PEOPLE OF MI V JOHN RODNEY MCRAE
Annotate this Case
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Michigan Supreme Court
Lansing, Michigan 48909
Opinion
Chief Justice
Maura D. Corrigan
Justices
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED APRIL 22, 2004
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 121300
JOHN RODNEY MCRAE,
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
CORRIGAN, C.J.
In this case we must determine whether the admission
of
statements
deputy
made
violated
by
defendant
defendant’s
Sixth
to
a
sheriff’s
Amendment
reserve
rights.
We
conclude that the admission of the statements did violate
defendant’s
Sixth
Amendment
rights
because,
under
the
circumstances in this case, the reserve deputy was a state
actor at the time he questioned defendant, who had not
waived
his
Sixth
Amendment
right
to
counsel.
We
have
already concluded that such an error would not be harmless
beyond
a
decision
doubt;1
reasonable
of
the
Court
of
therefore,
Appeals
reverse
the
remand
and
we
for
new
a
trial.
I.
FACTUAL HISTORY
AND
PROCEDURAL POSTURE
Defendant was charged with first-degree murder after
the remains of fifteen-year-old Randy Laufer were found on
the
grounds
of
defendant’s
previous
residence.
After
defendant was arrested, he received his Miranda2 warnings
and invoked both his Fifth Amendment right to be free from
compelled self-incrimination and his Sixth Amendment right
to
counsel.
After
arraignment,
while
defendant
was
in
custody awaiting trial, defendant apparently requested to
speak to an old neighbor, Dean Heintzelman.
ten
years
since
defendant
had
seen
It had been
Heintzelman,
and
defendant was unaware that Heintzelman had become a reserve
police officer.
Further, defendant was unaware that both
Heintzelman and Heintzelman’s son were part of the police
team present at the scene when Randy Laufer’s body was
recovered.
Heintzelman visited defendant after he finished his
shift
as
a
reserve
deputy.
Before
visiting
defendant,
Heintzelman asked the permission of one of the corrections
1
2
465 Mich 874 (2001).
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed
2d 694 (1966).
2
officers
to
complete
with
eleven
do
o’clock
so.
badge.
at
Heintzelman
Although
night,
was
it
in
was
Heintzelman
full
some
was
uniform,
time
allowed
directly to defendant’s maximum security cell.
after
to
go
Heintzelman
later testified that he had the following conversation with
defendant:
Well, first we just started talkin’, talkin’
about – shook hands and everything, you know,
like I hadn’t seen him in a long, long
time. . . . I asked him about his boy, Marty,
‘cuz his boy Marty is the same age as my son.
. . . I told him, I said, “Well, Marty’s in here
from what I understand, too.”[3] And then he
showed me pictures of Marty’s wife and his baby,
and we carried on a conversation, like you or I
would.
And then I said – I asked John – I said,
“John, did you do what you’re charged with here?”
And he didn’t answer me. So we just went talkin’
again about, well, more or less about Marty
again.
And I said, “Well, you know, they think
Marty had something to do with that, you know,
with Randy.” And he says, “Well, if they try to
pin it on Marty, I’ll let ‘em fry my ass.”
And
that was his words.
I said, “John, did you do it?” And he just
hung his head down and said, “Dean, it was bad.
It was bad.”
That’s – we didn’t discuss it any
more.
After questioning defendant about the charges, Heintzelman
reported the discussion to Lieutenant McClellan, who was
the officer in charge of the Laufer investigation scene.
Heintzelman
3
then
volunteered
to
go
back
and
talk
to
Defendant’s son had been held as an accessory to the
murder.
3
defendant
if
McClellan
requested.
Heintzelman
was
not
permitted to speak with defendant again.
Defendant
regarding
moved
to
defendant’s
suppress
statements
Heintzelman’s
because
testimony
the
alleged
statements were obtained in violation of defendant=s right
to
counsel
and
because
defendant
was
warnings again before questioning.
hearing,
the
trial
court
denied
not
given
Miranda
After an evidentiary
defendant’s
motion
to
suppress on the ground that defendant had initiated the
conversation.
After defendant was convicted by a jury of
first-degree murder, he challenged on appeal the admission
of the statements.4
if
there
was
The Court of Appeals did not determine
error,
ruling
instead
that,
even
if
the
admission were error, it was harmless beyond a reasonable
doubt.5
Upon defendant=s first application for leave to appeal,
this
Court
statement
determined
were
error,
that
such
beyond a reasonable doubt.
if
error
the
admission
would
not
be
of
the
harmless
This Court vacated the Court of
4
Defendant also raised two other issues that are not
before this Court.
5
Unpublished opinion per curiam, issued January 12,
2001 (Docket No. 217052).
