People v. Dunn
| Decision Date | 26 August 1994 |
| Docket Number | D,No. 3,Docket No. 93832,3 |
| Citation | 521 N.W.2d 255,446 Mich. 409 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alex Ferman DUNN, Defendant-Appellant. Calendarec. Term 1993. |
| Court | Michigan Supreme Court |
J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Brian L. Mackie, Pros. Atty., and Marilyn A. Eisenbraun and David A. King, Asst. Pros. Attys., Ann Arbor, for people.
State Appellate Defender by Ronald E. Steinberg, Detroit, for defendant.
Alex Ferman Dunn was convicted of possession with intent to deliver 225 to 650 grams of cocaine. 1 The Court of Appeals affirmed. 2
We granted leave to appeal to consider:
the admission at trial of Dunn's statements to police in connection with an attempt to negotiate a plea bargain was harmless error, and
. whether his appearance in the courtroom in leg irons deprived him of a fair trial. 3
We reverse because we find that the admission of Dunn's statements was error, and that the error was not harmless.
While Dunn's legs were shackled, the record does not show that any member of the jury saw or could see the leg irons, 4 and, therefore, the record does not provide a basis for a finding that the use of leg irons deprived Dunn of a fair trial.
A court may order shackling of a defendant only on a finding supported by record evidence that shackling is necessary to prevent escape, injury to persons in the courtroom, or to maintain order. 5 Dunn shall not be shackled on retrial, absent such a finding so supported.
The principal factual issue was whether it was Dunn who possessed the cocaine, or it was Lori Stegall or Michael Cranston, or possibly some other person, who possessed the cocaine.
The people's evidence tended to show that Dunn appeared, at about midnight, in August 1988 at door of Stegall's apartment and was admitted. Also present was her boyfriend, Cranston. Stegall expressed a desire to use cocaine. She said that Dunn offered to obtain cocaine, and returned about half an hour later carrying a garbage bag containing a large amount of cocaine. Stegall and Cranston claimed that the large quantity frightened Stegall.
A relatively small quantity, less than fifty grams, 6 was transferred from the larger quantity by Cranston, Stegall, or Dunn into a small baggie that Stegall testified she gave to Cranston. Stegall gave Dunn a brown paper bag in which to store the larger quantity of cocaine, and supplied him with a syringe, a belt, and a spoon to administer the drug.
With Dunn's assistance, Stegall injected herself with liquified cocaine. Dunn injected himself, and experienced a violent drug reaction. His eyes were bulging, he was shaking, freezing, jumping, swinging at things that were not there, and running around the house. 7
Cranston and Stegall claimed that they left the apartment with her children and telephoned the police from a neighbor's home. 8
When the police arrived, they were given permission to search Stegall's apartment. They seized the small baggie containing cocaine, but did not observe the larger bag of cocaine that was left, so or Cranston testified, in the middle of the bedroom floor. Stegall alerted the police to the bag of cocaine, whereupon they seized the bag. Fingerprints and a partial palm print on the large bag and the baggie could not be identified as belonging to Dunn, Stegall, or Cranston.
Dunn was arrested outside the apartment. A police officer testified that he was shaking, sweating, and barely able to stand. En route to the police station, Dunn said "the stuff was mine, that they didn't have anything to do with it." Dunn identified "they" as Stegall and Cranston. Dunn added that "he didn't want to get them in trouble, that they had nothing to do with it." 9 Another officer testified that he stayed with Dunn for a number of hours in the emergency room, and that Dunn spontaneously asked "where is my cocaine[?]" 10 Dunn did not, however, specify whether the "stuff" or "my cocaine" was the cocaine in the baggie or the cocaine in the larger bag or both.
Dunn initiated communication with the police several days after his arrest in an effort to work out a plea bargain. The police indicated that they could not talk to the prosecutor about a plea bargain until they knew "what information he had."
Dunn said that he had been hired by a drug dealer in Florida to bring cocaine into this country from South America, that he obtained the drugs, that the drug dealer was still waiting for him to deliver the cocaine, and that he was willing to police set up a delivery in exchange for a plea bargain that would permit him to plead guilty of possession of under fifty grams of cocaine.
