People v. Frazier

• Decision Date: 27 February 1998
• Docket Number: 95-052613
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. Corey Ramone FRAZIER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. Corey Ramone FRAZIER, Defendant-Appellant.

No. 95-052613-FC.

Court of Appeals of Michigan.

Feb. 27, 1998.

Before CORRIGAN, C.J., KELLY and HOEKSTRA, JJ.

CORRIGAN, C.J.

Defendant appeals by right his convictions by jury of two counts of first-degree felony murder, M.C.L. § 750.316; MSA 28.548, two counts of possession of a firearm during the commission of a felony, M.C.L. § 750.227b; MSA 28.424(2), and armed robbery, M.C.L. § 750.529; MSA 28.797. The court sentenced defendant to two mandatory terms of life imprisonment without parole for murder, two mandatory two-year terms for his felony-firearm convictions, and life imprisonment for armed robbery. This case presents an issue of first impression regarding whether a suspect has a constitutional right to the effective assistance of counsel during a post arrest, pre-arraignment custodial interrogation. We hold that a suspect does not, and affirm defendant's murder and felony-firearm convictions, but vacate his armed robbery conviction.

This case arises from the slayings of James Goff and Aaron McColgan in McColgan's home in Grand Blanc Township. Both men died of gunshot wounds to the head. Kenneth Haywood implicated defendant in the crime, stating that he drove defendant and codefendant Idell Cleveland ¹ to McColgan's home. He heard gunshots after one of the victims allowed defendant and codefendant to enter the house. Three days after the crime, Sergeant Dan Collardey presented a complaint, authorized by the prosecutor, to the magistrate, seeking a warrant for defendant's arrest. The court issued the warrant. Defendant and his retained counsel arrived at the police station two days later so defendant could surrender to the police. Police officers then arrested defendant.

On the advice of counsel, defendant made a statement to the police two days after his arrest describing his involvement in the crime. Defense counsel encouraged defendant to make the statement even though the police and prosecutor had told him that they would not enter into a plea agreement. Defendant subsequently made two more statements, one after he took a polygraph examination. Defendant was arraigned the day after he completed the polygraph examination, four days after his arrest.

I

Defendant first argues that he was denied the effective assistance of counsel because defense counsel advised him to waive his Miranda ² rights and to make incriminating statements to police in the hope of receiving a favorable plea bargain, even though the prosecutor never offered a plea agreement. We reject defendant's claim. Defendant did not have the right to effective assistance of counsel during the police questioning.

Both the Sixth Amendment and Const 1963, art 1, § 20, guarantee a defendant the right to counsel. Generally, our courts construe the two provisions identically. People v. Winters, 225 Mich.App 718, 723-724; --- NW2d ---- (1997); People v. Richert (After Remand), 216 Mich.App 186, 194; 548 NW2d 924 (1996). The Sixth Amendment right to counsel comprehends the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-686; 104 S Ct 2052; 80 L.Ed.2d 674 (1984). However, the right to counsel arises only at "the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Moore v. Illinois, 434 U.S. 220, 226-227; 98 S Ct 458; 54 L.Ed.2d 424 (1977) (quoting Kirby v. Illinois, 406 U.S. 682, 689; 92 S Ct 1877; 32 L.Ed.2d 411 (1972) (plurality opinion)). The Sixth Amendment does not confer a right to counsel before the initiation of adversary judicial criminal proceedings, even when the events may have important consequences at trial. Davis v. United States, 512 U.S. 452, 456;114 S Ct 2350; 129 L.Ed.2d 362 (1994); Moran v. Burbine, 475 U.S. 412, 432; 106 S Ct 1135; 89 L.Ed.2d 410 (1986). Following the initiation of the adversarial process, a defendant is entitled to the presence of counsel at "critical" proceedings, including interrogations. United States v. Gouveia, 467 U.S. 180, 189; 104 S Ct 2292; 81 L Ed 146 (1984); Brewer v. Williams, 430 U.S. 387, 401; 97 S Ct 1232; 51 L.Ed.2d 424 (1977).

This case presents an issue of first impression in Michigan regarding whether the Sixth Amendment right to counsel attaches when the police arrest a suspect on a warrant. The question of when adversary judicial criminal proceedings are initiated turns on the law of the jurisdiction in which the defendant is prosecuted. See Moore, supra at 228. In People v. Bladel (After Remand), 421 Mich. 39, 52; 365 NW2d 56 (1984), our Supreme Court determined that the defendant had a Sixth Amendment right to counsel at post arraignment interrogations. In affirming our Supreme Court's decision, the United States Supreme Court dismissed as "untenable" the state's argument that the arraignment did not represent the initiation of adversary judicial proceedings. Michigan v. Jackson, 475 U.S. 625, 629 n3; 106 S Ct 1404; 89 L.Ed.2d 631 (1986). The Court explained:

The Sixth Amendment guarantee of the assistance of counsel also provides the right to counsel at post arraignment interrogations. The arraignment signals the "initiation of adversary judicial proceedings" and thus the attachment of the Sixth Amendment ...; thereafter, government efforts to elicit information from the accused, including interrogation, represent "critical stages" at which the Sixth Amendment applies. [Id. at 629-630 (citations omitted).]

