People v. Sexton

580 N.W.2d 404, 458 Mich. 43

• Court: Michigan Supreme Court
• Decided: July 1, 1998
• Docket: 108195, 108749, 109143, Calendar Nos. 3-5
• Status: Published

Opinions

Boyle, J.

We granted leave to determine whether this Court’s holding in People v Bender, 452 Mich 594; 551 NW2d 71 (1996), should be applied retroactively.¹ Finding that it should not, we reverse the decision of the Court of Appeals in each case and remand for further proceedings consistent with this opinion.

I

PEOPLE v SEXTON

On September 8, 1993, Damian Phillips was shot and killed. Defendant Sexton and two other young men were at the scene of the crime when the police arrived. After initial questioning, they agreed to go to the police station and give statements about the incident.²

Detective Melvin Marchlones questioned the defendant.³ According to testimony given at the suppression hearing, Marchlones told the defendant that he was not under arrest and could leave at any time. In the defendant’s first statement, taken about 2:23 P.M., defendant denied all culpability.

Sexton’s statement was not consistent with those of the other men. Upon being confronted with the inconsistencies, he gave another statement about 4:00 P.M., claiming that the gun slipped through the victim’s fingers, fell to the floor, and discharged. He testified that he asked to telephone his father before making the second statement and was told that he could do so “later.”

Defendant agreed to take a polygraph test. Marchlones reminded him that he was not under arrest and reviewed the Miranda⁴ warnings. Defendant indicated that he understood and agreed to waive his rights. Before going to Southfield for the polygraph test, defendant gave a third statement, claiming that the gun discharged accidentally.

Defendant was taken to the Southfield police station for a polygraph examination. Before the test began at 7:10 P.M., the polygraph examiner reviewed the Miranda rights. Mr. Sexton again stated that he understood the rights and would waive them.

In the meantime, at approximately 4:45 P.M., the defendant’s father arrived at the Hazel Park police station and attempted to see his son. His request was denied. At approximately 5:00 P.M., the senior Mr. Sexton contacted his attorney, Neil Miller. Shortly thereafter, Mr. Miller called the Hazel Park Police Department, identified himself as defendant Sexton’s attorney, and left a message asking that “whoever was holding” the defendant to return his call. Mr. Miller first arrived at the police station at approximately 7:00 P.M., where he informed the desk officer that he represented the defendant, that he wanted to see his client, and that he wanted all questioning stopped. Mr. Miller was told that the defendant was not at the police station, but was not told where he was. The desk officer refused to contact Marchlones. Miller left the police station and wrote a statement reiterating that he was defendant Sexton’s lawyer and that he wanted all questioning stopped. He returned to the police station at 10:20 P.M. and delivered the statement to the desk officer, who paged Marchlones and told him that there was a lawyer at the station who wanted to speak with Corey Sexton.⁵

After the polygraph was completed, the examiner advised Sexton that in his opinion defendant’s answers had not been truthful. Defendant’s response was monitored and he admitted that he intentionally shot Phillips. Sexton was then placed under arrest and again advised of his constitutional rights. Defendant stated that he understood the rights and did not want to talk to a lawyer before further questioning. Defendant gave a recorded statement in which he again admitted that he intentionally shot his cousin. This final statement was given at 11:35 P.M.

The defendant was charged with first-degree murder, MCL 750.316(l)(a); MSA 28.548(l)(a), and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). The defense filed a motion to suppress the defendant’s inculpatory statements, but the trial court found that the statements were freely, knowingly, and voluntarily made, and denied the motion.⁶

Defendant pleaded guilty to second-degree murder, MCL 750.317; MSA 28.549, conditioned on a right to challenge the admissibility of the confessions on appeal. Sexton was sentenced to twenty to forty years for the offense, plus two years for the felony-firearm violation.

While defendant’s appeal was pending, this Court decided People v Bender, supra. In an unpublished opinion per curiam, issued December 20, 1996 (Docket No. 177061), the Court of Appeals reversed the decision of the trial court, concluding that suppression was mandated regarding all statements made after 5:30 P.M.^{7 8}We granted the prosecutor’s application for leave to appeal.

PEOPLE v DAVIS

Defendant Clifton Davis was charged with first-degree murder, MCL 750.316(l)(a); MSA 28.548(l)(a), and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), in connection with the shooting death of Allen Murriel on March 10, 1993.®

When the police arrived, the defendant and his brother were arrested. Defendant’s mother retained Elliot Margolis to represent her sons. Mr. Margolis and Mrs. Davis agreed to meet at police headquarters at 8:10 P.M.