4
Appeals
judgment
in
part
and
remanded
the
case
for
reconsideration of defendant=s claim of error.6
On remand, the Court of Appeals held that the trial
court did not err in admitting this evidence, because “the
statement
at
issue
was
made
in
the
context
of
a
conversation between former friends, which, as the trial
court in this case found, was initiated by the defendant.”7
Defendant again appealed to this Court, and we granted
leave,
directing
the
parties
to
address:
“(1)
whether
defendant's statements to Officer Heintzelman constituted
the interaction of custody and official interrogation, as
discussed in Illinois v Perkins, 496 US 292 [110 S Ct 2394;
110
L
Ed
2d
243]
(1990),
and
(2)
whether
Officer
Heintzelman was a state actor at the time defendant made
the statements to him.”
468 Mich 921 (2003).
II. STANDARD
OF
REVIEW
In order to determine whether a constitutional error
occurred, we must first determine whether Heintzelman was a
state actor, which is a mixed question of fact and law.
We
review for clear error a lower court’s findings of fact,
6
465 Mich 874 (2001).
7
Unpublished opinion per curiam, on remand, issued
February 12, 2002 (Docket No 217052), slip op at 5.
5
MCR 2.613(C), and review de novo questions of law.
People
v Herron, 464 Mich 593, 599; 628 NW2d 528 (2001).
III. DISCUSSION
A. STATE ACTOR ANALYSIS
The
people
argue
that
Heintzelman
was
not
a
state
actor because he did not visit defendant in an official
police capacity, but was invited to visit defendant as a
former neighbor and friend.
That defendant was unaware of
Heintzelman’s reserve deputy status when he asked to see
him, however, does not end the inquiry.
In Griffin v Maryland, 378 US 130, 135; 84 S Ct 1770;
12 L Ed 2d 754 (1964), the Supreme Court held that “[i]f an
individual is possessed of state authority and purports to
act under that authority, his action is state action.
It
is irrelevant that he might have taken the same action had
he
acted
in
a
purely
private
capacity
or
that
the
particular action which he took was not authorized by state
law.”8
It
is
clear
from
the
record
that
Heintzelman
8
Although we agree with the dissent that not every act
performed by someone who happens to be a police officer
constitutes state action, it must be noted that the cases
cited by the dissent in support can be distinguished from
this case.
Only one case, United States v McGreevy, 652 F2d 849
(CA 9, 1981), involves a constitutional challenge.
In
McGreevy,
the
defendant
alleged
a
Fourth
Amendment
violation because the Federal Express worker who searched
his package also happened to be a police officer.
The
court rejected the Fourth Amendment claim on the ground
6
that the FedEx worker was not acting under color of state
law when he opened the package.
The court noted that the
worker did not obtain his FedEx job as a result of being a
police officer and “carefully separated” the two jobs. Id.
at 851. The same cannot be said for Heintzelman. At the
time he questioned defendant, Heintzelman was present at
defendant’s maximum-security cell at 11:30 PM by virtue of
his status as a sheriff’s reserve deputy.
He did nothing
to
“carefully
separate”
himself
from
his
apparent
authority.
The remaining cases cited by the dissent are civil
claims brought under 42 USC 1983.
The dissent does not
explain why these civil cases, predicated on federal
statute,
should
be
dispositive
for
purposes
of
constitutional claims.
Although the United States Supreme
Court has held that conduct that is state action for
constitutional purposes is action “under color of state
law” for § 1983 purposes, it has never held that the
opposite is true.
In other words, conduct that fails to
constitute action “under color of state law” for § 1983
purposes does not necessarily fail to represent state
action for constitutional purposes. In Nat’l Collegiate
Athletic Ass’n v Tarkanian, 488 US 179, 182 n 4; 109 S Ct
454; 102 L Ed 2d 469 (1988), the United States Supreme
Court merely stated that in that case, in which the
plaintiff claimed he had been deprived of his Fourteenth
Amendment due process rights in violation of § 1983, “the
under-color-of-law requirement of 42 U.S.C. § 1983 and the
state-action requirement of the Fourteenth Amendment are
equivalent.” We read the footnote as merely setting forth
the unremarkable conclusion that, for Fourteenth Amendment
violations premised on violations of § 1983, the two stateaction inquiries are equivalent.
This case, however,
involves a very different inquiry.
The other § 1983 cases cited by the dissent can be
similarly distinguished.
In Barna v Perth Amboy, 42 F3d
809 (CA 3, 1994), the plaintiffs brought a civil action
under 42 USC 1983 as a result of an alleged assault by the
defendant police officers.
The assault occurred when one
of the off-duty police officers thought he saw one of the
plaintiffs strike his sister and intervened.
The court
held that this initial altercation was a family dispute and
that the off-duty officers were therefore not acting under
color of state law.
Id. at 815. Because of the personal
nature of the dispute, the court concluded that the use of
the police-issued night stick in the fight, although
7
possessed actual state authority — he was deputized as a
Clare
County
question,
sheriff’s
then,
is
reserve
whether
deputy.
