also a 3-to-3 split; Justice CAVANAGH concurring on the facts of that case that the statement was inadmissible for any purpose but not indicating whether this conclusion was based on Michigan or federal constitutional law
How later courts described this case
- also a 3-to-3 split; Justice CAVANAGH concurring on the facts of that case that the statement was inadmissible for any purpose but not indicating whether this conclusion was based on Michigan or federal constitutional law
- the justices reached a similar three-three split, with Justice Cavanagh finding that the statement was inadmissible for any purpose under the facts of that case alone
- relying solely on Michigan constitution
Written by the judges who cited it.
The opinion
Cavanagh, J.
(concurring). In ruling that the statement in question was voluntary and admissible for impeachment purposes, the trial court clearly proceeded on the premise that defendant’s Sixth Amendment right to counsel had not terminated at his sentencing. That court stated:
*482 "Counsel for defendant at his first trial now testifies that he recalls talking to the subject police officers on two to five occasions unequivocally, states that he, at no time, advised the police officers that it was permissible for his client to discuss the offense with them; and the Court so finds.
"By the above finding, the Court does not dismiss a situation where the police officers were under a mistaken impression that such permission had been given. The Court does find that a brief conversation did occur as between the police officers and defense counsel shortly after the sentencing of Defendant but further concludes that a conversation under those circumstances, irrespective of its content, cannot constitute a waiver by counsel of Defendant’s constitutional right.
"The factual issue of permission of counsel in this Court’s analysis is moot and not controlling. For even assuming the statement was made by the officers, without permission, the remaining factual circumstances still cause this Court to conclude that Defendant’s statements, without regard to their truth or falsity, were voluntarily rendered.”
The Court of Appeals in this case found "a defendant’s Sixth Amendment right to counsel is applicable to post-trial statements when appeal is not final.” People v Gonyea, 126 Mich App 177, 183 ; 337 NW2d 325 (1983). Before this Court, the people have not disagreed that this defendant’s Sixth Amendment right to counsel is implicated.
Thus, this case comes to us with the predicate that this defendant’s Sixth Amendment right to counsel was violated, indeed, deliberately so. The trial court expressly found that defense counsel did not give permission for the officers to speak to defendant, that defendant asked the officers about his counsel’s position regarding the questioning, and that the officers told defendant his counsel had given permission for defendant to speak to them. Under these facts, I concur with my brother *483 Williams’ conclusion that the statement in question is inadmissible for any purpose.