People v. Hickman

• Decision Date: 20 July 2004
• Docket Number: Docket No. 122548. Calendar No. 1.
• Citation: 684 N.W.2d 267,470 Mich. 602
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jonathan D. HICKMAN, Defendant-Appellant.
• Court: Michigan Supreme Court

684 N.W.2d 267

470 Mich. 602

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Jonathan D. HICKMAN, Defendant-Appellant.

Docket No. 122548. Calendar No. 1.

Supreme Court of Michigan.

Argued April 20, 2004.

Decided July 20, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Michael D. Thomas, Prosecuting Attorney, and J. Thomas Horiszny, Assistant Prosecuting Attorney, Saginaw, MI, for the people.

State Appellate Defender(by Lyle N. Marshall), Lansing, MI, for the defendant.

OPINION

CORRIGAN, C.J.

In this case, we must determine when the right to counsel attaches to corporeal identifications.We adopt the analysis of Moore v. Illinois,434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424(1977), and hold that the right to counsel attaches only to corporeal identifications conducted at or after the initiation of adversarial judicial criminal proceedings.To the extent that People v. Anderson,389 Mich. 155, 205 N.W.2d 461(1973), goes beyond the constitutional text and extends the right to counsel to a time before the initiation of adversarial criminal proceedings, it is overruled.The Court of Appeals decision is affirmed.

I.FACTUAL HISTORY AND PROCEDURAL POSTURE

Defendant was convicted of possession of a firearm during the commission or attempted commission of a felony, M.C.L. § 750.227b(1); conspiracy, M.C.L. § 750.157a; and armed robbery, M.C.L. § 750.529, for robbing the complainant of $26 and two two-way radios.The complainant testified that two men approached him from behind and robbed him.He testified that one of the men, later identified as defendant, pointed a gun at his face while the other person took the radios and money.The complainant then called the police and gave a description of the two men, as well as a description of the gun.

An officer soon saw a man fitting the description of the man with the gun.The man, later identified as defendant, was caught after a foot chase.During the chase, the police saw defendant throw something and they later recovered a chrome handgun that matched the complainant's description of the gun.Defendant was carrying one of the two-way radios.

Approximately ten minutes later, an officer took the complainant to a police car in which defendant was being held.The officer asked the complainant if the person sitting in the police car was involved in the robbery.The complainant immediately responded that defendant was the man who had the gun.

Defendant's motion to suppress an on-the-scene identification by the victim on the ground that defendant was not represented by counsel at the time of the identification was denied, and defendant was convicted.The Court of Appeals affirmed defendant's conviction.¹The Court held that the prompt on-the-scene identification did not offend the requirements set forth in Anderson and rejected defendants due process claim, holding that the identification was not unduly suggestive.

Defendant appealed, and this Court granted leave, limited to the issue "whether counsel is required before an on-the-scene identification can be admitted at trial."468 Mich. 944, 664 N.W.2d 222(2003).

II.STANDARD OF REVIEW

This Court reviews de novo questions of law relevant to a motion to suppress.People v. Hawkins,468 Mich. 488, 496, 668 N.W.2d 602(2003).The inquiry here involves issues of constitutional law, which are also reviewed de novo.People v. Herron,464 Mich. 593, 599, 628 N.W.2d 528(2001).

III.DISCUSSION

A.BACKGROUND: PEOPLE V. ANDERSON

In Anderson, the right to counsel was extended to all pretrial corporeal identifications, including those occurring before the initiation of adversarial proceedings.This extension of United States v. Wade,388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149(1967), to all pretrial identification procedures was based on "psychological principles,"389 Mich. at 172-180, 205 N.W.2d 461, and "social science,"389 Mich. at 182, 205 N.W.2d 461.

Notably absent was any grounding in our federal constitution or state constitution.In People v. Jackson,391 Mich. 323, 338, 217 N.W.2d 22(1974), this Court acknowledged that the Anderson rules were not constitutionally mandated:

The ... Anderson rules ... represent the conclusion of this Court, independent of any Federal constitutional mandate, that, both before and after commencement of the judicial phase of a prosecution, a suspect is entitled to be represented by counsel at a corporeal identification....[Emphasis added.]