Heintzelman
The
dispositive
purported
to
act
under that authority.
The
word
deliberately,
. . . .
“purport”
the
means:
appearance
of
“1.
being;
to
present,
profess
2. to convey, express or imply.”
or
esp.
claim
Random House
objective indicia of police authority, did not transform
the personal family dispute into an action taken under
color of state law.
Bosignore v City of New York, 683 F2d 635 (CA 2,
1982), involved an off-duty police officer who used his
police-issued revolver to shoot his wife and then commit
suicide. The wife survived and attempted to bring a claim
under 42 USC 1983. The court rebuffed her attempt, stating
simply that the officer was not acting under color of state
law since his actions in shooting his wife and committing
suicide were not committed in the performance of any actual
or pretended duty, but were personal pursuits. Id. at 638639.
In Delcambre v Delcambre, 635 F2d 407 (CA 5, 1981),
the plaintiff was assaulted by her brother-in-law, who also
happened to be the police chief.
The plaintiff’s § 1983
action was dismissed because the Court found that the
altercation arose out of family and political matters and
that the plaintiff was neither arrested nor threatened with
arrest. Under the circumstances, the court found that the
family and political dispute was not conducted under color
of state law. Id. at 408.
All the above cases involved truly personal matters.
The same cannot be said here. It was only by virtue of his
position as a governmental agent that Heintzelman was able
to question defendant at the location and time he did.
Further, given the decade that had lapsed without any
contact between the two and Heintzelman’s subsequent offer
to Lieutenant McClellan to obtain more information, any
claims that Heintzelman was solely acting out of concern
for defendant’s welfare are suspect.
8
Webster’s College Dictionary (2d ed).
shows
that
Heintzelman
visited
The record evidence
defendant
in
his
full
uniform, thus creating the appearance that he was a state
actor.
Further,
Heintzelman
received
permission
from
a
corrections officer to visit defendant late at night in his
maximum-security
argument
that
cell.
an
The
ordinary
people
citizen
conceded
would
oral
have
not
at
been
granted permission under the same circumstances.
Thus, it
was only by virtue of his status as a reserve deputy that
Heintzelman
was
maximum-security
governmental
granted
cell,
agents
direct
a
are
access
restricted
normally
to
area
allowed
defendant’s
where
to
only
tread.
Further, this access was granted late at night, a time when
ordinary citizens are prohibited from visiting inmates.9
There
distance
authority.
is
no
himself
evidence
from
his
that
Heintzelman
actual
or
sought
apparent
to
police
Instead, defendant was questioned in the middle
of the night by a sheriff’s reserve deputy (albeit one he
had
known
a
decade
earlier)
in
full
uniform.
Indeed,
Heintzelman’s actions during and after the questioning only
reinforced his actual or apparent authority.
9
During his
Again, we stress that Heintzelman’s visit to
defendant at his maximum-security cell at 11:30 PM is
significant not because it somehow means Heintzelman tried
to “catch defendant off guard” as suggested by the dissent,
but because only governmental agents were allowed access to
maximum-security cells, particularly at that time of night.
9
“conversation” with defendant, Heintzelman twice brought up
the subject of defendant’s son in an apparent attempt to
get defendant to answer Heintzelman’s questions.
after
he
spoke
lieutenant
in
to
defendant,
charge
of
the
Heintzelman
Further,
contacted
investigation,
relayed
the
the
contents of the conversation, and offered to obtain more
information.
Finally, it is also telling that Heintzelman
was not allowed any further contact with defendant for fear
of violating defendant’s Sixth Amendment rights.
The
facts
of
this
case
distinguish
it
from
United
States v Gaddy, 894 F2d 1307 (CA 11, 1990), cited by the
dissent.
In
officer.
Gaddy,
the
defendant’s
aunt
was
a
police
Through her position as an officer, she learned
that the defendant was in custody.
A detective advised the
aunt that it would be in her nephew’s best interest to
cooperate, but did not request that the aunt talk to the
nephew.
The aunt contacted the nephew from her home and
encouraged him to speak.
after
waiving
his
He agreed and spoke to officials
Fifth
Amendment
and
Sixth
Amendment
rights.
In determining that the aunt was not a state actor,
the
court
noted
that
the
aunt
was
not
part
of
the
investigative team on the defendant’s case and acted solely
out of concern for his welfare.
Id. at 1311.
In contrast,
here Heintzelman was part of the police team present for
10
the recovery of the victim’s body from defendant’s former
residence.
Further, it cannot be said that Heintzelman was
acting solely out of a concern for defendant’s welfare.
He
had not seen or spoken to defendant in ten years, and, upon
reporting the conversation to his superior, volunteered to
obtain more information from defendant.
