People v. Pottruff

• Citation: 116 Mich.App. 367,323 N.W.2d 402
• Decision Date: 01 September 1982
• Docket Number: Docket No. 55769
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James D. POTTRUFF, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 402

323 N.W.2d 402

116 Mich.App. 367

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James D. POTTRUFF, Defendant-Appellant.

Docket No. 55769.

Court of Appeals of Michigan.

Submitted March 5, 1982.

Decided May 20, 1982.

Released for Publication Sept. 1, 1982.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Martin M. Holmes, Pros. Atty., and Edgar L. Church, Jr., Asst. Atty. Gen., Pros. Attys., Appellate Service, for the People.

James Krogsrud, Asst. State Appellate Defender, for defendant-appellant.

Before WALSH, P. J., and CYNAR and HOOD, ^* JJ.

CYNAR, Judge.

Defendant was charged with and, after a two-day jury trial, convicted of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2). Defendant was sentenced on November 4, 1980, to serve 8 years minimum and 14 years maximum. Defendant appeals as of right.

The alleged victim of this crime, Victoria (Vicki) Stoneburner, testified that she is six years old and that when she was five defendant put his "thingie" (penis) in her mouth. He also put it in her "cooter" (vagina). She testified that when she screamed and cried, defendant slapped her on the face and the chest. Defendant told her she would get a whipping if she told anyone.

On cross-examination she testified that she told her mother the next day that defendant said to suck it and that he put it in her "cooter". She further testified that she never saw her mother with her mouth on defendant's penis.

Deborah Stoneburner, Vicki's mother, testified that she was with defendant on September 21, 1979, and Vicki was present also. Around 9 p. m., defendant asked her to get a clock from defendant's mother's home. She testified that she went home with Vicki the next day. She then testified as to what her daughter told her concerning this incident. It appeared that Vicki initiated the conversation without being prompted by Deborah.

Mason County Deputy Ray Anderson testified that he took a statement on October 18, 1979, from defendant after informing him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant told him that he had a broken zipper on his pants and that Vicki grabbed his penis and put it in her mouth. He said she told him she did it because she saw her mother do it and she thought she would like to be like her mother.

The written statement given by defendant on October 18, 1979, was read into the record, there being no objection.

The prosecutor then sought a court ruling on two statements made by defendant on January 3, 1980, and January 4, 1980, one of which was suppressed while the other was admitted.

The jury found defendant guilty of criminal sexual conduct in the first degree.

I

The prosecutor made an offer of proof for the purpose of having the court rule on the admissibility of two statements taken from defendant on January 3, 1980, and January 4, 1980. He indicated that he and defense counsel agreed that defendant would take a polygraph examination and defendant did in fact take that examination. After the examination was finished, Lieutenant Garchow gave defendant his Miranda rights and defendant indicated he would talk to Garchow. Defendant said that "what Vicki Stoneburner had previously said in her statement was the truth". That statement was overheard by officer Kreig who was in the next room observing the examination and the statement through a one-way mirror and could hear the entire conversation. In suppressing the January 3, 1980, statement, the court said:

"And, prior to the transporting occurring, the defense attorney had represented the defendant and the officers were aware that the defense attorney had instructed the defendant not to communicate or to answer any questions. The Court in this situation finds that the defense attorney agreed to the application of a polygraph test, and that that agreement would be limited to an application of a polygraph test, and that no permission would've been given for a follow through questioning or interrogation to take place. And, for that reason, the Court finds that any statements that were made to the officer following that polygraph test would not be admissible in evidence against the defendant at this trial."

The January 4, 1980, statement which the prosecutor wished to have admitted was taken at the sheriff's department by officer Kreig on the day following the polygraph examination. The court ruled that this statement was admissible because it felt "that when the defendant was back in Mason County, and that an overnight time period had taken place, that the defendant was then out of the influence or the effect of the polygraph situation. And, that he was also then removed from the effects of any stipulation that pertained to the allowance of the taking of a polygraph."

In Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964), the Court held that the defendant was denied his Sixth Amendment right to 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". Affirmative interrogation clearly falls under the rule of Massiah. United States v. Henry, 447 U.S. 264, 271, 100 S.Ct. 2183, 2187, 65 L.Ed.2d 115 (1980).

