ Rosenthal,
Mr. Sanford who Gary ously represent Holleran, had undertaken to arrangement with Patterson was testified represent would he, unless Rosenthal, *11 against a him if a and, and until warrant issued longer no warrant were then he could issue, to police represent him.12 Mr. Rosenthal that said representing aware He that was Patterson. he were also said he surprised that when that he was learned interrogated by police, Patterson had been and expected during any in that he to be such terrogation. testimony it Prom this must be in ferred that Mr. Rosenthal did consent police interrogation it is Patterson; not claimed that he did consent.
was [12] interrogated by A warrant against police. Patterson was not authorized until after he Levin, P. J. police supervisory Bostick, Lieutenant Hershall a it in testified that was Bureau,
officer the Homicide impression representing was that Mr. Rosenthal who worked Maniaci, Patterson. Detective John supervision, that under Lieutenant Bostick’s testified stating a from Lieutenant Bostick received note Mr. Rosenthal with Patterson that had come speak to Maniaci. desired to Detective Detective Maniaci was out Mr. Rosenthal and Patterson subsequently returned left; Patterson on his own interrogation police initiative and his took place at time. Detective Maniaci said that questioned, Patterson was under when he arrest was questions put any and that before other were himto Patterson asked “if he was wanted his present, if he wanted Mr. Rosenthal” he re- sponded Indisputably, that he not. did represented by counsel and the —the prosecutor’s investigators repre- that he was —-knew they questioned sented counsel before him. judicial opinion I have found no a where confes sional statement obtained violation suppressed.13 been I has did find I However, writ had we Amendment refused opinion in known to done the defendant’s 428 F2d 1406 corpus proceeding to in the the matter 5, 1968), where the Circuit In Schants 13See, however, Coughlan find the Ninth because sent lawyer, accompanying text, expressed no Goughian. see the because, reversible error”. psychiatrist v United jury. (CA 9, without Circuit Eyman, its to counsel at all psychiatrist. prosecutor’s Wilson v United “Under 1970). United States Court of approval review case when his refusal so States, affirmed a holding infra, see the facts and F2d 11 lawyer’s 391 F2d 371 See, state court infringement the defendant who was The United States Court Judge Hamley’s but did not act on that district also, critical (CA States, Court consent. United States v Four circumstances court order conviction, relied stages 1969), of the defendant’s Sixth (CA 9, 1968), Appeals cooperate The defendant F2d dissenting and the a Federal hateas Judge Hamley’s for the Fifth granting of Appeals prosecutor prejudice discussed this case view opinion made Star, (CA had *12 Levin, P. J. my what the should be. rule in view alone am not Appeals, Judge York Court the New Fuld of Chief recently follows: wrote as dissent, in my must enforcement officials too, law view, “In custody person questioning a in once desist an un they that he is learn affirmatively lawyer waive his both he and his less dealing case, awith civil we counsel. Were to for be unthinkable it would how trivial, matter no the party speak party lawyer to the other for one to attorney. Indeed, our of the latter’s in the absence explicitly such condemn and forbid ethics canons of (American of Professional Code Bar Assn. conduct Responsibility, Disciplinary 7-104, Rules 7, expected Certainly, [A],[1]). be or is to no less are cases in criminal demanded when defendants involved.” 162; 263 27 NY2d Robles, (1970). NE2d Ap- Hamley
Judge Court of United States as wrote peals dissent, also in for Ninth Circuit, follows: Ethics, of Professional
“Canon 9 the Canons lawyer provides margin, a quoted should party represented by coun- not communicate govern purport not this canon does sel. While interrogating non-lawyers, such conduct of place responsibility case, officers this it does upon prosecuting lawyers not or take sanction, ing F2d was cumulative. viewing infra. conviction Columbia need to order that be In Mathies episode 312, 316, appellant’s a defendant Circuit, because the Court concluded that will United the interview”. new trial United counsel should cited Chief (1967), States Court of in the absence arise States, Canon 9 in Justice merely Chief Justice again (Emphasis have been Burger US criticizing press of his Appeals (then Judge) Burger, supplied.) future”, wrote, home our given DO the evidence obtained for “We 98, 102, and, but affirmed the firm conclusion See opportunity assume “we see District also fn for inter writ no *13 482 39 by Levin, P. J.
advantage obtained of, statements Government agents person represented by from a in the counsel, Coughlan v absence such counsel.” United States, 9, 1968). (CA 391 F2d Judges opinions Hamley expressed Fuld and their paralleling in the of a context factual situation facts in case that the sense inter rogations prosecutor, were detectives, not a willingly gave the defendant the confessional state prodding ment without or undue influence.14 Patterson’s confessional statement did not exist police interrogated before the him in the absence of lawyer. yet violation While of Canon 9 has not only held been to be of constitutional dimension, remedy effective for a violation of the canon tois deny prosecuting authority the benefit of the illegally-produced evidence. Patterson has no mean- ingful remedy law or before Bar. State only remedy suppression. recently
Mr. Justice Swainson had occasion to point exclusionary applied out that the rule has been persons rights where cases than accused other rights their constitutional had been violated. He said that “for excesses of conduct” a court may justifiably Similarly, exclude evidence.15 see (CA Williamson States, United 311 F2d 441 1962), gathered government where evidence paid contingent informer who was fee was suppressed.
Mich State Bar ecutions. ing text) and (1969). only See in civil cases and The double standard rides Supreme State view Sinclair, Court Nicholson, expressed was not Washington Mich 91 (see 77 Wash 2d this fns again. meant opinion, (1972). 10 and 11 and has flatly apply 463 P2d held, criminal accompanying contrary to 9 is bind- pros-