Thus, the lack of
any close relationship between Heintzelman and defendant,
along
with
Heintzelman’s
actions
after
speaking
to
defendant, distinguish this case from Gaddy.10
Taken together, the evidence shows that Heintzelman
was possessed of state authority and purported to act under
that authority.
Therefore, under Griffin, his action is
state action.
B.
SIXTH AMENDMENT ANALYSIS
The next issue is whether Heintzelman’s questioning of
defendant
violated
right to counsel.
the
Sixth
Amendment
guarantee
of
the
In Edwards v Arizona, 451 US 477, 484;
101 S Ct 1880; 68 L Ed 2d 378 (1981), the United States
10
Similarly, the facts of this case distinguish it
from Cook v Georgia, 207 Ga 820; 514 SE 2d 657 (1999).
First, although the defendant’s father in Cook was an FBI
agent, the FBI was not exercising jurisdiction over the
case—it was purely a state matter.
In contrast, here
Heintzelman was not only a part of the police team present
at the recovery of the victim’s body, but was a part of the
agency that had jurisdiction over the case.
Further, it
cannot be contended that Heintzelman’s relationship with
defendant, whom he had not seen or spoken to in a decade,
is akin to that of a father and son.
11
Supreme
Court
established
the
bright-line
rule
that
an
accused, having expressed a desire to deal with the police
only
through
counsel,
interrogation
made
by
available
a
the
standing
waiver
until
of
the
alone,
to
counsel
further
has
initiates
Paintman,
412
Mich
was
518;
extended
is
previously
We incorporated the
rule
subject
accused
counsel.
Edwards
be
been
further
The initiation of a conversation related to
investigation,
establish
not
authorities
unless
communication.
the
the
may
315
to
Sixth
to
asserted
right
rule in
People v
Edwards
NW2d
insufficient
418
(1982),
Amendment
to
and
the
claims
in
Michigan v Jackson, 475 US 625; 106 S Ct 1404; 89 L Ed 2d
631 (1986).
It is important to note that the Sixth Amendment may
be violated by questioning that does not rise to the level
of
the
custodial
Amendment.
interrogation
required
under
the
Fifth
In Fellers v United States, 540 US ___; 124 S
Ct 1019; 157 L Ed 2d 1016 (2004), a unanimous Supreme Court
clarified
that
“an
accused
is
denied
‘the
basic
protections’ of the Sixth Amendment ‘when there [is] used
against him at his trial evidence of his own incriminating
words, which federal agents . . . deliberately elicited
from him after he had been indicted and in the absence of
counsel.’”
Id. at 4, citing Massiah v United States, 377
US 201, 206; 84 S Ct 1199; 12 L Ed 2d 246 (1964).
12
The
Court
continued:
“We
deliberate-elicitation
have
consistently
standard
in
applied
subsequent
the
Sixth
Amendment cases . . . and we have expressly distinguished
this
standard
from
the
Fifth
interrogation standard . . . .”
Amendment
Id.
custodial-
This is consistent
with the Court’s holding in Michigan v Jackson, supra at
632
n
5,
that
the
Sixth
Amendment
provides
a
right
to
counsel even when there is no interrogation and no Fifth
Amendment applicability.
Even
under
Edwards,
however,
the
initiation
of
any
verbal exchange with governmental agents is insufficient to
permit further questioning. In Oregon v Bradshaw, 462 US
1039; 103 S Ct 2830; 77 L Ed 2d 405 (1983), a four-justice
plurality ruled that communications were “initiated” for
purposes
of
the
Edwards
rule
by
conversation
that
“represent[s] a desire on the part of an accused to open up
a
more
indirectly
generalized
to
the
discussion
investigation.”
relating
Id.
at
directly
1045.
or
The
dissenting justices would have defined “initiation” even
more
narrowly
as
a
communication
subject matter of the investigation.
or
dialog
about
the
Pursuant to Bradshaw,
the defendant must initiate communication concerning the
13
investigation in order to avoid running afoul of the rule
articulated in Edwards.11
We hold that Heintzelman’s questioning of defendant
violated the Edwards rule, as clarified in Bradshaw.12
solely
reviewing
Heintzelman’s
testimony
Even
regarding
his
conversation with defendant, there is no proof evincing a
desire on the part of defendant to pursue a discussion
relating
directly
Defendant
merely
or
indirectly
initiated
friend and neighbor.
a
to
social
the
visit
investigation.
with
his
old
It was Heintzelman, not defendant,
who initiated all questioning relating to the investigation
and
charges
against
defendant
for
the
murder
of
Randy
Laufer.
In fact, Heintzelman testified that he tried at least
four separate times to initiate questioning regarding the
investigation:
(1)
he
initially
volunteered
that
defendant’s son was also incarcerated, but defendant did
not respond; (2) Heintzelman expressly asked defendant if
11
Further,
even
if
a
defendant
initiates
a
conversation related to the investigation, the state must
still establish that the defendant made a voluntary,
knowing, and intelligent waiver of his right to have
counsel present at questioning under the totality of the
circumstances. Bradshaw at 1046.
