People v. Frazier

• Decision Date: 07 March 2006
• Docket Number: Docket No. 256986.
• Citation: 715 N.W.2d 341,270 Mich. App. 172
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Corey Ramone FRAZIER, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

715 N.W.2d 341

270 Mich. App. 172

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Corey Ramone FRAZIER, Defendant-Appellee.

Docket No. 256986.

Court of Appeals of Michigan.

Submitted October 19, 2005, at Detroit.

Decided March 7, 2006, at 9:00 a.m.

Released for Publication May 11, 2006.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, and

Donald A. Kuebler, Chief, Research, Training, and Appeals, for the people.

Neil C. Szabo, Flint, for the defendant.

Before: COOPER, P.J., and TALBOT and FORT HOOD, JJ.

COOPER, P.J.

The prosecution appeals, by leave granted, the July 28, 2004, order of the trial court granting defendant's pretrial motions to exclude certain evidence during his new trial. Specifically, the court prohibited the prosecution from using for impeachment purposes statements made by defendant should defendant waive his Fifth Amendment privilege and take the stand in his own defense. The United States District Court for the Eastern District of Michigan previously found that these statements were elicited in violation of defendant's Sixth Amendment right to counsel.¹ The trial court also prohibited the prosecution from presenting the testimony of two witnesses whose identity was procured from those inadmissible statements, absent a showing that these witnesses were, in fact, discovered from an independent source. We affirm in part and reverse in part.

I. Factual and Procedural Background

In 1996, defendant was convicted following a jury trial of two counts of felony murder,² two counts of possession of a firearm during the commission of a felony (felony-firearm),³ and one count of armed robbery.⁴ Defendant's convictions arose from the 1995 murders of James Goff and Aaron McColgan. Kenneth Haywood implicated defendant in the crime. Mr. Haywood told investigating officers that he drove defendant and codefendant, Idell Cleveland,⁵ to Mr. McColgan's home on the night of the murders. Mr. Haywood waited in his car while defendant and Mr. Cleveland went inside. Through the open windows of the house, Mr. Haywood heard Mr. Cleveland say, "Get on the floor." Mr. Haywood then heard two gunshots, whereupon he fled the scene alone. He went to the police station the following day, after reading of the murders in a local newspaper.

Based on the information provided by Mr. Haywood, officers executed a search warrant at defendant's home three days after the murders. Thereafter, defendant's mother retained an attorney to represent her son. The attorney advised defendant to speak with the police in an attempt to negotiate a plea bargain, and accompanied his client when he surrendered to the authorities. Two days later, and following his arraignment, defendant gave three statements to the police detailing his involvement in the crime. Although initially denying any knowledge of Mr. Cleveland's plans, defendant ultimately admitted that he knew that Mr. Cleveland was armed and intended to rob Mr. Goff and Mr. McColgan.⁶ Defendant also admitted that Mr. Cleveland gave him two $50 bills following the robbery. Defendant told officers that two men operating a street sweeper gave him a ride home following the shootings. The prosecution located these witnesses, Anthony Wright and Wilbert Mack, who testified that defendant indicated that he had been at a party and could not find a ride home. They further testified that defendant asked them if they had change for a $50 bill.

In his first appeal, defendant alleged that counsel was ineffective for advising him to speak to the police absent an official offer to enter into a plea agreement. This Court originally affirmed defendant's convictions.⁷ Upon receiving information from the defendant that the challenged interrogations occurred following arraignment, however, the panel reconsidered and remanded for a Ginther⁸ hearing.⁹ At that hearing, defense counsel testified that he remained with defendant while he waived his Miranda¹⁰ rights and agreed to speak with the police. However, counsel admitted that he did not accompany his client into the interrogations, as he was uncertain whether the officers would have allowed him to be present. Despite counsel's abandonment of his client, the trial court denied defendant's motion for a new trial and this Court affirmed.¹¹ Defendant then filed an application for leave to appeal with the Michigan Supreme Court, which was denied.¹²

