People v. Patterson, Docket No. 9457

• Decision Date: 27 March 1971
• Docket Number: Docket No. 9457,No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence P. PATTERSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 175

198 N.W.2d 175

39 Mich.App. 467

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence P. PATTERSON, Defendant-Appellant.

Docket No. 9457.

Court of Appeals of Michigan, Division No. 1.

March 27, 1971.

Released for Publication June 7, 1972.

Leave to Appeal Denied June 22, 1972.

George Stone, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Luvenia D. Dockett, Asst. Pros. Atty., for plaintiff-appellee.

Before LEVIN, P.J., and R. B. BURNS and J. H. GILLIS, JJ.

GILLIS, Judge.

Defendant was tried in the Recorder's Court for the City of Detroit by a jury on the charge of second degree murder, M.C.L.A. § 750.317 (Stat.Ann.1954 Rev. § 28.549) and found guilty of manslaughter, M.C.L.A. § 750.321 (Stat.Ann.1954 Rev. § 28.553). He was sentenced to a term of 6 to 15 years in the state prison. He appeals as of right. We affirm.

Defendant raises six issues on appeal. Two of these concern the sufficiency of the evidence. A review of the record shows that at the close of the people's case there was sufficient evidence to support the charge of second-degree murder. There was testimony which placed the defendant at the scene of the killing and testimony which linked him to a switchblade knife. It was established that the deceased, Henry 'Doc' Savage, was stabbed three times, resulting in his death. Additional testimony disclosed that the deceased was chased by knife-wielding youths. From such evidence the requisite element of malice could be inferred. People v. Hansen (1962), 368 Mich. 344, 350, 118 N.W.2d 422; People v. McKeller (1971), 30 Mich.App. 135, 185 N.W.2d 905. Furthermore, from this same evidence the jury could find beyond a reasonable doubt defendant guilty of manslaughter. Although evidence of self-defense and justification was introduced, it is for the jury to determine the facts. People v. Moore (1943), 306 Mich. 29, 10 N.W.2d 296; People v. McKeller, Supra.

Defendant also raises on appeal two issues pertaining to the court's charge to the jury. These instructions were not objected to below and thus the issues were not properly presented for review. People v. Turner (1971), 31 Mich.App. 44, 187 N.W.2d 241. We note, however, that the instruction on reasonable doubt was consistent with the charge approved in People v. Powers (1918), 203 Mich. 40, 168 N.W. 938. Defendant's request that the lesser included offenses of assault be included in the charge was not supported by the evidence at trial. There being no evidence upon which the jury could properly find only an assault, it was not error for the trial court to refuse such request. People v. Hearn (1958), 354 Mich. 468, 93 N.W.2d 302; People v. Stevens (1968), 9 Mich.App. 531, 157 N.W.2d 495.

Also cited as error by the defendant was the admission into evidence of his confession. The record reveals that on two occasions the defendant presented himself to the police in the company of Sanford Rosenthal, an attorney who was at this time representing another defendant who was charged with the murder of 'Doc' Savage. Although there is some question as to whether or not Mr. Rosenthal was in a position to, or did, represent the defendant, the police were aware of his apparent interest in having the defendant talk to the officers in charge of the Savage case. These officers not being available on either of these two occasions, the defendant did not give himself up to their custody.

Subsequently, the defendant turned himself in to the police unaccompanied by Mr. Rosenthal. Defendant's confession thereafter followed an extensive instruction concerning his constitutional rights, including his right to have counsel present. Defendant was specifically asked if he wanted Mr. Rosenthal present. Defendant signed a waiver of his rights and at no time during his interrogation made a request for his attorney. At two hearings below the trial court concluded that the defendant's confession was understandingly and voluntarily made. We cannot agree that this finding was clearly erroneous on the present facts. People v. Werner (1970), 26 Mich.App. 109, 182 N.W.2d 13.