According to testimony given at the suppression hearing, the defendant signed a waiver of his Miranda rights and agreed to be interviewed at 7:45 P.M. Sergeant Deborah Monti began questioning him at police headquarters.

Mrs. Davis and Mr. Margolis met at the front door of police headquarters at 8:10 P.M. Mrs. Davis paid Margolis the agreed retainer fee, and he immediately went upstairs to locate the defendant and his brother. Margolis told the desk officer that he had been retained to represent the Davis brothers. The officer told Margolis that he was not certain of the location of Sergeant Monti or the defendant.

According to the testimony of Sergeant Monti, she began taking defendant’s statement at 8:20 P.M. and finished at 9:20 P.M. Mr. Margolis’ version of the facts differs slightly. He testified that he saw Monti move Edward Davis from one room to another at 8:45 P.M. According to Margolis, Monti told Margolis at that time that she had already taken a confession from the defendant.

At trial, the defendant moved to suppress the confession, contending that suppression was required because the police failed to tell defendant that his counsel wanted to see him. The trial court granted the motion to suppress pursuant to People v Wright, 441 Mich 140; 490 NW2d 351 (1992). The trial court acknowledged the possibility that the defendant had given at least part of his statement before the attorney arrived, but suppressed the entire statement.

The Court of Appeals granted the prosecutor’s interlocutory application for leave to appeal. While that appeal was pending, this Court decided Bender. The Court of Appeals issued a peremptory affirmance of the trial court order. We granted the plaintiff’s application for leave to appeal.

PEOPLE v YOUNG

James Curenton was with a group of friends on the evening of September 7, 1991. Dondrea Smith and Joseph Broom, two of Curenton’s friends, testified that a man wearing a ski mask and carrying a gun came out of an alley. Mr. Smith testified that he thought nothing of this pedestrian until the gunman started shooting.⁹ At that point, the witness and the rest of the friends ran. The gunman chased Curenton and shot at him. After Curenton was on the ground, the perpetrator took a gold chain from the victim’s neck and rummaged through his pockets.

On September 9, 1991, defendant was arrested for the murder of James Curenton. Defendant was placed in a holding cell for the night.

At approximately 9:20 A.M. the next morning, Mr. Young was questioned about the shooting by Sergeant Lee Caudill of the Detroit Police homicide unit. According to testimony given at the evidentiary hearing, defendant was apprised of his Miranda rights and voluntarily agreed to waive them before questioning. At the initial interview, defendant denied all involvement in the killing.

At 2:00 P.M., defendant was taken from the police station to the police crime laboratory for a polygraph examination. The defendant was again advised of his Miranda rights, and agreed to take the polygraph examination. During the examination, Caudill received a telephone call indicating that an attorney was at the police station requesting to see Bryce Young.¹⁰ The defendant was not notified of this and the examination continued. At 6:40 P.M., defendant confessed.

The defendant’s motion to suppress the statement was denied. After a two-day bench trial, defendant was convicted of second-degree murder, MCL 750.317; MSA 28.549, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to twelve to thirty years for the murder conviction and two years for the felony-firearm violation.

The Court of Appeals affirmed defendant’s conviction. 212 Mich App 630; 538 NW2d 456 (1995). We remanded the case for reconsideration in light of Bender, and for a determination whether that decision should be applied retroactively to this case. 453 Mich 976 (1996).

On remand, the Court of Appeals held that Bender was to be given complete retroactive effect because it could not be said that Bender overruled clear and uncontradicted case law or that it was unexpected or indefensible in light of People v Wright, supra. 222 Mich App 498; 565 NW2d 5 (1997).

n

The issue in this case is whether our decision in People v Bender, supra, should have retroactive application. As a question of law, the standard of review is de novo. People v Carpentier, 446 Mich 19; 521 NW2d 195 (1994). Resolution of the matter in turn rests on the decisional basis of the holding.

In Bender, we held that the police must inform a suspect when retained counsel is available for consultation, failing which any statement made by the defendant after the attorney’s arrival would be suppressed. However, the ultimate holding of the Court was not that the rule was required by either Const 1963, art 1, § 17¹¹ or § 20.¹² In an opinion by Chief Justice Brickley, joined by Justices Levin, Cavanagh, and Mat,t,ett, the majority expressly refrained from justifying Bender by interpreting constitutional provisions. Rather, the majority felt that it

would be more appropriate to approach the law enforcement practices that are at the core of this case in the same manner as the United States Supreme Court approached the constitutional interpretation task in Miranda . . . ; namely, by announcing a prophylactic rule. [Bender at 620-621.]1¹³1

This new per se rule of criminal procedure was implemented to insure that “our system of criminal justice remains accusatorial and not inquisitorial in nature.” Id. at 623.

m

In Griffith v Kentucky,14 the United States Supreme Court held that a new rule for the conduct of criminal prosecutions “applie[s] retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” However, Griffith is not applicable to the cases at bar because it applies only to rules of criminal procedure that are grounded on the United States Constitution.

