*1
App
222 Mich
498
498
(ON REMAND)
v YOUNG
PEOPLE
January 7, 1997, Lansing.
April
at
Decided
Submitted
Docket No. 200195.
appeal sought.
1, 1997,
at 9:15
Leave
A.M.
following
Bryce
in the
a bench trial
W.
was convicted
City Detroit, Wendy
Baxter, J.,
M.
of
for the
of
Recorder’s Court
during
possession
second-degree
the com-
murder and
firearm
thirty years’
felony.
of a
He was sentenced to twelve to
mission
respective
years’ imprisonment
convictions. He
two
Appeals,
P.J.,
appealed,
and N. 0.
and the Court of
O’Connell,
J., dissenting),
affirmed the convictions.
J.
Holowka,
(Wahls,
Supreme Court,
granting
in lieu
leave
Appeals
appeal,
for recon-
remanded the matter to the Court of
(1996),
light
People
the defendant any attempted behalf, is a contact retained on his without a difference. distinction complete given 4. The decision in Bender is to be retroactive unexpected in was not or indefensible effect. The Bender decision prior Pеople Wright, decision in v court’s (1992), Mich 140 and did not overrule clear and uncontradicted case law. given by admitting the defendant 5. The error in the statements
to the was not harmless. Reversed and remanded for a new trial. Young (On Remand) Opinion of the Court P.J., dissenting stated that retroactive O’Connell, part, aрplica- Wright Bender
tion of
is not mandated
the decision
because
Wright.
there was no
decision
The defendant’s
convic-
be affirmed.
tions should
Right
—
—
Law
to Remain Silent
Constitutional
Waiver.
represent
*2
that
A
officer who has been told
counsel retained to
attempting
is at the
a defendant
to meet
defend-
subsequently
ant
not
the defendant
initiate
of
informing
of such
without
the defendant
counsel.
—
2. Constitutional
Application
Law
Retroactive
of Judicial Decisions.
generally
given
effect;
be
Judicial decisions
are to
retroactive
com-
plete
application
prospective
generally has been limited to deci-
law;
judicial
overrule clear
if a
sions that
and uncontradicted case
unexpected
light
existing
and
law
decision is
indefensible
conduct,
application
at the time of the
retroactive
of such a deci-
problematic.
sion is
—
Application
Law
Constitutional
Retroactive
of Judicial Decisions.
People Bender,
(1996),
rule established
v
State Appellate (by Defender F. Michael Schuck), for the aрpeal. defendant on
ON remand P.J., Before: and Mackenzie and O’Connell, Wahls, JJ. J. Defendant as appeals his bench right
Wahls,
trial
murder,
convictions
of second-degree
MCL
750.317;
28.549,
possession
MSA
and
of a firearm dur-
felony,
ing
750.227b;
the commission of a
MCL
MSA
App
222 Mich
Opinion of the Court
28.424(2).
defendant
The trial court sentеnced
years’ impris-
thirty years’ and two
of twelve to
terms
respective
We reverse.
convictions.
onment for
Initially,
convictions
affirmed defendant’s
this Court
App
People Young,
panel.
v
in a divided
Michigan
(1995). However,
On defendant admitting these statements abused its discretion police defendant that his because the failed to inform (On Remand) Opinion of the Court family had retained counsel and that counsel had attempted agree. to contact him. We supra.
This case is on all
Bender,
fours with
In
parent
Bender, a
of each of the two defendants
attorney
represent
respective
retained an
their
sons after their sons were arrested. Id. at 598, 600. As
attorney
represent
instructed
retained to
Ziegler, Ziegler’s
police
defendant
mother went to the
station, asked to see
son,
her
and stated that she had
message
Ziegler
attorney.
a
from his
Id. at 598. In
the case of
defendant
it was the
her
self who contacted the
station and asked to
speak with Bender. Id. at
In
both situations, the
police refused to inform the defendants
that
attor
ney
trying
was
to contact them. Id. at 599-600.Mean
interrogated
signing
while, both defendants were
after
Miranda1-warmngs forms.
*4
This case is
from Bender. In all
(this
presented
the cases
case and both situations
Bender), counsel was retained for each of the defend-
family.
ants
the defendant’s
In all the cases, either
family
counsel contacted the
station or the
contacted the
on the instructions
In
of counsel.