The Sixth Amendment right to counsel

"prohibits law enforcement officers from "deliberately elicit[ing]' incriminating information from a defendant in the absence of counsel after a formal charge against the defendant has been filed. Custody in such a case is not controlling; indeed, the petitioner in Massiah was not in custody. By contrast, the right to counsel at issue in the present case is based not on the Sixth and Fourteenth Amendments, but rather on the Fifth and the Fourteenth Amendments as interpreted in the Miranda opinion. The definitions of 'interrogation' under the Fifth and Sixth Amendments, if indeed the term 'interrogation' is even apt in the Sixth Amendment context, are not necessarily interchangeable, since the policies underlying the two constitutional provisions are quite distinct." Rhode Island v. Innis, 446 U.S. 291, 300, fn. 4, 100 S.Ct. 1682, 1689 fn. 4, 64 L.Ed.2d 297 (1980).

In Edwards v. Arizona, 451 U.S. 477, 479-483, fn. 7, 101 S.Ct. 1880, 1882-1883, fn. 7, 68 L.Ed.2d 378, 383, fn. 7 (1981), the Court indicated that Massiah "held that the Sixth Amendment right to counsel arises whenever an accused has been indicted or adversary criminal proceedings have otherwise begun and that this right is violated when admissions are subsequently elicited from the accused in the absence of counsel".

In the instant case, defendant had a preliminary examination on October 29, 1979, some two months prior to the challenged statement.

Finally, in People v. Paintman, 412 Mich. 518, 315 N.W.2d 418 (1982), the Court suppressed the statements of the defendants because there had been an ineffective waiver of counsel during custodial interrogations. Defendant Conklin was represented by counsel, and the officers were aware that he was represented but did not contact the attorney prior to questioning. A waiver of that right is valid, after the right has been invoked, only when the defendant initiates further communication with the police. Id., 524-526, 315 N.W.2d 418, Edwards, supra, 451 U.S. 477, 485, 101 S.Ct. 1880, 1885, 68 L. Ed.2d 378, 387. The question of retroactivity of Edwards has been decided in Paintman, supra, 412 Mich. 530-531, 315 N.W.2d 418. Because Edwards did not establish a new rule of law, retroactivity is not a question and the case is inapplicable.

Accordingly, the statement was erroneously admitted at trial. The statement was taken in violation of defendant's Sixth Amendment right to counsel under Massiah and its progeny and of defendant's Fifth Amendment rights under Miranda and Edwards, no valid waiver having been shown. A reading of Miranda rights and the fact that defendant responds to subsequent questions is insufficient to establish a valid waiver. Edwards, supra, 451 U.S. 477, 484, 101 S.Ct. 1880, 1884, 68 L.Ed.2d 378, 386. The error could not be considered harmless since defendant was effectively impeached by the use of that statement. Therefore, defendant is entitled to a new trial.

II

The information charged defendant with one count of sexual penetration with a person under 13 years of age. The prosecution backed up the charge with two different factual situations: fellatio and vaginal penetration. The district court bound the defendant over on the one and only crime charged--criminal sexual conduct in the first degree. The district judge then ruled that:

"based on the evidence that it has heard today that there is not probable cause to believe, nor is there competent proofs regarding the matter of actual penetration of the vagina of this alleged victim in this particular case. Court realizes that there was some testimony to that effect and I'm not going to take that away from the People in this case, but the court simply does not feel that the testimony in that regard was competent.

"So, just so you understand me completely, what I'm binding this defendant over on is on the crime charged, the oral penetration with this alleged victim and the defendant, wherein the defendant allegedly placed his penis in her mouth."

Defense counsel, prior to trial, objected to the endorsement of Dr. Carney who would testify on vaginal penetration. Defense counsel indicated that the circuit court did not have jurisdiction of the vaginal penetration claim by reason of the limitation stated by the district judge at the preliminary examination. The circuit court ruled as follows:

"The Court then, this Court would then interpret the language to simply mean that the District Court was finding sufficient evidence to bind over. But, it was leaving it for further proceedings, including the trial stage, for...