In Griffith, the issue was whether the Court’s decision in Batson v Kentucky¹⁵ should be applied retroactively. In Batson, the Court held that a state criminal defendant could establish a prima facie case of racial discrimination violative of the Fourteenth Amendment on the basis of a prosecutor’s use of peremptory challenges to strike members of the defendant’s race from the jury. Once the defendant made the prima facie showing, the burden shifted to the state to establish a racially neutral explanation for the exclusions. Thus, Griffith dealt with the retroactive application on direct review¹⁶ of a rule of criminal procedure that was constitutionally mandated.¹⁷

The Court explicitly accepted Justice Harlan’s view of “distinguishing between cases that have become final and those that have not, and for applying new rules retroactively to cases in the latter category . . . .”¹⁸ The Court stated that “failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.”¹⁹

This Court’s holding in Bender is not a rule of criminal procedure that is mandated by the United States Constitution. To the contrary, the United States Supreme Court’s holding in Moran v Burbine, 475 US 412; 106 S Ct 1135; 89 L Ed 2d 410 (1986), specifically held that failure of the police to inform a defendant of a lawyer’s efforts to contact him does not violate either the Fifth Amendment right to silence or the Sixth Amendment right to counsel.

The conclusion that Griffith mandates retroactive application only with respect to rules that emanate from the federal constitution is in accord with the approach adopted in both federal and state courts.²⁰

In Commonwealth v Waters,21 the issue before the Massachusetts Supreme Court was whether a new rule announced in Commonwealth v Allen, 22 should be applied retroactively. In Allen, the court announced a rule requiring a judicial determination of voluntariness whenever the issue was raised, even if the statement in question was made to a private citizen. Declining to apply Allen to a case pending on direct review at the time the opinion was issued, the court in Waters held that “Griffith does not require this court to give retroactive application to rules that are not based on the Federal Constitution.”²³

In People v Erickson,²⁴ one of the issues before the Illinois Supreme Court was whether the decision in Daley v Hett,25 should have retroactive application. The defendant’s position was that Hett prohibited death penalty questioning of prospective jurors where the sentencing jury is waived before trial. The court held that the issue was left open in Hett. Declining to address the unanswered issue, the court found that even if Hett stood for the defendant’s proposition, it would not be applied retroactively to the defendant’s case. The court stated:

Our reading of Griffith leads us to conclude that retroactivity is triggered when two factors are present: (1) the case to which the new rule is to be applied was not final or was pending on direct review when the rule was declared and (2) the rule to be applied retroactively is of constitutional dimension.[²⁶]

The court reasoned that the right to a sentencing jury in a capital case was a statutory rather than a constitutional right, and stated that because “Griffith addresses a rule which pertains to a constitutional right and the defendant herein seeks retroactive application of a rule which pertains to a statutory right, we do not deem Griffith controlling.”²⁷ After finding Griffith inapplicable, the court applied a three-part test of retroactivity first adopted by the Illinois Supreme Court in People v Laws.28 The three-part test applied in Erickson²⁹ is substantively indistinguishable from the test of retroactivity we applied in People v Hampton.30

Because Griffith is not controlling, this Court is free to prescribe the parameters of retroactivity. The United States Supreme Court held in Great Northern R Co v Sunburst Oil & Refining Co31 that “the Federal Constitution has no voice upon the subject. A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward.”

While we acknowledge the reasoning and rationale of Griffith32 we decline to apply it to the cases before us today.³³ Instead, we find the analysis in Stovall v Denno,34 to be more persuasive.³⁵

In Stovall, the United States Supreme Court addressed the retroactivity of United States v Wade.36 Wade required the exclusion of an in-court identification that was based on a prior lineup conducted without counsel unless the in-court identification had an independent origin or was harmless error. The Stovall Court cited the “unusual force of the countervailing considerations” in holding that the Wade rule was to have total prospective application. The Court made no distinction between final, convictions, convictions on direct review, and convictions at various stages of trial, holding that the “factors of reliance and burden on administration of justice” were paramount.³⁷ In addressing the equity argument, the Court observed that “[i]nequity arguably results from according the benefit of a new rule to the parties in the case in which it is announced but not to other litigants similarly situated in the trial or appellate process who have raised the same issue. But we regard the fact that the parties involved are chance beneficiaries as an insignificant cost for adherence to sound principles of decision-making.”³⁸

In determining the scope of prospective application, Professors LaFave and Israel submit that reliance is a critical factor.