12
Indeed, the people conceded at oral argument that if
Heintzelman was a state actor, the admission of defendant’s
statements
to
Heintzelman
violated
defendant’s
Sixth
Amendment rights.
14
he did what he was charged with, and again defendant did
not respond; (3) Heintzelman told defendant that the police
thought
defendant’s
son
was
involved
in
the
murder,
at
which point defendant responded that “if they try to pin it
on [my son], I’ll let ‘em fry my ass”; and (4) Heintzelman
again expressly asked defendant if he committed the murder,
and defendant responded “Dean, it was bad.
It was bad.”
Thus, not only did defendant not demonstrate any desire to
talk about the subject of the investigation, he failed or
refused
to
answer
Heintzelman’s
It
was
first
the
murder.
continued
to
press
answered.
Because defendant did not demonstrate a desire
that
when
questions
regarding
defendant
only
two
Heintzelman
defendant
finally
to discuss matters directly or indirectly related to the
investigation, Heintzelman’s questioning was in violation
of defendant’s Sixth Amendment rights.13
CONCLUSION
We
hold
deliberately
that
Heintzelman
elicited
was
incriminating
a
state
actor
statements
and
from
defendant in violation of the bright-line rule, established
13
We clarify that we do not hold, as the dissent
suggests, that a sheriff’s reserve deputy may never ask a
friend about a crime without running afoul of the Sixth
Amendment.
Rather, we hold only that if, at the time of
the questioning, that sheriff’s reserve deputy is a state
actor and questions the defendant in violation of the
Edwards rule as clarified in Bradshaw, that questioning
violates the Sixth Amendment.
15
in
Edwards
defendant
and
clarified
against
any
in
Bradshaw,
subsequent
that
protects
a
government-initiated
questioning following the exercise of the defendant’s Sixth
Amendment rights.
authority
and
Heintzelman both possessed actual state
purported
to
act
under
that
authority;
therefore, his action is considered state action.
Although
defendant may have asked to speak with Heintzelman, at no
point did defendant express a desire to discuss subjects
directly
Therefore,
or
indirectly
defendant’s
related
to
the
statements
in
investigation.
response
to
Heintzelman’s questioning regarding the murder should not
have been admitted at trial.
We have already determined
that the error was not harmless beyond a reasonable doubt;
therefore, we reverse the decision of the Court of Appeals
and remand for a new trial.
Maura D. Corrigan
Michael F. Cavanagh
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
16
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 121300
JOHN RODNEY MCRAE,
Defendant-Appellant.
_______________________________
MARKMAN, J. (dissenting).
I
respectfully
dissent.
The
majority
is
reversing
defendant's conviction of first-degree murder on the ground
that the trial court erred in admitting a statement that
defendant
made
to
Dean
Heintzelman,
defendant’s
former
neighbor and friend, who happens to volunteer as a parttime, reserve police officer.
Specifically, the majority
concludes that this admission violated defendant’s Sixth
Amendment right to counsel.
I strongly disagree.
In my
judgment, defendant’s Sixth Amendment right to counsel was
not violated because, when Heintzelman spoke to defendant,
he was acting as a friend, not as a police officer.
there
was
no
governmental
action
and,
Thus,
therefore,
no
violation of defendant’s Sixth Amendment right to counsel.
Accordingly, I would affirm the judgment of the Court of
Appeals.
I. FACTS
AND
PROCEDURAL HISTORY
Defendant was arrested and charged with first-degree
murder.
The
police
advised
defendant
of
his
Miranda1
rights, and defendant told the police that he did not wish
to
answer
While
any
questions
defendant
was
without
his
incarcerated
attorney
awaiting
present.
trial,
he
requested a visit from his former neighbor and friend, Dean
Heintzelman.
Heintzelman owns an excavating company and in
his spare time volunteers as a part-time, reserve officer.2
According
to
Heintzelman,
the
visit
began
by
defendant
talking about and showing Heintzelman pictures of his son
and his son’s wife and baby.3
At some point, Heintzelman
asked defendant whether he committed the murder with which
he was charged.
Defendant did not answer.
After further
conversation, Heintzelman again asked defendant if he was
involved in the murder.
“It was bad, Dean.
Defendant hung his head and said,
It was bad.”
Defendant brought a motion to suppress Heintzelman’s
testimony
regarding
this
statement,
alleging
that
the
1
Miranda v Arizona, 385 US 436; 86 S Ct 1602; 16 L Ed
2d 694 (1966).
2
When defendant initially requested this visit, he did
not know that Heintzelman was a reserve police officer.
However, Heintzelman had just finished transporting a
prisoner before he came to visit defendant and, thus, was
wearing his police uniform during his visit with defendant.
