People v. McRae

Michigan Supreme Court

Lansing, Michigan 48909

Chief Justice Justices

Opinion
Maura D. Corrigan 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 made by defendant to a sheriff’s reserve

deputy violated defendant’s Sixth Amendment 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 reasonable doubt;1 therefore, we reverse the

decision of the Court of Appeals and remand for a new

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. It had been

ten years since defendant had seen 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
465 Mich 874 (2001).
2
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed
2d 694 (1966).
2
officers to do so. Heintzelman was in full uniform,

complete with badge. Although it was some time after

eleven o’clock at night, Heintzelman was allowed to go

directly to defendant’s maximum security cell. 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 then volunteered to go back and talk to

3
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 moved to suppress Heintzelman’s testimony

regarding defendant’s statements because the alleged

statements were obtained in violation of defendant=s right

to counsel and because defendant was not given Miranda

warnings again before questioning. After an evidentiary

hearing, the trial court denied 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 The Court of Appeals did not determine

if there was 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 determined that if the admission of the

statement were error, such error would not be harmless

beyond a reasonable doubt. 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 state-
action 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 sheriff’s reserve deputy. The dispositive

question, then, is whether Heintzelman purported to act

under that authority.

The word “purport” means: “1. to present, esp.

deliberately, the appearance of being; profess or claim

. . . . 2. to convey, express or imply.” 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 638-
639.

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). The record evidence

shows that Heintzelman visited 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 cell. The people conceded at oral

argument that an ordinary citizen would not have been

granted permission under the same circumstances. Thus, it

was only by virtue of his status as a reserve deputy that

Heintzelman was granted direct access to defendant’s

maximum-security cell, a restricted area where only

governmental agents are normally allowed to tread.

Further, this access was granted late at night, a time when

ordinary citizens are prohibited from visiting inmates.9

There is no evidence that Heintzelman sought to

distance himself from his actual or apparent police

authority. 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. During his

9
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. Further,

after he spoke to defendant, Heintzelman contacted the

lieutenant in charge of the investigation, relayed 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 Gaddy, the defendant’s aunt was a police

officer. 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. He agreed and spoke to officials

after waiving his 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 the Sixth Amendment guarantee of the

right to counsel. 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, may not be subject to further

interrogation by the authorities until counsel has been

made available unless the accused initiates further

communication. The initiation of a conversation related to

the investigation, standing alone, is insufficient to

establish a waiver of the previously asserted right to

counsel. We incorporated the Edwards rule in People v

Paintman, 412 Mich 518; 315 NW2d 418 (1982), and the

Edwards rule was extended to Sixth Amendment 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 interrogation required under the Fifth

Amendment. 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). The
12
Court continued: “We have consistently applied the

deliberate-elicitation standard in subsequent Sixth

Amendment cases . . . and we have expressly distinguished

this standard from the Fifth Amendment custodial-

interrogation standard . . . .” Id. 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 generalized discussion relating directly or

indirectly to the investigation.” Id. at 1045. The

dissenting justices would have defined “initiation” even

more narrowly as a communication or dialog about the

subject matter of the investigation. 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 Even

solely reviewing Heintzelman’s testimony regarding his

conversation with defendant, there is no proof evincing a

desire on the part of defendant to pursue a discussion

relating directly or indirectly to the investigation.

Defendant merely initiated a social visit with his old

friend and neighbor. 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 first two questions

regarding the murder. It was only when Heintzelman

continued to press defendant that defendant finally

answered. Because defendant did not demonstrate a desire

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 that Heintzelman was a state actor and

deliberately elicited incriminating statements 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 and clarified in Bradshaw, that protects a

defendant against any subsequent government-initiated

questioning following the exercise of the defendant’s Sixth

Amendment rights. Heintzelman both possessed actual state

authority and 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 or indirectly related to the investigation.

Therefore, defendant’s statements in 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 part-

time, 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. Thus,

there was no governmental action and, 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 any questions without his attorney present.

While defendant was incarcerated awaiting 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. Defendant hung his head and said,

“It was bad, Dean. 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. The trial court denied

defendant’s motion to suppress. 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. STANDARD OF REVIEW

Constitutional issues are reviewed de novo, while

findings of fact are reviewed for clear error. People v

LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). “The

decision whether to admit evidence is within the trial

court's discretion and will not be disturbed absent an

abuse of that discretion.” 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 Sixth

Amendment right to assistance of counsel attaches. Massiah

v United States, 377 US 201, 206; 84 S Ct 1199; 12 L Ed 2d

246 (1964).7 Accordingly, a defendant’s incriminating

statements, deliberately elicited by 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 a right to counsel beyond

custodial interrogations. Fellers v United States, 540 US

___; 124 S Ct 1019; 157 L Ed 2d 1016 (2004).

However, “[c]onstitutional protections apply to

governmental action only . . . .” Grand Rapids v Impens,

414 Mich 667, 673; 327 NW2d 278 (1982). Therefore, one

acting as a private individual, rather than as a

governmental actor, cannot violate an accused’s Sixth

Amendment right to counsel. Further, merely because a

7
“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 that this person is always a

governmental actor. 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 on-

duty police officer’s assault of the plaintiff at a police

station was not state action because it arose out of a

personal dispute and the officer neither arrested nor

threatened to arrest the plaintiff); United States 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 actor, because she was not part of the

investigative team on her nephew’s case, 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 part-
time, 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. Heintzelman was not acting in the normal

course of his duties when he talked with defendant—his

normal duties included transporting prisoners, not

questioning them; Heintzelman's duties as a 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 by defendant himself to speak with him;

Heintzelman was not acting under the direction of 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, Heintzelman did not

purport to act under state authority. Rather, he purported

to do nothing more than act as a friend. He came to see

12
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. Further evidence that Heintzelman was acting

as a friend, not as a police officer, is that when

Heintzelman asked defendant if he was involved 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 that Heintzelman served as a part-time,

reserve police officer, and that when he 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 to be uniformed, does constitutes state action.

That Heintzelman happened to be wearing a uniform when he

spoke with defendant does not transform Heintzelman’s

personal actions into state actions.14 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, the majority would have no problem

admitting defendant’s statement to 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 police-
issued 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 while being deprived of a

compelling piece of evidence, freely given words 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