If non-retroactive application is to be geared to reliance, the critical point for application of the new ruling must be the operative event regulated by that ruling, rather than the finality of the conviction. Where the new ruling was directed at a police practice, it would be applied only to police action occurring after the date of the new ruling.!³⁹1

In holding that Bender is to be given prospective application only, we agree with the Stovall Court that no distinction should be made between final convictions, convictions on direct review, and convictions at various stages of trial.⁴⁰ We simply decline to extend Bender’s “court-made exclusionary rule to cases in which its deterrent purpose would not be served.”⁴¹

rv

In Hampton, supra, we recognized a three-part test of retroactivity that assesses (1) the purpose of the new rules;⁴² (2) the general reliance on the old rule, and (3) the effect of retroactive application of the new rule on the administration of justice.⁴³ We hold that the application of these three factors to the rule in Bender precludes retroactive application.

A

As noted above, the purpose of the Bender rule is to provide “prophylactic” protection against potential Miranda violations by mandating suppression as a deterrence to police misconduct.⁴⁴ The Bender majority held that “ [i]f it is deemed to be important that the accused be informed that he is entitled to counsel, it is certainly important that he be informed that he has counsel.”⁴⁵ Miranda warnings are not constitutionally mandated. Rather, the United States Supreme Court in Miranda created a prophylactic set of warnings to ensure protection of Fifth Amendment rights.⁴⁶ The Supreme Court has further held that Miranda is to have prospective application only.⁴⁷

Furthermore, the Bender rule is not relevant to the ascertainment of guilt or innocence and does not implicate the integrity of the fact-finding process. In People v Young,48 the Court considered whether the Court of Appeals had correctly applied People v Fountain49 which required that a prosecutor who knows of a defendant’s prior felony record proceed against the defendant as an habitual offender in the adjudication of the current felony offense, failure of which reverses the defendant’s conviction as an habitual offender. The Court observed that the rule was based on “this Court’s supervisory powers over the practices and procedures used in our courts”⁵⁰ and concluded:

When a decision of this Court involves a rule which concerns the ascertainment of guilt or innocence, retroactive application may be appropriate. People v Hampton, supra. Conversely, a new rule of procedure adopted by this Court which does not affect the integrity of the fact-finding process should be given prospective effect.]⁵¹]

Because the doctrinal foundation for the Bender rule is prophylactic and aimed at preventing police misconduct that does not affect the truth-finding process, it is amenable to prospective application. Because the police acted in full compliance with the law as it existed at the time, the purpose of preventing police misconduct will in no way be served by retroactive application. The rule, by its nature, can only have a prospective effect on police conduct.

B

Because the amount of past reliance will often have a profound effect on the administration of justice, the second and third factors are often dealt with together.⁵²

When a decision overrules settled law, more reliance is likely to have been placed in the old rule than in cases in which the law was unsettled or unknown.⁵³ Judicial decisions are generally given complete retroactive effect unless the decisions are unexpected or indefensible.⁵⁴

The defendants in this case argue that Bender was foreshadowed by People v Wright, supra. Because of the holding in Wright, the defendants argue, the decision in Bender cannot be deemed to be unexpected. In Wright, four members of the Court held that the defendant’s confession could not be admitted into evidence. Justice Mallett, joined by Justice Levin, held that the Michigan Constitution, art 1, § 17, required the police to inform the defendant of in-person efforts by his retained attorney to contact him.⁵⁵ Chief Justice Cavanagh agreed with Justice Mallett’s inteipretation of the Michigan Constitution, but wrote separately to further cite defendant’s right to assistance of counsel under Const 1963, art 1, § 20.⁵⁶ Chief Justice Cavanagh also held that the rale should not be limited to apply only to in-person efforts to contact.⁵⁷ Justice Brickley concurred that the confession should be suppressed. However, Justice Brickley wrote separately to base his conclusion on a rationale distinct from that of Justices Mallett, Levin, and Cavanagh.⁵⁸ Justice Brickley did not reference any provision of our constitution, but relied on a totality-of-the-circumstances analysis to find that the coercive nature of the defendant’s interrogation precluded a voluntary waiver of the right to remain silent.⁵⁹

Given that the majority in Wright did not agree that failure to allow retained counsel access to the client-mandated exclusion of the statements as a matter per se it cannot be said that Wright foreshadowed Bender. In announcing a rule of exclusion per se, Bender is a complete break with past precedent. As this Court held in People v Anderson:⁶⁰

The clear rale in Michigan is that a majority of the Court must agree on a ground for decision in order to make that binding precedent for future cases. If there is merely a majority for a particular result, then the parties to the case are bound by the judgment but the case is not authority beyond the immediate parties.