3
An inmate who was present during this visit also
testified that defendant and Heintzelman’s conversation
began with defendant talking about his family.
2
statement was obtained in violation of his Fifth Amendment
right to be free from compelled self-incrimination and his
Sixth Amendment right to counsel.
defendant’s motion to suppress.
The trial court denied
Following a jury trial,
defendant was convicted of first-degree murder.
The Court
of Appeals affirmed, concluding that, even if the admission
of the statement was error, it was harmless error.4
This
Court then vacated the Court of Appeals judgment in part,
concluding that, if there was error, the error was not
harmless beyond a reasonable doubt.5
On remand, the Court
of Appeals again affirmed, concluding that the trial court
did not abuse its discretion in admitting the statement.6
II.
Constitutional
STANDARD
issues
OF
are
REVIEW
reviewed
de
novo,
findings of fact are reviewed for clear error.
People v
LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
decision
whether
to
court's
discretion
admit
and
evidence
will
not
abuse of that discretion.”
be
is
within
disturbed
while
the
“The
trial
absent
an
People v McDaniel, 469 Mich
409, 412; 670 NW2d 659 (2003).
4
Unpublished opinion per curiam, issued January 12,
2001 (Docket No. 217052).
5
465 Mich 874 (2001).
6
Unpublished opinion per curiam, issued February 12,
2002 (Docket No. 217052).
3
III. ANALYSIS
After
a
defendant
has
been
indicted,
his
Amendment right to assistance of counsel attaches.
Sixth
Massiah
v United States, 377 US 201, 206; 84 S Ct 1199; 12 L Ed 2d
(1964).7
246
statements,
Accordingly,
deliberately
a
defendant’s
elicited
by
incriminating
governmental
agents
after the defendant has been indicted and in the absence of
defendant’s counsel, are not admissible at trial unless the
defendant himself initiated the conversation concerning the
investigation
with
the
governmental
agents.
Michigan
v
Jackson, 475 US 625; 106 S Ct 1404; 89 L Ed 2d 631 (1986).
The Sixth Amendment right to counsel is broader than the
Fifth Amendment right to counsel in the sense that the
Sixth
Amendment
provides
custodial interrogations.
a
right
to
counsel
beyond
Fellers v United States, 540 US
___; 124 S Ct 1019; 157 L Ed 2d 1016 (2004).
However,
“[c]onstitutional
protections
governmental action only . . . .”
as
a
governmental
Amendment
7
private
actor,
right
to
individual,
cannot
counsel.
to
Grand Rapids v Impens,
414 Mich 667, 673; 327 NW2d 278 (1982).
acting
apply
violate
Therefore, one
rather
an
Further,
than
accused’s
merely
as
a
Sixth
because
a
“In all criminal prosecutions, the accused shall
enjoy the right to . . . have the Assistance of counsel for
his defense.” US Const, Am VI. See also Const 1963, art
1, § 20.
4
person may, in some instances, be considered a governmental
actor,
does
not
mean
governmental actor.
that
this
person
is
always
a
See Polk Co v Dodson, 454 US 312, 324-
325; 102 S Ct 445; 70 L Ed 2d 509 (1981)(although a public
defender is considered a state actor when performing some
official duties, he is considered a private actor when he
is representing a criminal defendant).
Accordingly, not
every act performed by an individual who happens to be a
police officer constitutes state action.
See, e.g., Barna
v Perth Amboy, 42 F3d 809, 817 (CA 3, 1994)(an off-duty
police officer who used his night stick in a fight was not
a state actor); Bonsignore v City of New York, 683 F2d 635,
638-639 (CA 2, 1982)(an off-duty police officer’s use of a
police revolver to shoot his wife was not state action);
Delcambre v Delcambre, 635 F2d 407, 408 (CA 5, 1981)(an onduty police officer’s assault of the plaintiff at a police
station was not state action because it arose out of a
personal
threatened
dispute
to
and
the
arrest
the
officer
neither
plaintiff);
arrested
United
States
nor
v
McGreevy, 652 F2d 849, 851 (CA 9, 1981)(a police officer
who opened a package while working for Federal Express was
not a state actor).8
8
The majority observes that all the cases that I cite
are distinguishable from the instant case.
If, by this
observation, the majority means that none of these cases
5
In United States v Gaddy, 894 F2d 1307 (CA 11, 1990),
the defendant’s aunt, who happened to be a police officer,
persuaded the defendant to confess to the police.
The
United States Court of Appeals for the Eleventh Circuit
concluded that she was acting as the defendant's aunt, not
as
a
state
investigative
actor,
team
because
on
her
she
was
nephew’s
not
case,
part
of
the
she
was
not
directed by a superior to contact her nephew, there was no
evidence that she was acting in the normal course of her
duties when she initiated contact with her nephew, and she
involves a former neighbor and friend who happens also to
be a part-time, volunteer, reserve police officer, then I
agree.