Dunn was allowed to telephone the dealer in Florida, with police recording the telephone call. The police then believed that there might be some substance to what Dunn was saying, 11 and told him they would communicate with the prosecutor. Dunn was unable to arrange a meeting with the Florida dealer, 12 the negotiations for a plea bargain ended, and he was prosecuted for possession with intent to deliver 225 to 650 grams of cocaine.
Following a pretrial hearing, the circuit court ruled that Dunn's statements could be admitted in evidence. The police officers testified regarding the statements during the trial. The prosecutor emphasized Dunn's inculpatory statements during his closing argument. 13
The Court of Appeals held that Dunn's statements were made in connection with an offer to plead guilty, and that their admission into evidence was violative of MRE 410. 14
The Court of Appeals relied on its decision in People v. Oliver, 111 Mich.App. 734, 314 N.W.2d 740 (1981), which in turn relied on United States v. Robertson, 582 F.2d 1356, 1366 (C.A.5 1978), in which the United States Court of Appeals for the Fifth Circuit, construed FRE 410, on which MRE 410 is based, and said:
The trial court must apply a two-tiered analysis and determine, first, whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and, second, whether the accused's expectation was reasonable given the totality of the objective circumstances.
We conclude, in agreement with the Court of Appeals, 15 that Dunn had a subjective expectation to negotiate a plea at the time of the discussion, and that his expectation was reasonable given the totality of the objective circumstances. Shortly after his arrest, Dunn initiated communication with the detectives for the express purpose of negotiating a plea bargain with the prosecutor. The detectives encouraged him to talk so they could discuss the possibility of a plea with the prosecutor. With the information supplied by Dunn, the detectives went to the prosecutor and obtained a warrant for the second phone call.
B
Effective October 1, 1991, the rule was amended to provide that evidence of a statement made during plea discussions is not admissible against a defendant who was a participant in the plea discussions if the statement was "made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn." 16 (Emphasis added.)
Dunn was convicted in 1989 before the amendment of MRE 410. The question whether the should be retroactive has not been briefed or argued. We intimate no opinion respecting the admissibility at the retrial of the detectives' testimony concerning Dunn's statements during the plea discussions.
We turn to consideration of whether the error in admitting in evidence the testimony of the detectives concerning statements made by Dunn in connection with his offer to plead guilty of a lesser offense was harmless. We conclude, on de novo review of the whole record, that the error in admitting in evidence the testimony of the detectives concerning statements made by Dunn in connection with his offer to plead guilty to a lesser offense was not harmless.
Dunn did not testify. Nothing contradicts the testimony of one of the officers that Dunn spontaneously asked, while in the emergency room, "where is my cocaine[?]" or of another officer who testified that, en route to the police station, Dunn said, in effect, that Stegall and Cranston "didn't have anything to do with [the stuff "] that the "stuff" was his, and that he "didn't want to get them in trouble [because] they had nothing to do with it." (Emphasis supplied.) 17
The testimony erroneously admitted, that Dunn stated that he obtained the cocaine "from a location in Equador [sic] which is located in South America," and that he flew into Miami from out of the country back into the United States, was supposed to deliver the cocaine to someone else, but did not, portrayed Dunn as part of the South American drug trade, rather than simply as a person who might have known where in the Ypsilanti area to obtain drugs on short notice in the middle of the night. The inadmissible testimony concerning Dunn's admissions during plea bargaining thus cannot be characterized as merely cumulative of the testimony concerning his admissions at the hospital and en route to the police station.
Dunn's lawyer theorized and argued that Dunn went to the apartment to purchase the little baggie of cocaine found by the police, and that that was the cocaine to which he was referring when he said, "where's my cocaine[?]" 18
Dunn's statements referring to "stuff" and "it" not specify a particular quantity of cocaine. But for the erroneous admission of Dunn's confession that he had imported the cocaine from Ecuador, the jurors could have reasonably concluded, giving Dunn the benefit of a reasonable doubt--as they were required to do--that Dunn's statements in the hospital and en route to the police station, might have referred to the cocaine in the baggie rather than the larger quantity.
While Stegall and Cranston's testimony identifying...
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