The defendant argues, however, that it was impermissible for the police to take a waiver of the defendant's right to counsel in the absence of Mr. Rosenthal. Recently this Court held admissible a statement taken under similar facts in People v. Jordan (1971), 34 Mich.App. 360, 191 N.W.2d 58. We cannot agree with the defendant's contention and we find no error.

Defendant also appeals from the findings of the preliminary examination, contending that there was not sufficient proof to bind defendant over on the charge of second-degree murder and that the use of defendant's confession at the examination was improper. People v. White (1936), 276 Mich. 29, 267 N.W. 777. However, the examining magistrate was himself careful to view the evidence submitted at the examination without reference to the confession. He was still able to find that the crime charged was committed and that there was probable cause to believe that the defendant committed that crime. This is all that is needed to bind the defendant over for trial. People v. Dellabonda (1933), 265 Mich. 486, 251 N.W. 594; People v. Medley (1954), 339 Mich. 486, 64 N.W.2d 708; People v. Jackson (1967), 8 Mich.App. 643, 155 N.W.2d 272; People v. Asta (1953), 337 Mich. 590, 60 N.W.2d 472.

Affirmed.

LEVIN, Presiding Judge (dissenting).

The police obtained a confessional statement from the defendant, Lawrence P. Patterson, which was admitted in evidence at his trial. The statement was voluntarily given after the Miranda ¹ warnings were read. However, at the time the statement was given, Patterson was represented by a lawyer who was not present during the interrogation. In my opinion, it was impermissible for the police, who in their continuing investigation of the crime were acting for the prosecutor, to interrogate Patterson without the consent of his lawyer. The statement should not have been admitted in evidence.

In Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246, 250 (1964), the United States Supreme Court held that Massiah was denied his Sixth Amendment right to the assistance of counsel 'when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.' Massiah made the incriminating statement during a conversation in an automobile with another person who was under investigation and who, without Massiah's knowledge, had decided to cooperate with government agents. The automobile was owned by the other person and he had allowed the government agents to install a radio transmitter in the automobile. The government agents heard the conversation by means of that electronic device.

Since the incriminating statement in Massiah was obtained surreptitiously, the Massiah Court had no occasion to consider whether a defendant who is represented by counsel may, without the advice of counsel, waive his right to have counsel present during an interrogation by the police. Some courts take the view that Massiah lays down a broad constitutional doctrine requiring the presence of a defendant's lawyer before any further interrogation, so that the defendant cannot be asked or permitted to decide whether he wishes to waive the benefit of counsel without his lawyer's advice. ² Other courts take the view that a defendant may waive the presence of his lawyer without the benefit of the lawyer's advice and counsel. ³

I see no need to decide this case in constitutional terms. The Canons of Professional Ethics prohibit a lawyer from communicating upon the subject of the controversy with a party represented by a lawyer without the consent of that lawyer. Old Canon 9 provided:

'A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel.'

This was interpreted in Opinion 41 of the Committee on Professional and Judicial Ethics of the State Bar of Michigan to mean:

'It is improper for a lawyer to interview an adverse party with respect to the facts of the case, Without consent of his counsel, despite the fact that such party will be a witness at the trial.' (Emphasis supplied.) ⁴

The prohibition against communication with an adverse party without the prior consent of the lawyer representing that party is stated in so many words in new Disciplinary Rule 7--104, which provides that a lawyer may not 'communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter Unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.' (Emphasis supplied.) ⁵

The canons, both the old and the new, and the new disciplinary rules have been adopted by the Supreme Court of the State of Michigan, ⁶ and have the force of law.

The prohibition against Indirect communication with an adverse party--spelled out in the new disciplinary rule in the following language: 'cause another to communicate on the subject of the representation'--is not a new development. In Opinion 95 of the American Bar Association Committee on Professional Ethics and Grievances it was ruled that:

'For the law officer of a municipality to permit police officers or detectives to obtain written statements of claimants after such claims for injuries have been put in the hands of an attorney for attention, of which fact the law officer has knowledge, is a violation of Canon 9.'

The committee reasoned that 'it is encumbent upon a lawyer not to attempt clandestinely to practice coercion on a party who is represented by counsel. Wha...