Therefore, even after Wright, there was no established rule that mandated the exclusion of evidence when the police failed to apprise a defendant of retained counsel’s attempts at contact. Bender could not have been foreshadowed by Wright where the case established no precedential value under the principle of stare decisis.

While the police could not rely on Wright, they could rely on the United States Supreme Court’s decision in Moran v Burbine, supra. As noted in Moran, the Court held that a defendant’s knowledge of his attorney’s presence is irrelevant to the voluntariness of a waiver. Under Moran, the proper focus is on the voluntariness of the defendant’s decision to speak with the full awareness and comprehension of all the information Miranda requires the police to convey.

Whether a statement is deemed voluntary is to be determined using a totality-of-the-circumstances analysis. As this Court said in People v Cipriano:⁶¹

In determining whether a statement is voluntary, the trial court should consider, among other things, the following factors: the age of the accused; his lack of education or his intelligence level; the extent of his previous experience with the police; the repeated and prolonged nature of the questioning; the length of the detention of the accused before he gave the statement in question; the lack of any advice to the accused of his constitutional rights; whether there was an unnecessary delay in bringing him before a magistrate before he gave the confession; whether the accused was injured, intoxicated or drugged, or in ill health when he gave the statement; whether the accused was deprived of food, sleep, or medical attention; whether the accused was physically abused; and whether the suspect was threatened with abuse.

In view of the earlier reliance on Moran and Cipriano and the lack of foreshadowing by Wright, before Bender the police could legitimately rely on the fact that an inculpatory statement would not be automatically excluded when they failed to inform a suspect of the presence of counsel hired by a third party. This legitimate reliance was reinforced through subsequent decisions of the Court of Appeals, which held that Wright did not establish a binding principle regarding rationale.⁶² Furthermore, subsequent Court of Appeals decisions expressly refused to impose a requirement per se that the police inform a suspect of counsel’s presence. These opinions correctly employed a traditional totaiity-of-the-circumstances analysis in determining whether the defendant’s statements were voluntary.⁶³

In Bender, the Court announced for the first time that police must inform a suspect of an attorney’s attempted contact, failing which the suspect’s Miranda waiver is invalid per se and the resulting statement suppressed. Because Bender is a new rule of law, it is uniquely susceptible to prospective application.

As to the third factor, we find that retroactive application of Bender would be extremely disruptive to the administration of justice. Convictions would be called into question and evidence excluded that was obtained in full compliance with the law extant at the time the statement was given. The ultimate result might undermine the validity of a large number of convictions and burden the criminal justice system with numerous retrials. Accordingly, we hold that the decision in Bender is to be given prospective application only.

v

Defendants Sexton and Young also claim that their inculpatory statements should have been suppressed because they were not voluntary. As noted above, whether a statement is deemed voluntary is to be determined using a totality-of-the-circumstances analysis.⁶⁴ While the voluntariness of a confession is a question for the trial court, an appellate court must examine the entire record and make an independent determination of voluntariness.⁶⁵ The decision of the trial court will not be disturbed unless clearly erroneous.⁶⁶

As to defendant Young, review of the record shows that the trial court did not err in finding Bryce Young’s statement voluntary under the circumstances. Defendant maintains that his statement was involuntary because he was not informed that counsel was attempting to contact him and because he was deprived of food and sleep for twenty-one hours. As noted above, defendant’s not being informed of the presence of counsel is merely a factor in the determination of voluntariness.

Defendant was arrested at 9:00 P.M. on September 9. He was given a soft drink and a snack cake at approximately noon on September 10, which was the first and only occasion defendant complained about being hungry. According to defendant’s testimony at the evidentiary hearing, he specifically requested a soft drink. He further testified that he spoke with his lawyer for approximately an hour and then ate a hot meal. Any delay in eating due to speaking with counsel is certainly not attributable to the police.