However, the majority has likewise failed to cite
any case in support of its own conclusions that involves a
former neighbor and friend who happens also to be a parttime, volunteer, reserve police officer.
The majority's
response to this dissent constitutes nothing more than a
recognition that the circumstances of the instant case are
unusual ones. What the cases that I cite do stand for is
the proposition that not everything that a person who is a
police officer does constitutes state action.
The majority further criticizes some of these cases on
the ground that they address whether conduct constitutes
state action for the purpose of 42 USC 1983, while the
issue here is whether Heintzelman’s conduct constitutes
state action for the purpose of the Sixth Amendment.
However, the United States Supreme Court has stated that,
if conduct constitutes state action for the purpose of the
Constitution, it necessarily constitutes state action for
the purpose of § 1983.
Brentwood Academy v Tennessee
Secondary School Auth Assoc, 531 US 288, 295 n 2; 121 S Ct
924; 148 L Ed 2d 807 (2001).
Contrary to the majority’s
contention, the United States Supreme Court has held that
the opposite is also true. Nat’l Collegiate Athletic Ass’n
v Tarkanian, 488 US 179, 182 n 4; 109 S Ct 454; 102 L Ed 2d
469 (1988)(“the under-color-of-law requirement of 42 U.S.C.
§ 1983 and the state-action requirement of the Fourteenth
amendment are equivalent”).
6
made no written report following her communication with her
nephew.9
The facts of the instant case are similar, but even
more compelling.
course
normal
of
his
Heintzelman was not acting in the normal
duties
duties
questioning
when
included
them;
he
talked
with
transporting
Heintzelman's
duties
defendant—his
prisoners,
as
a
not
part-time,
reserve police officer were entirely noninvestigative in
nature;10 Heintzelman was not part of the investigative team
on defendant’s case;11 Heintzelman was not directed by a
superior or anyone else to contact defendant; Heintzelman
was
requested
Heintzelman
by
was
defendant
not
acting
himself
under
to
the
speak
with
direction
of
him;
the
investigating police officers; Heintzelman was not acting
in
concert
with
the
investigating
police
officers;
9
The Georgia Supreme Court looked at these same
factors in concluding that the defendant’s father, who
happened to be an FBI agent, acted as a father, not as a
state actor, when he asked his son if he had shot the
victim. Cook v Georgia, 270 Ga 820; 514 SE 2d 657 (1999).
10
When asked what his duties as a reserve police
officer
included,
Heintzelman
responded:
“I
go
on
transport, transport prisoners.
We take care of ball
games, do security at ball games. We help with visitation
at the jail. That sort of stuff.”
11
Although, as the majority states, Heintzelman “was
part of the police team present for the recovery of the
victim’s body from defendant’s former residence,” ante at
10-11, he was there, not in any sort of investigative
capacity, but simply as a volunteer to help guard the scene
until the state police forensic team arrived.
7
Heintzelman asked no follow-up questions of defendant as
would
have
any
other
minimally
trained
investigative
officer; and Heintzelman made no written report following
his conversation with defendant.12
The majority cites Griffin v Maryland, 378 US 130,
135;
84
S
Ct
1770;
12
L
Ed
2d
754
(1964),
for
the
proposition that “[i]f an individual is possessed of state
authority and purports to act under that authority, his
action is state action.”
I agree that whether Heintzelman
purported to act under state authority is the dispositive
question.
In
Griffin,
an
amusement
park
employee
identified
himself as a deputy sheriff and ordered the petitioners to
leave the amusement park.
By identifying himself as a
state officer and ordering the petitioners to leave the
park, he clearly purported to act under state authority
and, thus, his action was effectively state action.
Unlike
the
officer
in
Griffin,
purport to act under state authority.
Heintzelman
not
Rather, he purported
to do nothing more than act as a friend.
12
did
He came to see
Although the prosecutor further asserted at oral
argument that Heintzelman did not report anything about his
conversation with defendant to the investigating officers
until nearly a week after it occurred, I can find no
confirmation of this fact in the record.
However, the
record
is
similarly
bereft
of
evidence
that
this
conversation was promptly reported to the investigating
officers.
8
defendant
at
defendant’s
request,
he
spoke
to
defendant
about their families, and he asked defendant, as a friend
might do when his friend has been accused of murder, what
was going on.
as
a
Further evidence that Heintzelman was acting
friend,
Heintzelman
not
asked
as
a
police
defendant
if
officer,
he
was
is
that
involved
when
and
defendant said, “Dean, it was bad,” rather than pressing
defendant for further evidence of guilt, as anyone acting
as a police officer would certainly do, he simply left.
