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Docket Number

Docket No. 68962.

Advocates

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Richard H. Browne, Assistant Prosecuting Attorney, for the people. Keller Avadenka, P.C. (by Frances R. Avadenka), for defendant.

Judges

MacKENZIE, J.

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Smart Summary

People v. Clark, Docket No. 68962 (Mich. Ct. App. July 11, 1983)

Factual and Procedural Background

After a jury trial, defendant was convicted of armed robbery (MCL 750.529; MSA 28.797) and sentenced to 20 to 60 years' imprisonment. Defendant appealed by right. This Court previously affirmed the conviction (Docket No. 48218, unpublished opinion of February 12, 1981). The Michigan Supreme Court vacated that judgment and remanded to this Court for reconsideration in light of People v Paintman and Edwards v. Arizona.

The specific evidentiary issue presented on remand was whether testimony concerning statements defendant made to the police—statements admitted in rebuttal to impeach defendant's credibility as prior inconsistent statements—was admissible when those statements may have been obtained in violation of the rules articulated in Miranda and, more particularly, Edwards (and as discussed in Paintman).

Legal Issues Presented

Whether statements obtained in violation of the rule stated in Edwards v. Arizona (and People v Paintman) may be used for impeachment purposes under the federal constitutional cases Harris v. New York and Oregon v. Hass.
Whether the Michigan Constitution requires a different result (i.e., prohibits the use of such statements for impeachment) than the federal rule articulated in Harris and Hass.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v Paintman, 412 Mich. 518; 315 N.W.2d 418 (1982)	Referenced as part of the legal developments (along with Edwards) prompting reconsideration of the case.	The case, together with Edwards, is the ground on which the Supreme Court remanded this case for reconsideration; the court treats the rule stated in Paintman as implicated in the question whether impeachment use is permissible.
Edwards v Arizona, 451 U.S. 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981)	Establishes the rule concerning invocation of the right to counsel and the consequences for subsequent interrogation/statement admissibility.	The court analyzes whether the exception for impeachment (from Harris/Hass) applies when the Edwards rule has been violated and concludes that Harris/Hass apply as federal constitutional law to such violations.
Miranda v Arizona, 384 U.S. 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966)	Establishes the Miranda warnings rule governing custodial interrogation.	The opinion assumes that the statements might have been obtained in violation of Miranda but notes the established rule that such statements may be used for impeachment under Harris and Hass.
Harris v New York, 401 U.S. 222; 91 S Ct 643; 28 L Ed 2d 1 (1971)	Permits use of statements obtained in violation of Miranda for impeachment purposes.	The court relies on Harris as establishing the federal rule permitting impeachment use and holds that Harris applies to statements obtained in violation of the Edwards rule.
Oregon v Hass, 420 U.S. 714; 95 S Ct 1215; 43 L Ed 2d 570 (1975)	Holds that statements may be admissible for impeachment even where the defendant invoked the right to counsel.	The court treats Hass as rejecting the distinction drawn in Esters between Harris and the situation in which the right to counsel was invoked, supporting application of Harris/Hass to Edwards violations.
People v Esters, 417 Mich. 34; 331 N.W.2d 211 (1982)	Affirmed by an equally divided Michigan Supreme Court; three justices declined to apply Harris/Hass to an Edwards violation.	The court discusses the divided opinions in Esters and expressly aligns with Justice Coleman’s view (in Esters) that Harris and Hass apply to Edwards/Paintman violations.
Walder v United States, 347 U.S. 62; 74 S Ct 354; 98 L Ed 503 (1954)	Analogous precedent allowing evidence obtained from an illegal search or seizure to be used for impeachment purposes.	The court notes that Harris relied considerably on Walder, suggesting a broad construction of the impeachment exception.
Schneckloth v Bustamonte, 412 U.S. 218, 226; 93 S Ct 2041; 36 L Ed 2d 854 (1973)	Distinguishes the inquiry into voluntariness of consent from the inquiry into knowing and intelligent waiver.	Quoted in the opinion (via Edwards) to address the relationship between voluntariness of a statement and the voluntariness of a waiver.
Mincey v Arizona, 437 U.S. 385, 397-403; 98 S Ct 2408; 57 L Ed 2d 290 (1978)	Discussed in context of invocation of the right to counsel and admissibility questions.	Used to support the proposition that the voluntariness of the defendant's statement is the relevant inquiry for impeachment admissibility under Harris/Hass.
United States v Hinckley, 672 F.2d 115, 118, 134 (CA DC, 1982)	Example of a case holding defendant's statements admissible for impeachment despite a violation of the Edwards rule.	Cited as a recent decision consistent with the court's conclusion that impeachment admissibility may survive Edwards-rule violations.
United States v Frank, 520 F.2d 1287, 1291 (CA 2, 1975)	One of several federal cases in which statements were held admissible for impeachment despite violations of right-to-counsel protections.	Cited among authorities supporting admissibility for impeachment despite right-to-counsel violations.
United States v Taxe, 540 F.2d 961, 968-969 (CA 9, 1976)	As above: admissibility for impeachment despite rights violations.	Cited as additional authority consistent with the court's approach.
United States v McManaman, 606 F.2d 919, 924-925 (CA 10, 1979)	As above: admissibility for impeachment despite rights violations.	Cited as additional authority consistent with the court's approach.
People v Ricco, 56 N.Y.2d 320; 452 N.Y.S.2d 340; 437 N.E.2d 1097 (1982)	State-court example where statements were held admissible for impeachment despite right-to-counsel violations.	Cited as an example of state-court authority reaching a similar result.
State v Cody, 323 N.W.2d 863 (SD, 1982)	State-court example of admissibility for impeachment despite rights violations.	Cited among state cases supporting admissibility for impeachment.
People v Belanger, 120 Mich. App. 752, 761; 327 N.W.2d 554 (1982)	Cited for the proposition that there is no authority holding the Michigan Constitution requires the results reached in Miranda and Edwards.	Used to support the court's conclusion that Michigan constitutional law does not compel an exception to the federal impeachment rule.