Furthermore, defendant’s testimony at the evidentiary hearing reveals that his lack of sleep was principally attributable to his “being scared” rather than any coercive tactics on the part of the police.

Under the totality of the circumstances, we hold that defendant Young’s statement was voluntary.

As to defendant Sexton, the matter was not addressed by the appellate court. Therefore, we remand the issue to the Court of Appeals for further proceedings.

VI

In all three cases before us, the inculpatory statements of the defendants were ordered suppressed pursuant to Bender. Because we hold that the decision in Bender is to apply only to interrogations that occurred after July 23, 1996, the inculpatory statements of the defendants should not be suppressed. Accordingly, we reverse the decisions of the Court of Appeals and remand the cases for proceedings consistent with this opinion.

Mallett, C.J., and Weaver and Taylor, JJ., concurred with Boyle, J.

1 These three cases do not furnish an opportunity for this Court to revisit the holding of Bender. The issue before us today is simply whether the Bender decision should have retroactive application.

2 The police questioned the defendant and two other men while sitting in a patrol car. According to the testimony of Officer Keith Lehr, the questioning was done in the police car to facilitate note taMng. Lehr never told the defendant that he was under arrest.

3 Before being questioned, the defendant was given an atomic absorption test.

4 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

5 Detective Marchlones first became aware of Miller’s presence at 10:30 P.M.

6 Judge Andrews held on the basis of Justice Beickley’s concurrence in People v Wright, 441 Mich 140; 490 NW2d 351 (1992), that the failure of the police to tell the defendant about a retained attorney was just one among many factors to consider using a totality-of-the-cireumstances analysis.

7 The Court of Appeals held that statements taken after Mr. Miller’s telephone call must be suppressed. The issue of whether telephone contact is sufficient to invoke the protection of Bender is not before us. However, we note without comment that only Justices Cavanagh, Levin, and Mallett wrote to extend the per se rule to alternative forms of police contact. Id. at 617.

8 The victim was shot and killed in the defendant’s basement after a disagreement about a haircut. Also present was defendant’s younger brother, Edward Davis. Defendant telephoned his mother before the police arrived. She promised to retain an attorney to represent both her sons.

9 The testimony was as follows:

Q. [Mr. Googasian]: What happened, what did you see?

A. [Mr. Smith]: A person came out the alley with a ski mask and a gun.

Q. All right, what happened?

A. He walked past my friend Lamont and I didn’t think nothing of it and then he just started shooting and I ran.

10 The record of the evidentiary hearing does not indicate whether counsel was retained or appointed.

11 Const 1963, art 1, § 17 states:

[N]o person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law. The right of all individuals, firms, corporations and voluntary associations to fair and just treatment in the course of legislative and executive investigations and hearings shall not be infringed.

12 Const 1963, art 1, § 20 provides:

[I]n every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury, which may consist of less than 12 jurors in prosecutions for misdemeanors punishable by imprisonment for not more than 1 year; to be informed of the nature of the accusation; to be confronted with the witnesses against him or her; to have compulsory process for obtaining witnesses in his or her favor; to have the assistance of counsel for his or her defense; to have an appeal as a matter of right, except as provided by law on appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court; and as provided by law, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.

13 The dissent maintains that we ignore the “constitutional import” of Bender in describing it as a prophylactic rule. Post at 70. “Underpinnings” notwithstanding, the Bender majority expressly and unequivocally described the new rule as being prophylactic in nature, declining to find that the Michigan Constitution required it.

14 479 US 314, 328; 107 S Ct 708; 93 L Ed 2d 649 (1987).

15 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986).

16 In Allen v Hardy, 478 US 255, 258; 106 S Ct 2878; 92 L Ed 2d 199 (1986), the Court held that the ruling in Batson was not to be applied retroactively “on collateral review of convictions that became final before [Batson].’’

17 The conclusion that Griffith applies to rules of constitutional magnitude is further demonstrated by the Court’s indication that it was reviewing the “three-pronged analysis for claims of retroactivity of new constitutional rules of criminal procedure” adopted in Linkletter v Walker, 381 US 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965). Griffith at 320.

18 Id. at 322.

19 Id.

20 In Diggs v Owens, 833 F2d 439, 442 (CA 3, 1987), the court considered the application of Griffith to United States v Mauro, 436 US 340; 98 S Ct 1834; 56 L Ed 2d 329 (1978). The court held that “Griffith should be confined to constitutional rules of criminal procedure and thus does not require retroactive application of new procedural decisions not constitutionally grounded.”

