People v. Gonyea

• Decision Date: 01 October 1984
• Docket Number: Docket No. 71989
• Citation: 365 N.W.2d 136,421 Mich. 462
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry E. GONYEA, Defendant-Appellant. ,
• Court: Michigan Supreme Court

Page 136

365 N.W.2d 136

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry E. GONYEA, Defendant-Appellant.

Docket No. 71989, Oct. Term, 1984.

Calendar No. 7.

421 Mich. 462, 365 N.W.2d 136

Supreme Court of Michigan.

Argued Oct. 3, 1984.

Decided Dec. 28, 1984.

Released Feb. 1, 1985.

Rehearing Denied April 1, 1985.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Theodore O. Johnson, Pros. Atty., Michael A. Nickerson, Asst. Atty. Gen., Lansing, for plaintiff-appellee.

State Appellate Defender Office by Peter Jon Van Hoek, Asst. Defender, Detroit, for defendant-appellant.

WILLIAMS, Chief Justice.

I. INTRODUCTION

The issue in this case is whether inculpatory statements deliberately elicited from a defendant by sheriff's detectives immediately after sentencing and in the absence of retained or appointed counsel are admissible under Const.1963, art. 1, Sec. 20 for impeachment purposes in a subsequent trial of the same cause. For purposes of this case, we do not decide whether the inculpatory statements were involuntary or not. This is an issue of first impression in this Court and has not been ruled on by the United States Supreme Court.

The above issue arises from a situation where the defendant, after being sentenced on a plea-based conviction which was later overturned, was prodded into accompanying two sheriff's detectives to retrace his route on the night of the killing he was accused of having committed. The defendant had requested consultation with his counsel, but the officers told the defendant that counsel had given them permission to speak with him. It is unclear whether the detectives were mistaken or prevaricated about the permission from counsel. The evidence shows that defense counsel did not give the detectives permission to talk with the defendant. During his trip with the detectives, defendant made certain inculpatory statements.

We hold that under Const.1963, art. 1, Sec. 20 the defendant had the right to counsel when the inculpatory statements were elicited from him. Since these statements were elicited in the absence of counsel, defendant's right to counsel was violated unless the prosecution can show that defendant waived his right. In this regard, we hold that the prosecution did not meet its burden of proving that the defendant knowingly, intelligently and intentionally relinquished his right to counsel. Finally, we hold that, under Const.1963, art. 1, Sec. 20, the inculpatory statements in question elicited in violation of defendant's right to counsel are inadmissible for impeachment, as well as for substantive purposes. We reverse the judgment of the Court of Appeals and remand for a new trial.

We note that the defendant also argues that the inculpatory statements in question were inadmissible for impeachment purposes on three other grounds: first, because the statements were involuntary ; second, because the statements were taken in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, reh. den. 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981); and third, because the admission of the statements was more prejudicial than probative, see MRE 403. In light of our resolution of the art. 1, Sec. 20 right to counsel issue, we find it unnecessary to address any of these arguments. In addition, the defendant raises three separate issues. The first concerns the admissibility of certain rebuttal testimony. The second concerns alleged errors in the prosecutor's closing argument. The third deals with the sentencing judge's failure to consider a portion of a presentence psychiatric evaluation. We do not consider these three alleged errors inasmuch as they would not be dispositive and are unlikely to occur on retrial.

II. FACTS

On October 30, 1980, the defendant, Jerry E. Gonyea, was convicted of second-degree murder following a jury trial in Alpena Circuit Court. On February 20, 1981, the defendant was sentenced to life imprisonment. The Court of Appeals affirmed. We granted leave to appeal.

The defendant was convicted of having shot Leslie Herron. It seems that in the early morning hours of February 12, 1976, Ms. Herron left an Alpena bar in her car. The defendant followed her to a driveway on Catherine Street. At that point Ms. Herron entered the defendant's car, either through force or voluntarily. The two proceeded to a point several miles away on Hamilton Road, where Ms. Herron was shot. The prosecutor attempted to show that defendant intentionally shot Ms. Herron because she had continually spurned his advances.

