People v. Green
| Decision Date | 26 January 1979 |
| Docket Number | No. 3,Docket No. 59674,3 |
| Citation | 274 N.W.2d 448,405 Mich. 273 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ernest Early GREEN, Defendant-Appellant. Calendar |
| Court | Michigan Supreme Court |
L. Brooks Patterson, Pros. Atty., Oakland County, Robert C. Williams, Chief Appellate Counsel by Thomas S. Richards, Asst. Pros. Atty., Pontiac, for plaintiff-appellee.
Kuirsky & Sharbaugh by Dennis J. Kuirsky, Pontiac, for defendant-appellant.
The defendant appeals his conviction of first-degree murder. The question presented is whether voluntary statements made by the defendant to a detective and an assistant prosecuting attorney after knowingly and understandingly waiving his right to an attorney and his right to remain silent must nonetheless be suppressed if the assistant prosecuting attorney violated Disciplinary Rule 7-104(A)(1) of the legal profession's Code of Professional Responsibility, which states:
The Court of Appeals ruled, one judge dissenting, that an ethics violation alone does not warrant or require the suppression of voluntary statements. 74 Mich.App. 351, 253 N.W.2d 763 (1977).
We affirm.
On October 19, 1974 at approximately 8:30 p. m., the victim left her home and drove to a nearby market to purchase some milk. She took her six-month-old child with her. Patrons of the market and a cashier saw her in the market with her child just before closing at approximately 8:45 p. m. Her husband awoke from a nap at approximately 11:45 p. m. and became worried when he discovered that she was not yet home. He telephoned a relative and together they began looking for her. At approximately 12:30 a. m., they found her car in the market parking lot with the keys in it and the child asleep on the front seat. After a futile search of the surrounding area, they drove the car home and telephoned the police.
The victim's whereabouts remained unknown until the late afternoon of October 21 when some hunters found her body floating in a nearby river. An autopsy performed the next day revealed that she had been stabbed once in the back and once in the chest. The chest wound was near the sternum. It penetrated through some soft tissue between the fourth and fifth ribs and continued through the front and back walls of the victim's heart. The back wound penetrated through both walls of the victim's left lung. The cause of death was shock and hemorrhaging.
On October 23 a citizen spoke to the police and implicated the defendant in the murder. A police officer visited the man at his home and, while the officer listened on an extension, the man telephoned the defendant and expressed concern about the possibility of fingerprints or other incriminating evidence. The defendant said not to worry about these things.
On October 24 the police arrested the defendant and booked him for murder. The detective in charge of the case then drove the defendant to the area where the victim's body had been found and advised the defendant of his Miranda 1 rights by reading from a card that said:
2
On the back of the card were these questions:
3
The defendant indicated that he understood his rights and would waive them. He then denied having any knowledge of the murder.
On October 28 the defendant sent a message to the detective asking to speak with him. The defendant complained that the guards at the jail were harassing him. That afternoon the detective visited the defendant at the jail. After hearing his Miranda rights and again waiving them, the defendant proffered a statement concerning his supposed whereabouts on the night of the crime and again denied having any knowledge of the murder. At the end of this discussion the detective asked the defendant if he was telling the truth and the defendant said that he was.
On October 31, counsel was appointed to represent the defendant.
On November 19 the man who originally implicated the defendant in the murder testified against the defendant at the preliminary examination. He had been the defendant's homosexual lover until the day of the arrest.
According to this witness, the defendant arrived at the home of a mutual acquaintance between 9 p. m. and 10 p. m. on October 19, 1974. At approximately 11 p. m. they all decided to go to a party in Detroit. As they entered the defendant's car, the defendant asked the acquaintance to hand him the coat lying on the back seat because "there's something in there that probably would be dangerous to him". After they returned from Detroit, the acquaintance was taken home. The defendant then said that he had something to tell the witness and that the witness could not tell anyone else about it. The defendant reached underneath the front seat of his car, pulled out a large knife and said that he "had just killed his old lady". When the witness expressed disbelief, the defendant said, "I'm serious" and proceeded to detail the circumstances of the crime. He said he stabbed her in the chest and "it went in easy". (To illustrate the location of the wound, he put the point of the knife on the chest of the witness near the witness's sternum.) He also said he left her keys and her sleeping child in her car and had dumped her body in the water near the area where the body eventually was found. When the witness continued to express disbelief, the defendant pointed to what he said was a bloodstain on the knife.
Shortly after this conversation, at approximately 4 a. m. on October 20, the defendant and the witness entered another car with some friends who were taking one of the passengers home. On the way to that residence, the defendant asked the driver to take a slight detour. The detour led past the market where the victim's car had been found. The defendant said that he wanted to "check out something". As they drove past the market, the defendant said, "It's gone."
Primarily on the basis of this testimony, the defendant was bound over for trial on an open charge of murder.
Sometime during the middle of November, the defendant again sent word to the detective, asking to speak with him. The detective and the assistant prosecuting attorney assigned to the case visited the defendant at the jail. However, when the detective advised the defendant of his Miranda rights, the defendant indicated that he wanted to speak with his attorney before talking further about the case. The discussion ceased immediately at that point.
Near the end of January, 1975, the defendant again sent word to the authorities expressing a desire to talk. 4 On January 29 the detective and the assistant prosecuting attorney spoke with each other and then visited the defendant at the jail. 5 They did not communicate with the defendant's attorney. The detective advised the defendant of his Miranda rights. The defendant waived his rights and said that he wanted to talk to the authorities without his attorney present. 6 The detective asked about the murder and the defendant proceeded to tell an exculpatory story about driving to a store on the night of the crime to purchase some wine and meeting a man who revealed a large knife and said something about "killing this bitch". The defendant said he gave this man a ride to a bar and later discovered that the man had managed to slip the knife underneath the defendant's coat in the back seat of the defendant's car. The defendant said he threw the knife in some bushes next to a restaurant parking lot in Detroit. He refused to identify the man. At the end of this story, the assistant prosecuting attorney, who, up to that point, had only been taking notes, asked the defendant if he was telling the whole truth. The defendant said that he was.
Prior to trial an evidentiary hearing was held to determine the admissibility of the defendant's statements. After testimony was taken, defense counsel objected to the admission of the January 29 statements on the ground that the defendant had not been advised prior to making the statements that the penalty for first-degree murder was mandatory life. In passing, defense counsel added:
"I just think for an assistant prosecuting attorney and Detective Blum to interrogate Ernest Green and not advise him of that or even volunteer to invite me to the jail, I don't think that the admissions made on January 29, 1975 should be admissible." 7
The trial judge overruled the objection and the statements were ultimately admitted into evidence at trial.
The jury convicted the defendant of first-degree premeditated murder.
On appeal the defendant has not argued that his statements were involuntary or that the authorities failed to comply with the Miranda requirements. Instead he contends that the statements should have been suppressed because the assistant prosecuting attorney violated DR 7-104(A)(1). Alternatively he contends that the...
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