People v. Taylor

Black, J.

(concurring in reversal). I agree with Chief Justice Brennan’s analysis of McCarthy v. United States (1969), 394 US 459 (89 S Ct 1166, 22 L Ed 2d 418) and particularly with his view that it imposes no more than a new requirement, drawn from Federal Rule 11, which thus far applies only to criminal procedure in the courts of the Federal system. That view was strengthened when Halliday v. United States (1969), 394 US 831 (89 S Ct 1498, 23 L Ed 2d 16) was handed down last May.

I agree further that the sentencing judge did not err in accepting this defendant’s plea of guilt. In this last regard, our recent decisions of People v. Hobdy (1968), 380 Mich 686, People v. Dunn (1968), 380 Mich 693, People v. Stearns (1968), 380 Mich 704, and People v. Winegar (1968), 380 Mich 719, all released May 8, 1968, settle the validity of the defendant’s plea and Judge Dalton’s acceptance thereof unless, as argued, intervening Boykin v. Alabama (1969), 395 US 238 (89 S Ct 1709, 23 L Ed 2d 274) handed down since this case was submitted, applies nunc pro tunc to defendant Taylor’s prosecution and conviction in 1965. Judge Dalton did not, of course, interrogate the defendant as in Boykin newly specified. Boykin was unknown and not exactly prevised at that time.

There can be no doubt that Boykin has imposed upon state court trial judges additional duties as those judges go about the task of arraignment and sentencing, certainly in all cases of prosecution for *369felony.1 The question here is whether Boykin applies retroactively so as to invalidate Mr. Taylor’s plea and the action taken by the sentencing judge on strength of that plea. If Boykin does apply, we should affirm the judgment of the Court of Appeals (9 Mich App 333). Otherwise reversal is in order. I hold that Boykin does not apply and therefore vote to reverse.

In 1965 the Supreme Court of California faced this same question of prospective or retrospective application of the rules of two then recent decisions, Massiah v. United States (1964), 377 US 201 (84 S Ct 1199, 12 L Ed 2d 246) and Escobedo v. Illinois (1964), 378 US 478 (84 S Ct 1758, 12 L Ed 2d 977). The occasion was the consideration and handing down of People v. Dorado (1965), 62 Cal 2d 338 (42 Cal Rptr 169, 398 P2d 361), shortly before Linkletter v. Walker (June 7, 1965), 381 US 618 (85 S Ct 1731, 14 L Ed 2d 601), was released. At that time the so-called Blaekstonian theory held general sway, that is to say, the former and currently overruled decision was not regarded as bad law, but “never was the law.”2

In Dorado the trouble was that no one anticipated, or could be expected to anticipate, that the Supreme Court would decide two years after Escobedo that the rule thereof “is to be applied prospectively.” That was done however by Johnson v. New Jersey (June 20, 1966), 384 US 719 (86 S Ct 1772, 16 L Ed 2d 882). The California Supreme Court accordingly went ahead in Dorado with retroactive appli*370cation of Escobedo, only to be let down when the Supreme Court belatedly ruled as in the Johnson case.

This vex of criminal justice in California was highlighted by Professor Phillip Johnson’s resume appearing in volume 56 of California Law Review, starting at 1612. That resume is headed “The Supreme Court of California 1967-1969” and carries the foreword “Retroactivity in Retrospect.” Starting on page 1620, under “The Miranda Warnings,” Professor Johnson proceeded:

“The decision in Tehan v. Shott ([January 19, 1966], 382_US 406 [86 S Ct 459, 19 L Ed 2d 453]) seemed to indicate that the California supreme court was on the right track in interpreting the United States Supreme Court’s attitude toward retroactivity. At the end of the same term of court, however, the Supreme Court gave the California courts, in particular, and the legal profession, in general, a rude shock by holding in Johnson v. New Jersey (supra) that the rules for confessions it had-just announced in Miranda v. Arizona ([June 13, 1966], 384 US 436 [86 S Ct 1602, 16 L Ed 2d 694, 10 ALR 3d 974]) need not be applied to cases in which the trial began before the date of the decision.”

Then, on page 1622, the resume proceeds, under “The Johnson Quandary”:

“The California supreme court was left in an unenviable position when it considered the effect of the Johnson decision in People v. Rollins.3 It had decided the Dorado case as it had, not because it had independently arrived at the conclusion that the Constitution compelled the result, but because it felt constrained by the necessary implications of the Escobedo opinion. In justifying the Dorado holding, the Court had stated that it was in the interests of *371California law enforcement officers to be informed of the full sweep of the Escobedo decision sooner rather than later, for in any event cases involving confessions obtained without the required warnings would be reversed by the United States Supreme Court.

“Having thus faithfully discharged its duty to apply the Constitution as apparently interpreted by the United States Supreme Court, the California court found that it had unnecessarily reversed dozens of convictions in which the trials had occurred before the date of the Miranda decision. It was now faced with the perplexing problem of what to do with the cases tried before Miranda that were still before it on direct review. If it stayed with the final-judgment rule that it had adopted in the Lopez case (In re Lopez [1965], 62 Cal 2d 368 [398 P2d 380, 42 Cal Rptr 188]) and applied the Miranda rules to all cases pending on direct review, as the Supreme Court had invited the state courts to do if they chose, it would be forced to reverse many more cases in which confessions had been obtained in full compliance with its own Dorado decision. It could have refused to apply either the Miranda or the Dorado decisions to cases on direct review, but to do so would make its prior reversals under the Dorado decision seem like the height of folly, and current affirmances the height of inequity.”

Warned now as the California Supreme Court was not warned for Dorado, I would adopt for these continuing questions of retroactive or prospective applicability a presumption that, where the Supreme Court does not speak forth promptly (as it did in Roberts v. Russell [June 10, 1968], 392 US 293 [88 S Ct 1921, 20 L Ed 2d 1100] for Bruton v. United States [May 20,1968], 391 US 123 [88 S Ct 1620, 20 L Ed 2d 476]), then that Court intends that each Boykin-like decision shall apply prospectively, along with application thereof to the case at hand. We did *372so with good fortune when People v. Woods (1969), 382 Mich 128, presented another question of retroactivity arising under Miranda.

Viewing Boykin, the courts of some other states have already done as I would now do. See State v. Urbano (1969), 105 Ariz 13 (457 P2d 343); State v. Griswold (1969), 105 Ariz 1 (457 P2d 331); Montanye v. State (1969), 7 Md App 627 (256 A2d 706); Silverberg v. Warden, Maryland Penitentiary (1969), 7 Md App 657 (256 A2d 821); Ernst v. State (1969), 43 Wis 2d 661 (170 NW2d 713), and In re Tahl (1969), 1 Cal 3d 122 (460 P2d 449, 81 Cal Rptr 577).

Dethmers, J., concurred with Black, J.

See GCR 1963, 785, and our 1967 order repealing all amendments of that rule (379 Mieh xxx, xxxi).

See T. M. Kavanagh, J. in In Re Palmer (1963), 371 Mich 656, 664, quoting arid following the traditional rule (taken from 7 RCL, Courts, §36, p 1010, published 1915):

“The general principle is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the efieet is not that the former decision is bad law, but that it never was the law.”

For details of the cases reversed in the interval on strength of apparently retroactive Escobedo, see People v. Rollins (February 8, 1967) 65 Cal 2d 681 (56 Cal Rptr 293, 423 P2d 221, 226, 227).