Court's Reasoning and Analysis

The court began from the well-settled federal rule that statements obtained in violation of Miranda may nonetheless be used to impeach a defendant's credibility under Harris v. New York and Oregon v. Hass. It recognized that People v Esters involved a split in the Michigan Supreme Court in which three justices declined to apply Harris/Hass to violations of the rule stated in Edwards (which governs the consequences of a suspect's invocation of the right to counsel).

The opinion considered Justice Williams' attempted distinction (in Esters) between the Harris situation (no invocation of counsel) and the Edwards situation (invocation of counsel). The court observed that Oregon v. Hass rejected that distinction and that Harris had relied upon the Walder analogy (permitting impeachment use of evidence obtained by illegal search) suggesting a broad construction of the impeachment exception.

The court addressed the Edwards passage (quoting Schneckloth) concerning voluntariness and waiver, and concluded that the voluntariness of the defendant's statement—rather than the voluntariness of any waiver of counsel—is the relevant inquiry for admissibility under Harris and Hass (citing Mincey v Arizona for related reasoning).

Concluding its federal-law analysis, the court expressly agreed with Justice Coleman’s view in Esters that Harris and Hass apply as a matter of federal constitutional law to statements obtained in violation of the rule stated in Edwards and Paintman.

The court then addressed Michigan constitutional concerns. It noted that two justices in Esters (Kavanagh and Levin) said they would join Justice Williams on Michigan constitutional grounds, but that at most three justices had adopted that view—insufficient to create binding state-law precedent. The court found no authority that the Michigan Constitution requires a result different from the federal rule and cited People v Belanger to that effect.

Based on this analysis, the court held that the use of defendant's prior inconsistent statement for impeachment was not error.

Holding and Implications

AFFIRMED.

Implications:

Direct effect: The trial court's judgment of conviction is affirmed; the court found no error in admitting the defendant's prior inconsistent statements for impeachment purposes despite the asserted Edwards/Paintman violation.
Federal-law implication: The court concluded that, as a matter of federal constitutional law, the impeachment exception articulated in Harris and Hass applies to statements obtained in violation of the rule stated in Edwards (and relatedly Paintman), with the voluntariness of the statement being the operative inquiry for impeachment admissibility.
State-law limitation: The opinion notes that no binding Michigan constitutional precedent was established on this point; the court found no controlling Michigan authority requiring a different result and thus did not establish a contrary state constitutional rule.

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PEOPLE v CLARK

MacKENZIE, J.

After a jury trial, defendant was convicted of armed robbery, MCL 750.529; MSA 28.797. Defendant was sentenced to imprisonment for 20 to 60 years and appealed by right. This Court affirmed defendant's conviction, Docket No. 48218, unpublished opinion of February 12, 1981, and defendant filed with the Supreme Court a letter application for review of his conviction pursuant to Administrative Order 1977-4, 400 Mich. lxvii. In lieu of granting leave to appeal, the Supreme Court vacated this Court's judgment and remanded the case to this Court for reconsideration in light of People v Paintman, 412 Mich. 518; 315 N.W.2d 418 (1982), and Edwards v Arizona, 451 U.S. 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981). 417 Mich. 851 (1982).

At issue is testimony concerning statements defendant made to the police which were admitted, not in the prosecution's case in chief but in rebuttal, to impeach defendant's credibility by showing that he made prior statements inconsistent with his testimony. It is well-settled that, even assuming that the statements were obtained in violation of the rule stated in Miranda v Arizona, 384 U.S. 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), the statements could be used for impeachment purposes. Harris v New York, 401 U.S. 222; 91 S Ct 643; 28 L Ed 2d 1 (1971); Oregon v Hass, 420 U.S. 714; 95 S Ct 1215; 43 L Ed 2d 570 (1975). However, in People v Esters, 417 Mich. 34; 331 N.W.2d 211 (1982), a case affirmed by an equally divided Court, three justices declined to apply Harris and Hass to a violation of the rule stated in Paintman and Edwards.