The defendant argued that the shooting was accidental as hereinafter set forth. He testified that he was having an affair with Ms. Herron and that when he informed her that he was breaking off their relationship, she became extremely upset. As they were driving around in defendant's car, Ms. Herron complained that her toe had been injured. The defendant stopped the car and got out. He went around to the passenger side and opened the door. He then opened the glove compartment to obtain some tissue for Ms. Herron's toe. Ms. Herron, while still in the car, placed her feet outside the car on the pavement. She saw a gun in the glove compartment; and while defendant was leaning over her, she grabbed the gun. The two struggled over the gun and it discharged. The defendant indicated that he did not know who was holding the gun when it went off.

On November 5, 1976, the defendant pled guilty to second-degree murder in connection with the shooting death of Ms. Herron. He was sentenced on November 10, 1976, to life imprisonment. After sentencing, the defendant was taken to a separate room for holding purposes. The defendant was approached by two sheriff's detectives who asked the defendant to go with them so that they could clear up certain unresolved matters in their investigation regarding the killing. They reminded the defendant that he had earlier promised to accompany them when it was all over. The defendant asked, "What about my attorney? Shouldn't he be present?" The detectives advised the defendant that they had spoken with his attorney and that counsel had given them permission to talk with him.

It seems that the detectives had approached defense counsel several times seeking permission to talk to the defendant. The testimony indicated that defense counsel at no time gave them permission to talk to the defendant.

In any event, following the above representations made to defendant, he agreed to accompany the sheriff's detectives. The three men, in a sheriff's car, then retraced the route defendant took on the night of the killing. Among other things, the defendant told the detectives that when the shooting occurred, both he and Ms. Herron were standing outside the car, and that he was holding the gun.

After a lengthy appellate process, the defendant's plea-based conviction was reversed. See 406 Mich. 982, 280 N.W.2d 21. In the subsequent trial, defendant filed a pretrial motion to suppress for impeachment purposes the use of the statements defendant made to the detectives on November 10, 1976. The prosecution conceded that the statements were inadmissible in its case in chief. (Transcript, 9/26/80, pp 28-29). Following a hearing, the trial court denied defendant's motion. The defendant moved for reconsideration and filed an application for leave to appeal to the Court of Appeals. Both were denied.

During trial, the trial judge ruled that of the November 10, 1976 statements sought to be used for impeachment, only defendant's statements concerning the position of Ms. Herron and the defendant, and those indicating that defendant was holding the gun, were inconsistent with defendant's trial testimony. Therefore, only those statements could be used for impeachment. On rebuttal, the prosecutor admitted evidence in accordance with the trial judge's ruling.

III. WAIVER OF COUNSEL: ADMISSION AS DIRECT EVIDENCE

The Sixth Amendment of the United States Constitution, inter alia, guarantees a defendant the right "to have the Assistance of Counsel for his defence." U.S. Const. Am. VI. This right was adopted in those very same words in Const.1963, art. 1, Sec. 20, where it is stated that "the accused shall have the right ... to have the assistance of counsel for his defense...."

While both of the above provisions guarantee the right to counsel, in rendering our decision today, we rely solely upon the Michigan Constitution. Const.1963, art. 1, Sec. 20. Since Const.1963, art. 1, Sec. 20 provides an adequate state ground for our decision, we find it unnecessary to address the issues before us under the United States Constitution. Although we do not reach the federal question, we will, however, look to cases construing the Sixth Amendment. Inasmuch as Const.1963, art. 1, Sec. 20 and the Sixth Amendment are identical in language insofar as the right to counsel is concerned, a review of relevant federal cases can guide us in interpreting our constitution.

There are certain rules associated with the art. 1, Sec. 20 Sixth Amendment right to counsel that simply cannot be questioned. A person is entitled to the assistance of counsel at least "at or after the time that judicial proceedings have been initiated against him...." Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424, reh. den. 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 240 (1977), quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972). Any interrogation after that date without the presence of an attorney constitutes a violation of the defendant's right to counsel, unless the defendant has waived his right. Brewer v. Williams, supra, 430 U.S. pp. 401-404, 97 S.Ct. pp. 1240-1242; Massiah v. United States, 377 U.S. 201, 204-206, 84 S.Ct. 1199, 1201-1203, 12 L.Ed.2d 246 (1964). "[T]he right to counsel does not depend upon a request by the defendant...." Brewer v. Williams, supra, 430 U.S. p. 404, 97 S.Ct. p. 1242.

In the instant...