Heintzelman behaved, not as a police officer would, but as
a
disappointed
friend
would
when
confronted
with
an
incriminating statement made by one’s friend concerning a
heinous murder.13
The majority’s conclusion that Heintzelman acted as a
state actor when he spoke with defendant is based entirely
13
The majority states that the fact that after
Heintzelman was confronted with defendant’s incriminating
statement, he “offered to obtain more information” from
defendant evidences that Heintzelman was acting, not as a
friend, but as a state actor when he spoke with defendant.
Ante at 10.
If Heintzelman had, in fact, spoken with
defendant as he offered to do, this would certainly be
relevant in determining whether the subsequent conversation
with defendant constituted state action. However, the fact
that Heintzelman, after being confronted with defendant’s
incriminating statement, decided that he would be willing
to speak to defendant in order to help the investigating
officers, sheds no light on whether Heintzelman went to see
defendant in the first place as a governmental agent or as
a friend.
Indeed, if anything, Heintzelman's offer of
future assistance to the officers implies that his initial
conversation with defendant had a different purpose.
9
on
the
fact
reserve
that
police
Heintzelman
officer,
and
served
that
as
when
a
he
part-time,
spoke
with
defendant it was late at night and he was wearing a police
uniform.
As
explained
above,
not
everything
a
police
officer does, regardless of when it is done and regardless
of the circumstances under which it is done, constitutes
state action.
Not even everything a police officer, who
happens
uniformed,
to
be
does
constitutes
state
action.
That Heintzelman happened to be wearing a uniform when he
spoke
with
defendant
does
not
transform
personal actions into state actions.14
Heintzelman’s
Likewise, the fact
that their conversation took place after normal visiting
hours
does
not
transform
Heintzelman’s
personal
conversation with defendant into state action.15
14
Heintzelman was wearing a uniform, not because he
was attempting to intimidate defendant, or to communicate
his public authority, but because he came to visit
defendant at defendant's request at a time when he happened
to be in uniform.
15
Heintzelman visited defendant at around 11:00 P.M.,
not because he was attempting to catch defendant off guard,
but because he happened to be at the jail where defendant
was incarcerated at that time since he had just finished
transporting a prisoner there.
The majority states that
the fact that their conversation took place so late is
relevant because only governmental agents would have had
access to defendant at that time of night.
However, that
this conversation took place several hours before or after
normal visiting hours does not transform this private
conversation into state action. That the police officer in
Barna only had access to a police-issued night stick
because he was a police officer, did not make his use of
10
Apparently,
admitting
the
majority
defendant’s
would
statement
have
to
no
problem
Heintzelman
if
Heintzelman had first gone home, changed his clothes, and
come
back
the
next
morning
to
speak
with
defendant.
However, in my judgment, it is difficult to comprehend the
significance
the
majority
gives
these
factors
in
determining whether a jury will or will not have access to
defendant's statement.
IV. CONCLUSION
The majority has concluded that someone who happens to
have
volunteered
as
a
part-time,
reserve
police
officer
cannot ask a friend about a crime with which he has been
charged without running afoul of the Sixth Amendment.16
As
a result, a clearly incriminating statement made about a
brutal
murder—a
statement
made
voluntarily
and
fully
in
this night stick in a fight state action, just as the fact
that the officer in Bonsignore only had access to a policeissued revolver because he was a police officer did not
make his use of this revolver to shoot his wife state
action.
16
The majority rejects this characterization of its
holding, and replies that it is merely concluding that a
part-time, reserve police officer can never ask a friend
about a crime only while acting as a state actor.
Of
course, such a reply is a mere tautology since the very
issue before this Court is whether Heintzelman was a state
actor.
The majority's references to Edwards and Bradshaw
are similarly circular.
To repeat, under the majority's
analysis, a part-time, reserve police officer would not be
able to ask a friend about a crime with which he has been
charged without running afoul of the Sixth Amendment.
11
compliance with the requirements of Miranda v Arizona17—is
to be excluded from the justice system.
And defendant's
jury of peers—tasked with carrying out one of the gravest
responsibilities of citizens in a democracy, determining
the truth of a criminal charge—will be required to carry
out
this
responsibility
compelling
piece
of
while
evidence,
being
freely
deprived
given
of
words
a
from
defendant's own mouth.
When all the facts are considered, it is clear that
Heintzelman
spoke
to
defendant
as
a
friend,
not
as
a
governmental actor and, thus, Heintzelman could not have
violated
defendant’s
Sixth
Amendment
right
to
counsel.
Therefore, I would affirm the judgment of the Court of
Appeals.
Stephen J. Markman
Elizabeth A. Weaver
17
By stating that there was no Miranda violation, I am
not implying that compliance with Miranda was required.
Indeed, for the same reason that I conclude that
defendant’s Sixth Amendment right to counsel was not
violated—there was simply no state action—I would also
conclude that his Fifth Amendment right was not violated.
The reference to Miranda is simply to underscore the utter
lack of coercion surrounding the statement that the
majority is suppressing.
12
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