In his opinion for reversal in Esters, supra, Justice WILLIAMS drew the following distinction:

"In Harris, supra, the Supreme Court allowed a statement made by a defendant who had not been advised of his right to appointed counsel in violation of Miranda to be used for impeachment purposes. Unlike Harris, the Edwards decision concerned a defendant who had not only been advised of his Miranda rights, but who had invoked his right to have counsel present. Harris is therefore distinguished." 417 Mich. 63.

However, this distinction was rejected in Oregon v Hass. See, for example, the Court's statement of the issue:

"This case presents a variation of the fact situation encountered by the Court in Harris v New York, 401 U.S. 222 (1971): When a suspect, who is in the custody of a state police officer, has been given full Miranda warnings and accepts them, and then later states that he would like to telephone a lawyer but is told that this cannot be done until the officer and the suspect reach the station, and the suspect then provides inculpatory information, is that information admissible in evidence solely for impeachment purposes after the suspect has taken the stand and testified contrarily to the inculpatory information, or is it inadmissible under the Fifth and Fourteenth Amendments?" (Footnote omitted.) 420 U.S. 714-715.

Like Edwards, Hass had invoked his right to counsel. See also Mincey v Arizona, 437 U.S. 385, 397-403; 98 S Ct 2408; 57 L Ed 2d 290 (1978). For a recent decision in which defendant's statements were held admissible for impeachment purposes despite a violation of the Edwards rule, see United States v Hinckley, 672 F.2d 115, 118, 134, fn 119 (CA DC, 1982). For other cases in which defendant's statements were held admissible for impeachment purposes despite violations of defendant's right to counsel, see United States v Frank, 520 F.2d 1287, 1291 (CA 2, 1975), United States v Taxe, 540 F.2d 961, 968-969 (CA 9, 1976), United States v McManaman, 606 F.2d 919, 924-925 (CA 10, 1979), People v Ricco, 56 N.Y.2d 320; 452 N.Y.S.2d 340; 437 N.E.2d 1097 (1982), and State v Cody, 323 N.W.2d 863 (SD, 1982).

Moreover, the Harris decision placed considerable reliance on Walder v United States, 347 U.S. 62; 74 S Ct 354; 98 L Ed 503 (1954), a case in which the Court held that evidence obtained as the result of an illegal search and seizure was admissible for impeachment purposes. The use of this analogy in Harris suggests that the Harris rule is to be construed broadly.

In his opinion for reversal in Esters, supra, p 64, Justice WILLIAMS also attempted to distinguish Harris from Edwards on the baiss of the following language in Edwards, supra, 451 U.S. 484:

"Schneckloth [v Bustamonte, 412 U.S. 218, 226; 93 S Ct 2041; 36 L Ed 2d 854 (1973)] itself thus emphasized that the voluntariness of a consent or an admission on the one hand, and a knowing and intelligent waiver on the other, are discrete inquiries. Here, however sound the conclusion of the state courts as to the voluntariness of Edwards' admission may be, neither the trial court nor the Arizona Supreme Court undertook to focus on whether Edwards understood his right to counsel and intelligently and knowingly relinquished it. It is thus apparent that the decision below misunderstood the requirement for finding a valid waiver of the right to counsel, once invoked."

This language from Edwards does not support a conclusion that Harris and Hass do not apply when the rule stated in Edwards is violated. In Edwards, the lower courts erred by holding that defendant's statement was admissible because it was voluntary without regard to whether defendant's waiver of the right to counsel was voluntary, but it is the voluntariness of defendant's statement which determines whether it is admissible under Harris and Hass for impeachment purposes. See Mincey v Arizona, supra.

In view of the foregoing, we agree with Justice COLEMAN, who held in her opinion in Esters, supra, that Harris and Hass apply as a matter of federal constitutional law to statements obtained in violation of the rule stated in Edwards and Paintman.

Justices KAVANAGH and LEVIN stated that they would, on Michigan constitutional grounds, join in the conclusion reached by Justice WILLIAMS. Because the opinion of Justice WILLIAMS contains no reference to the Michigan Constitution or to any case decided on Michigan constitutional grounds, it is not clear whether Justice WILLIAMS shares their view of the Michigan Constitution. However, as only three justices at the most have adopted this view of the Michigan Constitution, no binding precedent has been established.

Harris and Hass state an exception to the federal constitutional rule established in Miranda and explained and refined in Edwards. There is no authority holding that the Michigan Constitution requires the results reached in Miranda and Edwards. See People v Belanger, 120 Mich. App. 752, 761; 327 N.W.2d 554 (1982). Absent such authority, it is difficult to understand how the Michigan Constitution can require an exception to the rule stated in Harris and Hass for statements obtained in violation of the rule stated in Edwards.

In Harris, supra, 401 U.S. 225-226, the Court explained its reasoning as follows:

"The impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner's credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.

* * *

"The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances."

We see nothing in the Michigan Constitution which casts doubt on the validity of this reasoning. We see nothing in the Michigan Constitution or in Edwards which suggests a reason for a different result when the Edwards rule is violated. Accordingly, we find that the use of defendant's prior inconsistent statement for impeachment purposes was not error.

Affirmed.

PEOPLE v. CLARK