While our Supreme Court has plainly identified arraignment as the initiation point of adversary judicial proceedings, see People v. Anderson (After Remand), 446 Mich. 392, 403; 521 NW2d 538 (1994), Michigan courts have not previously decided whether adversary judicial proceedings actually begin before arraignment. ³ The question is now squarely before this Court

The majority of courts considering this question have held that an arrest on a warrant does not constitute the initiation of adversary judicial proceedings. Federal courts have uniformly held, in construing the Federal Rules of Criminal Procedure, that the Sixth Amendment right to counsel does not attach upon law enforcement's filing of a complaint, the court's issuing of an arrest warrant, or an arrest. E.g. United States v. Langley, 848 F.2d 152, 153 (CA 11, 1988); United States v. Pace, 833 F.2d 1307, 1312 (CA 9, 1987); United States v. Duvall, 537 F.2d 15, 22 (CA 2, 1976). Several state courts have reached the same conclusion. State v. Falcon, 196 Conn 557, 562; 494 A.2d 1190 (1985); Commonwealth v. Smallwood, 379 Mass 878, 884-885; 401 N.E.2d 802 (1980); Morris v. State, 532 S.W.2d 455, 456-458 (Mo, 1976). For example, the Supreme Court of Connecticut adopted a bright line rule, concluding that an arrest simply does not "call into play" the Sixth Amendment right to counsel. Falcon, supra at 562. Other courts have focused on the level of prosecutor involvement in the decision to arrest, and have held that an arrest, whether with or without a warrant, does not signal the initiation of adversarial proceedings when there is minimal or no prosecutor involvement. People v. Hayes, 139 Ill 2d 89, 125-126; 564 N.E.2d 803 (1990); State v. Masaniai, 628 P.2d 1018, 1023 (Hawaii, 1981); Lomax v. Alabama, 629 F.2d 413, 416 (CA 5, 1980) (Alabama state prosecution); McGee v. Estelle, 625 F.2d 1206, 1208 (CA 5, 1980) (Texas state prosecution).

A minority of courts considering this question have held that the right to counsel attaches on law enforcement's filing of a complaint and the court's issuance of an arrest warrant. Felder v. McCotter, 765 F.2d 1245, 1247-1248 (CA 5, 1985) (Texas state prosecution); Heffner v. State, 530 N.E.2d 297, 302 (Ind, 1988); People v. Superior Court of Fresno Co., 194 Cal Rptr 525, 532; 145 Cal App 3d 581 (1984); State v. Phelps, 328 NW2d 136, 139 (Minn, 1982); see also People v. Fulton, 201 Cal Rptr 879, 884; 155 Cal App 3d 91 (1984) (holding that the right to counsel attached despite the absence of a formal charge or an arrest because circumstances demonstrated a "formal accusation"). Other courts have reached the same conclusion by focusing on the prosecutor's role in obtaining the warrant and the court's function in issuing it. State v. Johnson, 318 NW2d 417, 434-435 (Iowa, 1982); Commonwealth v. Richman, 458 Pa 167, 171-174; 320 A.2d 351 (1974); United States ex rel Robinson v. Zelker, 468 F.2d 159, 163 (CA 2, 1972) (New York state prosecution).

Both the prosecutor and the court are involved in the issuing of an arrest warrant in Michigan. The first step in obtaining an arrest warrant is the filing of a complaint. MCR 6.101-102.

A complaint is a written accusation that a name or described person has committed a specified criminal offense. The complaint must include the substance of the accusation against the accused and the name and statutory citation of the offense. [MCR 6.101(A).]

The prosecutor must approve the complaint in writing. MCR 6.101(C). The only exception to this requirement is the rare instance when a private citizen files the complaint along with security for costs. Id.; MCL 764.1(1); MSA 28.860(1)(1); People v. Joker, 63 Mich.App 421, 427-428; 234 NW2d 550 (1975).

After law enforcement files a proper complaint, the court must issue an arrest warrant or summons if it finds probable cause to believe that the person named in the complaint committed the alleged offense. MCR 6.102(A). The warrant must:

(1) contain the accused's name, if known, or an identifying name or description;

(2) describe the offense charged in the complaint;

(3) command a peace officer or other person authorized by law to arrest and bring the accused before a judicial officer of the judicial district in which the offense allegedly was committed or some other designated court; and

(4) be signed by the court. [MCR 6.102(C).]

Once an officer makes an arrest on a...