People v. Frazier, Docket No. 131041. Calendar No. 3.

CourtSupreme Court of Michigan
Citation733 N.W.2d 713,478 Mich. 231
Docket NumberDocket No. 131041. Calendar No. 3.
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Corey Ramone FRAZIER, Defendant-Appellee.
Decision Date06 June 2007

Ronald Frantz, President, Kym L. Worthy, Prosecuting Attorney, and Timothy A. Baughman, Chief of Research, Training, and Appeals, Detroit, for amici curiae Prosecuting Attorneys Association of Michigan.

CORRIGAN, J.

This 1995 murder case has a long history in the Michigan and federal courts. Following the affirmance of defendant's convictions in our state courts, the United States District Court for the Eastern District of Michigan, on habeas corpus review, ordered defendant's release unless he was given a new trial in which his confession would be excluded from evidence. The district court ordered this result because of retained counsel's deficient performance, not because of any police misconduct.

During pretrial hearings, the trial court also suppressed the testimony of two witnesses—street sweepers whose identities were "fruits" of defendant's confession— unless the prosecution could show that it discovered the street sweepers' identities from an independent source. Following the prosecution's interlocutory appeal, the Court of Appeals agreed that the trial court should conduct an "inevitable discovery" hearing.

We granted the prosecution's application for leave to file an interlocutory appeal to consider the proper scope of the exclusionary rule as it applies to the testimony of the street sweepers. We reverse the Court of Appeals expansive holding that the exclusionary rule applies to the testimony of the street sweepers. Because defendant's confession did not result from police misconduct, the purpose of the exclusionary rule is in no way served by excluding the street sweepers' testimony. Further, the degree of attenuation between the violation of defendant's Sixth Amendment rights and the street sweepers' testimony dissipated any taint.

We also vacate the Court of Appeals endorsement of the federal district court's errant legal analysis in holding that defendant's confession must be excluded. The district court mistakenly applied the test from United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), rather than the test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in holding that defendant's Sixth Amendment rights had been violated. Nonetheless, despite the federal district court's faulty analysis, we acknowledge the binding force of the district court's ruling excluding defendant's confession. We remand this case for retrial at which the street sweepers' testimony may be admitted.1

I. UNDERLYING FACTS AND PROCEDURAL HISTORY

Two victims were robbed and fatally shot in one of the victim's homes in Grand Blanc, Michigan. Kenneth Haywood told the police that he drove defendant and defendant's accomplice, Idell Cleveland, to the home on the night of the murders and waited in the car while defendant and Cleveland entered the home. Haywood heard Cleveland say, "Get on the floor" and then heard two gunshots. Haywood fled, leaving defendant and Cleveland in the house without transportation from the scene.

After interrogating Haywood, the police searched defendant's home and obtained an arrest warrant. Defendant's mother retained an attorney for him. Defendant told that attorney that, although he had been present when Cleveland robbed and murdered the victims, he did not know that Cleveland intended to rob the victims and he had not been involved in the murders. Defendant told counsel that he wanted to talk to the police about his noninvolvement in the crimes. Relying on defendant's assertions of innocence, defense counsel advised defendant that one option would be to talk to the police and tell the truth. Counsel then arranged defendant's surrender and accompanied him to the station, where defendant was arrested and later arraigned. Although the prosecutor told defendant and his counsel that he would not plea bargain or make any "deals," defendant nonetheless insisted on talking to the police. Defense counsel also advised defendant that talking to the police might assist in efforts to negotiate a plea bargain. Defense counsel was present when the police furnished Miranda2 warnings and when defendant waived those protections. Defense counsel then left the police station before defendant was interrogated because he assumed that he could not be present during questioning.

During the police interrogation, defendant, contrary to what he told defense counsel, admitted that he knew Cleveland had been armed and had intended to rob the victims. He also admitted that Cleveland paid him with two $50 bills after the murders. He told the police that two street sweepers gave him a ride home after the murders and that he asked them to change a $50 bill. The police later located the street sweepers, who testified that defendant approached them for a ride at a gas station and asked if they had change for a $50 bill.

Following his 1996 jury trial, defendant was convicted of two counts of felony-murder, MCL 750.316; one count of armed robbery, MCL 750.529; and two counts of possession of a firearm during the commission of a felony, MCL 750.227b. The Court of Appeals initially affirmed defendant's murder and felony-firearm convictions, but vacated his armed robbery conviction on double jeopardy grounds. People v. Frazier, unpublished opinion of the Court of Appeals, issued February 27, 1998 (Docket No. 193891). The Court of Appeals then granted rehearing and again vacated defendant's armed robbery conviction on double jeopardy grounds, but remanded "for a Ginther3 hearing on the issue whether defendant was denied the effective assistance of counsel by trial counsel's advice that he made statements to the police about his role in the crime." People v. Frazier (On Rehearing), unpublished opinion per curiam of the Court of Appeals, issued August 7, 1998, 1998 WL 1990402 (Docket No. 193891), slip op. at 2. On remand, the trial court concluded after a Ginther hearing that counsel had not been ineffective. The Court of Appeals affirmed, People v. Frazier (After Remand), unpublished opinion per curiam of the Court of Appeals, issued April 21, 2000, 2000 WL 33423200 (Docket No. 193891), and this Court denied leave to appeal, 464 Mich. 851, 625 N.W.2d 384 (2001).

The United States District Court for the Eastern District of Michigan conditionally granted defendant's petition for a writ of habeas corpus on the ground that counsel abandoned defendant during the police interrogation in violation of defendant's Sixth Amendment right to counsel under Cronic, supra. Frazier v. Berghuis, unpublished opinion of the United States District Court for the Eastern District of Michigan, issued August 6, 2003, 2003 WL 25195212 (Docket No. 02-CV-71741DT). The federal district court ruled that counsel's absence during a critical stage (the interrogation) "tainted the whole trial process, as evidenced by the use of Petitioner's statements at trial." Id., slip op. at 7. The court held that "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." Id. Thus, the district court ruled that defendant's confession would be inadmissible on retrial. The prosecution did not further appeal this decision.

The case was then set for retrial in the Genesee Circuit Court. Before trial, the trial court excluded defendant's custodial statements for all purposes. The court, citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), also held that the exclusionary rule applied to any derivative evidence from those statements, including the testimony of the street sweepers. The court stated that "knowledge gained by the government's own wrong cannot be used by it in the way proposed." The court also held, however, that the prosecution could call the street sweepers to testify at trial if the prosecution could establish that it in fact discovered the identity of these witnesses from a source independent of defendant's inadmissible statements. The prosecution appealed.4

A split Court of Appeals panel affirmed in part and reversed in part. People v. Frazier, 270 Mich.App. 172, 715 N.W.2d 341 (2006). The majority first agreed with the federal district court that the prosecution could not use defendant's custodial statements in its case-in-chief because counsel had abandoned defendant at a critical stage of the proceedings (the police interrogation).5 But the panel, citing Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990), unanimously6 reversed the trial court's order prohibiting the use of defendant's custodial statements for impeachment purposes.

The majority next held that the exclusionary rule and the "inevitable discovery" doctrine applied to the street sweepers' testimony. The majority explained that the United States Supreme Court has applied the exclusionary rule to Sixth Amendment violations, and that the street sweepers' testimony is "fruit of the poisonous tree" that must be excluded unless the prosecution can make an affirmative showing that the street sweepers' identities would have inevitably been discovered through alternative means.7 The majority remanded to the trial court for application of the inevitable discovery doctrine.

Judge Talbot dissented from the...

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