People v. Lewis

• Decision Date: 31 July 2017
• Docket Number: No. 154396,154396
• Citation: 501 Mich. 1,903 N.W.2d 816
• Parties: PEOPLE of the State of Michigan, Plaintiff–Appellant, v. Gary Patrick LEWIS, Defendant–Appellee.
• Court: Michigan Supreme Court

501 Mich. 1

903 N.W.2d 816

PEOPLE of the State of Michigan, Plaintiff–Appellant,

v.Gary Patrick LEWIS, Defendant–Appellee.

No. 154396

Supreme Court of Michigan.

Argued April 13, 2017

Decided July 31, 2017

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jason W. Williams, Chief of Research, Training, and Appeals, and Amy M. Somers, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Chari K. Grove, Douglas W. Baker, and Jason R. Eggert) for defendant.

BEFORE THE ENTIRE BENCH

Larsen, J.

This case confronts us with two precedents of the Supreme Court of the United States that initially seem to conflict. In one, the Supreme Court remarked that denial of counsel at a critical stage of a criminal proceeding is a structural error requiring automatic reversal. See United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). In the other, the Court remanded for harmless-error analysis in a case in which it held that a defendant was denied counsel at a critical stage—his preliminary examination. See Coleman v. Alabama, 399 U.S. 1, 11, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970).¹

An error cannot be both structural and subject to harmless-error review. See Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).

The defendant in this case was deprived of the right to counsel at his preliminary examination. Believing itself bound by precedent, the Court of Appeals resolved the conflict by holding, in effect, that Cronic controlled and granting defendant an automatic new trial. But Cronic's discussion of the general remedy for complete denials of counsel was dictum; while Coleman held that the denial of counsel at a preliminary hearing—the very error at issue here—is subject to harmless-error review. When the Supreme Court's holdings and its dicta conflict, we are bound to follow its holdings. Accordingly, we reverse the judgment of the Court of Appeals, vacate Part II of its opinion, and remand the case to the Court of Appeals for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

Before his preliminary examination, defendant, Gary Lewis, had been appointed two lawyers. He was not pleased with either; indeed, the examining court noted that he had filed grievances against each of his previous attorneys. Defendant's most recently appointed attorney was present in the courtroom when defendant appeared for his preliminary examination. At the start of the hearing, the judge asked defendant to state his name for the record. Defendant replied that he was "not talking"; that he didn't have an attorney; that he was being disrespected; that his rights were being violated; and that he was "through with it." The trial judge stated that he understood defendant to have "elected that he would prefer not to have a lawyer represent him" at the preliminary examination. Defendant explicitly disagreed: "I never said that." The court proceeded anyway, with defendant acting pro se, and appointed defendant's former attorney as standby counsel. Despite many warnings, defendant repeatedly disrupted the preliminary examination and was ultimately removed from the courtroom. At that point, the judge relieved standby counsel of his duties, and the prosecution continued with the preliminary examination unopposed. Defendant was bound over for trial.

Defendant was represented by counsel at trial and was convicted by jury of one count of second-degree arson and four counts of third-degree arson. He challenged his convictions in the Court of Appeals, arguing that the deprivation of counsel at his preliminary examination was a structural error requiring automatic reversal. Believing itself bound by precedent, the Court of Appeals agreed, overturned the convictions, and remanded for a new trial. People v. Lewis, unpublished per curiam opinion of the Court of Appeals, issued July 21, 2016 (Docket No. 325782), 2016 WL 3945944. The prosecution filed an application for leave to appeal in this Court, and we ordered oral argument on the application. People v. Lewis, 500 Mich. 897, 888 N.W.2d 56 (2016).

II. ANALYSIS

The prosecution concedes that defendant lacked counsel at his preliminary examination² and that the preliminary examination is a critical stage for the purposes of the Sixth Amendment right to counsel. U.S. Const., Am. VI. The prosecution's concession is unremarkable. In Coleman v. Alabama, the Supreme Court of the United States held that Alabama's preliminary-hearing procedure was a critical stage. Coleman, 399 U.S. at 9–10, 90 S.Ct. 1999 (opinion by Brennan, J.); id. at 12, 90 S.Ct. 1999 (Black, J., concurring). Although there are variations in each state's preliminary-examination procedures, this Court has repeatedly commented that defendants have a constitutional right to counsel at preliminary examinations in Michigan. See, e.g., People v. Carter, 412 Mich. 214, 217, 313 N.W.2d 896 (1981) ; People v. Mitchell, 454 Mich. 145, 161 n. 15, 560 N.W.2d 600 (1997). This case asks us to consider the remedy when that right to counsel is denied.