In Mason v Duckworth, 74 F3d 815, 818-819 (CA 7, 1996), the court considered the application of Griffith to a newly adopted evidentiary rule for admitting prior inconsistent statements of witnesses in the state courts of Indiana. The court agreed with the Indiana district court that “Griffith only applies to new rules of federal constitutional magnitude.” The court held that Indiana’s “change in the rules of evidence is simply not one of constitutional proportions, and for that reason Griffith does not apply.”

In State v Abronski, 145 NJ 265; 678 A2d 659 (1996), the New Jersey Supreme Court declined to retroactively apply State v Reed, 133 NJ 237; 627 A2d 630 (1993), which, like Bender, requires that the police inform a defendant of the presence of counsel. The court utilized a three-part test similar to Hampton in holding that Reed would apply prospectively to custodial confessions that occurred on or after the date of the decision.

21 400 Mass 1006; 511 NE2d 356 (1987).

22 395 Mass 448; 480 NE2d 630 (1985).

23 Waters at 1007.

24 117 Ill 2d 271; 513 NE2d 367 (1987).

25 113 Ill 2d 75; 495 NE2d 513 (1986).

26 Erickson at 289.

²⁷

28 84 Ill 2d 493; 419 NE2d 1150 (1981).

29 The three-part test utilized in Erickson, supra at 290, considers the foHowing factors in detemüning the applicabUity of retroactivity:

(1) the purpose of the new rule, particularly whether or not it enhances the truth-seeking process; (2) the extent to which law-enforcement officials relied upon a prior rule of law supplanted by the new rule; and (3) the effect on the administration of justice of the retroactive application of the newly announced rule.

30 384 Mich 669; 187 NW2d 404 (1971).

31 287 US 358, 364; 53 S Ct 145; 77 L Ed 360 (1932).

32 As a doctrine that functions to encourage serious consideration of the social costs of expansionist constitutional interpretation, the Griffith rationale has much to commend it. It surely is not an “absurdity” (post at 83, n 9) for a court, in interpreting its own organic instrument of government, to attempt to balance newly recognized rights against the burdens imposed on the administration of justice. See LaFave & Israel, Criminal Procedure, § 2.7 et seq.

33 Defense counsel further urges the Court to extend retroactivity to Bender as the United States Supreme Court extended the rule in Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981), to be retroactive to cases pending on direct appeal. Shea v Louisiana, 470 US 51; 105 S Ct 1065; 84 L Ed 2d 38 (1985). However, we believe that utilizing the analysis in Stovall v Denno, 388 US 293; 87 S Ct 1967; 18 L Ed 2d 1199 (1967), is more consistent with the purposes underlying Bender.

Furthermore, the basis of the Edwards rule is not constitutional; rather, its underpinnings refer to another prophylactic rule. In Connecticut v Barrett, 479 US 523, 528; 107 S Ct 828; 93 L Ed 2d 920 (1987), the Court stated that the Edwards rule “is not itself required by the Fifth Amendment’s prohibition on coerced confessions, but is instead justified only by [Miranda’s] prophylactic purpose.”

34 388 US 293; 87 S Ct 1967; 18 L Ed 2d 1199 (1967).

35 See also Desist v United States, 394 US 244, 254, n 24; 89 S Ct 1030; 22 L Ed 2d 248 (1969). In Desist, the United States Supreme Court held that the decision in Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967), was to be applied prospectively to electronic eavesdropping that occurred after the date of the Katz decision.

36 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).

37 Stovall at 299.

38 Id. at 300.

39 LaFave & Israel, n 32 supra, § 2.9(c), p 125. LaFave and Israel farther maintain that “where the new ruling related to a trial or other judicial proceeding, it would be applied only to cases in which that proceeding was held after the date of the new ruling.” Id.

40 In holding the Bender decision to be fully prospective, we acknowledge that our retroactivity analysis draws “no less an arbitrary line than does the federal system.” United States v Peters, 978 F Supp 762, 777, n 18 (ND Ill, 1997).

41 Desist, n 35 supra at 254, n 24.

42 According to the dissent, the rule of Bender is not new because police “ha[d] reason to be aware” that failing to inform an accused of the presence of counsel was “impermissible.” Post at 81. First, there is more than a hint of irony in this observation since it is the fact that the author of the dissent did not agree with the rationale of the remaining majority that forecloses the claim that Wright foreshadowed Bender. Second, the suggestion that violating “any factor utilized in the totality-of-the-circumstances test” is inherently illegal is inherently illogical. Post at 85. The essence of the totality-of-the-circumstances approach is the antithesis of an approach identifying any specific factor as illegal. If one factor were unlawful per se there would be no need for a holistic approach.