The defendant subsequently filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan. Defendant alleged for the first time in that petition that defense counsel's abandonment during the police interrogations violated his Sixth Amendment right to counsel under United States v. Cronic.¹³ The federal district court agreed and granted defendant's writ.¹⁴ The district court found that defendant was completely deprived of the assistance of counsel during a critical stage of the proceedings—the police interrogations following his arraignment.¹⁵ Accordingly, the district court found:

The absence of counsel during the interrogations tainted the whole trial process, as evidenced by the use of Petitioner's statements at trial. Allowing the State to retry Petitioner with the use of the statements made during the tainted interrogations would lead only to yet another tainted trial. Therefore, the only appropriate remedy is to not allow use of the tainted statements, should the State decide to initiate a new trial in this matter.[¹⁶]

Thereafter, the prosecution re-arraigned defendant in November of 2003.¹⁷ Prior to trial, defendant filed a motion to prevent the prosecution from making any use of his statements to the police, even for impeachment purposes. Defendant also sought to prevent the prosecution from introducing the testimony of Mr. Wright and Mr. Mack, as knowledge of their identity was only procured from defendant's inadmissible statements. The trial court excluded both the statements and any evidence derived therefrom.¹⁸ Based solely on the federal district court's order, the trial court determined that allowing the prosecution to use the statements for impeachment purposes would taint defendant's retrial. The trial court also granted defendant's motion to exclude the testimony of Mr. Mack and Mr. Wright as "fruits" of those improper statements. The court noted, however, that these witnesses could be called at trial, "if the People can provide a foundation that the discovery of these witnesses came from a different source." This Court subsequently granted the prosecution's motion for leave to appeal.¹⁹

II. Impeachment

The prosecution first contends that the trial court improperly excluded the use of defendant's statements for impeachment purposes in the event that defendant waives his Fifth Amendment privilege against self-incrimination and takes the stand in his own defense. We review a trial court's decision to admit or exclude evidence for an abuse of discretion.²⁰ However, when the trial court's decision involves a preliminary question of law, we review the issue de novo.²¹

We agree with the federal district court's determination that the prosecution is prohibited from using defendant's statements elicited during the post-arraignment interrogations in its case-in-chief. "The Sixth Amendment provides that the accused in a criminal prosecution `shall enjoy the right . . . to have the Assistance of counsel for his defence [sic].'"<sup>22</sup> The accused is guaranteed "the right to rely on counsel as a `medium' between him and the State."²³ This right attaches once formal adversary proceedings are initiated against the defendant, such as at arraignment.²⁴ Generally, a defendant who alleges that he was denied the effective assistance of counsel must establish that counsel's errors affected the outcome of his trial.²⁵ However, the complete deprivation of the assistance of counsel at a critical stage of the adversary proceedings amounts to structural error, and, therefore, prejudice is presumed.²⁶ The United States Supreme Court has repeatedly found that post-arraignment police interrogations are a critical stage of criminal proceedings at which a defendant is entitled to legal representation.²⁷ Yet, defense counsel, in this case, purposefully and unreasonably left his client to face the police interrogations alone. The prosecution did not overcome the strong presumption that defendant's subsequent waiver of his right to counsel was invalid. Accordingly, the prosecution clearly may not use defendant's statements in its case-in-chief.²⁸

While the United States Supreme Court has repeatedly excluded statements elicited in violation of a defendant's constitutional rights from the prosecution's case-in-chief, such statements, if otherwise voluntary, are admissible for impeachment purposes. In Walder v. United States,²⁹ the Supreme Court found that the prosecution may not rely on evidence seized in violation of the Fourth Amendment to establish a defendant's guilt. Yet, the Court found no reason to exclude such evidence for impeachment purposes.

It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. . . .

. . . Of course, the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief. Beyond that, however, there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government's disability to...