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People v. Harrington10/2/2003
respect to the charges filed against the defendant. An exception to this rule exists where the defendant initiates the contact and makes a valid waiver of his rights.
On the instant facts, we are convinced that defendant's statements were obtained in violation of his Sixth Amendment right to counsel. In People v Anderson , our Supreme Court suppressed statements that were given under similar circumstances. While the police in Anderson initially contacted the defendant regarding a polygraph before his arraignment, they left a telephone message concerning the actual arrangements at the defendant's home after he had been arraigned and appointed counsel. After the polygraph was administered, the police reminded the defendant of his Miranda rights and proceeded to obtain several damaging statements. These statements were ultimately deemed inadmissible because the defendant did not initiate the post-arraignment communication. Similarly, in the instant case, it was the police that contacted defendant regarding the polygraph arrangements. And notably, this visit occurred while defendant was in jail and after his arraignment. It is further undisputed that the police knew defendant had been arraigned and appointed counsel at the time of this contact.
To the extent the prosecution claims that defendant re-initiated communication with the police by asking to speak with them after the examination, we disagree. The statements allegedly elicited from defendant were obtained during the course of ongoing contact that was originally initiated by the police. We note that the Supreme Court in Anderson did not give much credence to a similar argument when it dismissed the fact that the defendant voluntarily returned the phone call from the police as insufficient to remedy the initial contact problem.
We note our colleague's dissent on the grounds that defendant initiated the conversation with the police. The record, however, clearly indicates that it was the police that first contacted defendant after an undisputed awareness that he had obtained trial counsel. These actions were particularly inappropriate, given the Michigan Rules of Professional Conduct which forbid attorneys and their agents from communicating about the subject of the representation with a party that is represented by opposing counsel.
Given the limited evidence presented in this case of defendant's guilt and the highly inculpatory nature of his statements, we do not find that the admission of defendant's statements amounted to harmless error. Because we find that this issue is dispositive, we need not address defendant's remaining claim that his counsel's failure to move for a directed verdict amounted to ineffective assistance of counsel.
We reverse and remand for a new trial. We do not retain jurisdiction.
Jessica R. Cooper
E. Thomas Fitzgerald
KELLY, J. (dissenting):
I respectfully dissent. Because no interrogation of defendant occurred until after defendant initiated further conversations with the troopers regarding the charged crime, the trial court properly denied defendant's motion to suppress.
I.
After defendant's arrest but prior to his arraignment, Trooper Gutierrez spoke briefly with defendant at the jail. They discussed the nature of the investigation, defendant was given Miranda warnings and defendant was asked to make a statement. According to the trooper, defendant insisted on taking a polygraph exam to "prove his innocence." The trooper explained to defendant that he would be appointed an attorney at his arraignment later that day and he should speak with this attorney about taking the polygraph exam and
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