Finally, under People v Phillips, 416 Mich 63, 68; 330 NW2d 366 (1982), a rule is new where clear precedent is overruled or when an issue of first impression whose resolution was not clearly foreshadowed is decided. In Bender, the Court announced for the first time that police must inform a suspect of an attorney’s attempted contact, fading which the suspect’s Miranda waiver is invalid per se and the resulting statement suppressed.

In Teague v Lane, 489 US 288, 301; 109 S Ct 1060; 103 L Ed 2d 334 (1989), the issue before the Court was the retroactivity of new rules to cases on collateral review. In discussing when a rule is new, the Court stated:

It is admittedly often difficult to determine when a case announces a new rule, and we do not attempt to define the spectrum of what may or may not constitute a new rule for retroactivity purposes. In general, however, a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government .... To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final. [Emphasis in original.]

43 Hampton, supra at 674, citing Linkletter, n 17 supra.

The Linkletter analysis, although later abandoned by the United States Supreme Court in favor of Griffith, was initially embraced by two distinct constituencies of the Court. One viewed Linkletter as a means of mitigating the effect of the Warren Court’s “fast-moving pace of constitutional innovation in the criminal field.” Mackey v United States, 401 US 667, 676; 91 S Ct 1160; 28 L Ed 2d 404 (1971) (Harlan, J., concurring in part and dissenting in part). The doctrine was viewed “as a way of limiting the reach of decisions that seemed . . . fundamentally unsound." Id. (emphasis added).

The other view rationalized prospectivity “as a ‘technique’ that provided an ‘impetus ... for the implementation of long overdue reforms, which otherwise could not be practicably effected.’ ” Id. Commentators suggested that the doctrine of nonretroactivity “ ‘liberated the Court to remold the criminal process still more freely,’ ” knowing that expansive criminal procedure jurisprudence would not result in the massive liberation of criminal defendants from jail. LaFave & Israel, n 32 supra, § 2.9, p 120.

See also Fallon & Meltzer, New law, non-retroactivity, and constitutional remedies, 104 Harv L R 1731, 1738-1740 (1991) (discussing retroactivity under the Warren Court).

44 In declaring that Bender was prophylactic in nature, we assume that the Bender majority employed the term “prophylactic” as it is used in Miranda, that is, ‘procedural safeguards” that are not themselves constitutionally based. Michigan v Tucker, 417 US 433, 444; 94 S Ct 2357; 41 L Ed 2d 182 (1974). See also Grano, Confessions, Truth, and the Law (Ann Arbor: The University Press, 1996), p 175.

45 Id. at 621.

46 Michigan v Tucker, n 44 supra at 444. In Johnson, the Court used the Linkletter test in holding that Miranda was to apply to trials commencing after the date of the Miranda decision on June 13, 1966.

47 Johnson v New Jersey, 384 US 719; 86 S Ct 1772; 16 L Ed 2d 882 (1966).

48 410 Mich 363; 301 NW2d 803 (1981).

49 407 Mich 96; 282 NW2d 168 (1979).

50 Young at 367.

⁵¹

52 Hampton, supra at 677.

53 People v Markham, 397 Mich 530; 245 NW2d 41 (1976).

54 People v Doyle, 451 Mich 93, 104; 545 NW2d 627 (1996).

55 Id. at 155.

56 Id. at 156.

57 Id. at 162.

58 Id. at 164. Justice Brickley focused on the defendant’s due process claim and found that the defendant’s confession was involuntary because of the coercive nature of his interrogation.

59 Id. at 172.

60 389 Mich 155, 170; 205 NW2d 461 (1973).

61 431 Mich 315, 334; 429 NW2d 781 (1988).

62 See People v Justice, 216 Mich App 633; 550 NW2d 562 (1996); People v Armstrong, 207 Mich App 211; 523 NW2d 878 (1994); People v Brown, 206 Mich App 535; 522 NW2d 888 (1994), remanded to the Court of Appeals 454 Mich 886 (1997).

63 See People v Armstrong and People v Brown, n 62 supra; People v Young, 212 Mich App 630; 538 NW2d 456 (1995). Young recognized that Armstrong “inarguably constituted binding precedent pursuant to Administrative Order No. 1994-4.” Id. at 638.

64 People v Cipriano, supra at 334.

65 People v Robinson, 386 Mich 551, 558; 194 NW2d 709 (1972).

66 People v Cipriano, supra at 338.