The Jackson Court affirmed the Anderson rules, however, as an exercise of the Court's "constitutional power to establish rules of evidence applicable to judicial proceedings in Michigan courts and to preserve best evidence eyewitness testimony from unnecessary alteration by unfair identification procedures...."Id. at 338-339, 217 N.W.2d 22.Finally, in People v. Cheatham,453 Mich. 1, 9 n. 8, 551 N.W.2d 355(1996), this Court noted in obiter dictum that the right to counsel under Const. 1963, art. 1, § 20"attaches only at or after the initiation of adversary judicial proceedings by way of formal charge, preliminary hearing, indictment, information, or arraignment."

Thus, the Anderson rules lack a foundation in any constitutional provision, whether state or federal.Instead, the rules reflect the policy preferences of the Anderson Court.Similarly, the Jackson Court's attempt to rationalize the promulgation of the rules as an exercise of the Court's authority to promulgate rules of evidence is unpersuasive.The Anderson rules encompassed more than purely evidentiary matters,² and the rationale underlying them has since been disapproved in Moore.

B.MOORE V. ILLINOIS

In Moore, the United States Supreme Court adopted the plurality opinion in Kirby v. Illinois,406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411(1972), holding:

[T]he right to counsel announced in Wade[supra]andGilbert [v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178(1967),] attaches only to corporeal identifications conducted "at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment"... because the initiation of such proceedings "marks the commencement of the criminal prosecutions to which alone the explicit guarantees of the Sixth Amendment[³] are applicable."[Moore, supra at 226-227, 98 S.Ct. 458(citations omitted).]

The Court further noted that identifications conducted before the initiation of adversarial judicial criminal proceedings could still be challenged:

In such cases, however, due process protects the accused against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures.[Id. at 227, 98 S.Ct. 458(emphasis added; citations omitted).]

Therefore, it is now beyond question that, for federal Sixth Amendment purposes, the right to counsel attaches only at or after the initiation of adversarial judicial proceedings.

This conclusion is also consistent with our state constitutional provision, Const. 1963, art. 1, § 20, which provides:

In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury, which may consist of less than 12 jurors in prosecutions for misdemeanors punishable by imprisonment for not more than 1 year; to be informed of the nature of the accusation; to be confronted with the witnesses against him or her; to have compulsory process for obtaining witnesses in his or her favor; to have the assistance of counsel for his or her defense; to have an appeal as a matter of right, except as provided by law an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court; and as provided by law, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.[Emphasis added.]

As Judge YOUNG noted in his opinion in People v. Winters,225 Mich.App. 718, 723, 571 N.W.2d 764(1997), neither the Anderson decision nor the Jackson decision was based on our state constitutional provision; therefore, those cases cannot be read as expanding art. 1, § 20 protections beyond those provided by the Sixth Amendment.Further, this Court has already noted in Cheatham, albeit in obiter dictum, that a defendant's right to counsel under art. 1, § 20 attaches only at or after the initiation of adversarial judicial proceedings.This Court also held in People v. Reichenbach,459 Mich. 109, 119-120, 587 N.W.2d 1(1998), quotingPeople v. Pickens,446 Mich. 298, 318, 521 N.W.2d 797(1994):

[T]here exists no structural differences with regard to the right to assistance of counsel between federal and Michigan provisions.Moreover, no peculiar state or local interests exist in Michigan to warrant a different level of protection with regard to the right to counsel in the instant case.Both the federal and the state provisions originated from the same concerns and to protect the same rights.

Because the Moore analysis is consistent with both U.S. Const., Am. VI and Const. 1963, art. 1, § 20, which expressly apply only to criminal prosecutions, we adopt that analysis and hold that the right to counsel attaches only to corporeal identifications conducted at or after the initiation of adversarial judicial criminal proceedings.⁴

Further, we agree with Judge YOUNG's observation in Winters that the Anderson decision generated considerable confusion regarding its proper application.First, the Court in People v. Marks,155 Mich.App. 203, 209-210, 399 N.W.2d 469(1986), noted that although Anderson appeared to be a Sixth Amendment case, it was really divorced from any constitutional considerations.Nevertheless, the Marks Court observed that the issue of on-the-scene identification is still often raised in the context of the Sixth Amendment right to counsel.

The Winters Court also lamented the lack of any simple,...