[1]
Miranda v
Arizona,
384 US
86 S Ct
1602;
502 498 Mich Court police following refusal of the cases, all the attempted contаct, the the defendants of the inform police that resulted initiated an Accordingly, incriminating if statements. Bender is requires applicable it that we case, to this then 620, reverse defendant’s conviction. case, initial in this In this Court’s majority opinion the facts of Bender were stated that distinguishable from this cаse because here defendant any attempted rights before con- waived his Miranda attorney tact App an retained on his behalf. Mich a In 641. This is a distinction without difference. supra, Mich Chief Justice Brickley’s majority opinion reasoned: invite much mischief if we afford officers [W]e compеtitive enterprise
“engaged ferreting the often out suspect a crime” the discretion to decide when can and can- attorney suspect’s retained not see an who has been benefit. [Citation omitted.] Sergeant case,
In this it was Caudill who received a telephone family indicating call defendant’s had retained an who was at the opportunity requesting to meet defendant. Sergeant 633. It was Caudill who did not notify polygraph defendant of this fact while the being examination was conducted. Id. at 633-634.Fol- lowing polygraph examination, the conclusion of the Sergeant interroga- it was Caudill who initiated a new tion of defendant elicited the admissions now in question. Id. at 634. require
This case does not
us to decide whether a
upon
being
must,
officer
contacted
counsel
actively
defendant,
retained for a
seek out the loca-
*5
People
(On Remand)
v
the
Court
interrupt
ongо-
tion of defendant’s detention or
an
ing interrogation.
simply
Rather,
this case
asks
whether the same
officer who has been told
attempt-
that retained counsel is at the
ing
may subsequently
to meet a defendant
initiate
informing
of that defendant without
him
question
that he has counsel. Bender answers this
negative.
Here, the Court’s decision in Bender was unexpected. not Court addressed this People Wright, same issue in 441 Mich 140; 490 (1992). NW2d 351 In that case, Justices Mallett supported pro- Levin and Chief Justice Cavanagh phylactic Although rule announced in Bender. he separately, chose to write Justice saw Brickley determining concealment as a critical factor in voluntariness of the defendant’s statements. the. Accordingly, deciding Justice cast the fourth Brickley vote to reverse that defendant’s conviction. Id. In light Wright, hardly it can be said that Bender overruled clear and uncontradicted case law. Neither “unexpected” can it be said that Bеnder was or light Wright. “indefensible” in Therefore, Bender is complete given supra Doyle, to be retroactive effect. 222 Mich
Opinion by O’Connell
App 102,
O’Keefe,
at
see also Chow v
104-105;
The final
is whether the trial court’s error
can be considered harmless. The trial court’s error
implicates
right against
both the
self-incrimination
right
§§
1,
17, 20;
and the
to counsel. Const
art
A
Bender,
Reversed and remanded. J., concurred.
Mackenzie,
part
(concurring
dissenting
O’Connell, RJ.
and
part).
agree
I
with the
that the
People
Court’s recent decision in
v Bender, 452 Mich
require
(1996),
suppression
594;
Initially, I would note that Bender is unusual The issues in Bender were framed in terms decision. right (Const a defendant’s constitutional to counsel compellеd 20) right against § 1963, art self- 1, (Const 17). § 1963, 1, However, art inciimination strictly issues were resolved on a extraconstitutional majority opinion The in Bender1 concedes as basis. stating: much, clearly implicates right
This case rather both the to coun- (Const 1963, 1, 20) right against sel art and the self- § (Const 1963, 17). incrimination art I conclude that § interpreting provisions, than these it would be rather appropriate approach prac- to the law more enforcement [Bender, supra p that are at the core this case .... tices (emphasis added).] proceeds speak great then without specificity p libertiеs,” id., 621, of “constitutional civil “closely p guarded legal traditions,” id., 623, and our “inquisitional”system opposed “accusatorial” as justice. Id. The dissent characterized this criminal solely policy approach being “grounded on con- as *7 p cerns, Id., not constitutional mandates.” 644. “policy lying conсern” at the heart of the The may following decision be found in the sen- Bender majority opinion: “[W]e invite much mis- tence of ‘engaged chief if we afford competitive officers the often enterprise ferreting out crime’ the dis- Brickley, Chief Justice [1] majority opinion not the lead in Bender is the cоncurring written by opinion Justice Cavanagh. written by
506
222 Mich
498
Opinion by O’Connell
suspect
cretion to decide when a
can and cannot see
suspect’s
who has been retained for a
p
(citation omitted).
Id.,
benefit.”
622
This
be
paraphrase
true, but, to
in Bender,
dissent
one’s
personal desire to avoid “much mischief,” no matter
how sincere
heartfelt,
does not translate that
right.
regardless
belief
into constitutional
However,
any shortcomings
in the
decision,
Bender
it is now
Michigan. Boyd
the law in
Wv G Wade Shows, 443
(1993).
Mich
523;
The United States Court declined to retrospective application despite afford Miranda its prior supra, pp decision in Escobedo. Johnson, 729- application 734. The Court limited its of the Miranda though majority previ- decision, a clear of the Court ously reasoning had embraced the of Escobedo. In Wright. contrast, there was no decision in Thus, where the United States Court refused Miranda. In fact, Bender, supra, p Bender decision itself calls attention to its parallels with *8 Remand) (On O’Connell retrospectively even where thаt Miranda to enforce majority by a foreshadowed clear decision had been surely retrospective applica- Escobedo, Court in is unwarranted where our tion of Bender majority Wright, decision could not muster Court present alleged in the the decision retrospective application of Bender. mandate case to Bender retro- Therefore, I would decline to enforce spectively and would affirm.