Two cases compete for our attention. The prosecution directs us to Coleman. In that case, the defendant was denied counsel at his preliminary hearing. The Supreme Court held that the hearing was a critical stage because of the "inability of the indigent accused on his own to realize the[ ] advantages of a lawyer's assistance" at such a proceeding.³ Coleman, 399 U.S. at 9–10, 90 S.Ct. 1999 (opinion by Brennan, J.); id. at 12, 90 S.Ct. 1999 (Black, J., concurring) (agreeing that "the preliminary hearing is a ‘critical stage’ "). A majority of the Court determined that the proper remedy was to remand the case to the Alabama courts to consider "whether the denial of counsel at the preliminary hearing was harmless error." Id. at 11, 90 S.Ct. 1999, citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Defendant points to United States v. Cronic. There, the Court remarked that some "circumstances ... are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Cronic, 466 U.S. at 658, 104 S.Ct. 2039. The Court began with the "most obvious" of these circumstances—"complete denial of counsel"—and commented that "a trial is unfair if the accused is denied counsel at a critical stage of his trial." Id. at 659, 104 S.Ct. 2039.

Coleman's review for harmless error is obviously incompatible with the automatic reversal suggested by Cronic. Defendant asks us to hold, therefore, that Cronic silently abrogated Coleman and to automatically reverse his conviction. We decline to do so.

It is an elementary proposition that "state courts are bound by United States Supreme Court decisions construing federal law," including the Constitution. People v. Gillam, 479 Mich. 253, 261, 734 N.W.2d 585 (2007). But when two statements conflict, we must prefer a holding of the Supreme Court to its dictum. See Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed. 2d 391 (1997).

Cronic was a case about the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution. The defendant was on trial in a mail-fraud case involving $9.4 million in transferred checks. Cronic, 466 U.S. at 649, 104 S.Ct. 2039. His retained counsel had withdrawn shortly before the scheduled trial and a young lawyer with a real-estate practice, and no criminal-trial experience, had been appointed to represent the defendant. Id. The Government's investigation had taken more than four years, but defense counsel was given only 25 days to prepare for trial. Id. The defendant challenged his conviction on the ground that, under the circumstances, he had been deprived of the effective assistance of counsel. The United States Court of Appeals for the Tenth Circuit agreed.

United States v. Cronic, 675 F.2d 1126 (C.A. 10, 1982). Even though the defendant could not point to any specific errors in his counsel's performance, or prejudice flowing therefrom, the federal appellate court held that "no such showing is necessary ‘when circumstances hamper a given lawyer's preparation of a defendant's case.’ " Cronic, 466 U.S. at 651, 104 S.Ct. 2039. The Supreme Court reversed, holding that the defendant could "make out a claim of ineffective assistance only by pointing to specific errors made by trial counsel." Id. at 666, 104 S.Ct. 2039.

Along the way, the Court's opinion in Cronic contrasted claims of ineffective assistance with other errors "so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Id. at 658, 104 S.Ct. 2039. It deemed "[m]ost obvious" among them "the complete denial of counsel ... at a critical stage of his trial." Id. at 659, 104 S.Ct. 2039. But the question in Cronic was not whether the defendant had been denied counsel completely, much less whether he had been completely denied counsel at a preliminary hearing. It was, instead, whether his counsel had provided effective assistance at trial. And so the Court's statements about the complete denial of counsel were dicta.⁴

The Coleman decision, by contrast, is directly on point. Although it is short on explanation for its remedy, the Court plainly held that the deprivation of counsel at a preliminary examination is subject to harmless-error review under the federal Constitution. See Coleman, 399 U.S. at 11, 90 S.Ct. 1999. Accordingly, we apply that decision, rather than the dictum in Cronic .⁵

We note that our resolution is consistent with that of other courts which have examined the tension between Coleman and Cronic. See, e.g., Takacs v. Engle, 768 F.2d 122, 124 (C.A. 6, 1985) (holding that "Coleman's harmless error analysis remains good law" despite the defendant's argument that it had been overruled by Cronic and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)...