(dissenting). My colleagues’ opinion holds "that the inculpatory statements made to the sheriffs detectives by the defendant after sentencing were taken in violation of defendant’s Const 1963, art 1, § 20 right to counsel.” It further holds that "such statements were inadmissible for impeachment as well as for substantive purposes.” In apparent eagerness to decide that the statements made by the defendant after he pled guilty to second-degree murder and was sentenced to life imprisonment are inadmissible under art 1, § 20 of the Michigan Constitution, my colleagues also decide several issues which, in my opinion, were not adequately briefed, argued, nor addressed below. Because I question the propriety of deciding this case on the basis of Const 1963, art 1, § 20, or the Sixth Amendment of the United States Constitution, and because I believe the holdings of the opinion are inadequately supported by case law and logic, I dissent.
For expediency’s sake, I do not restate the facts of this case. However, to fully understand the posture of this case, some further explanation of the proceeding below is necessary.
Before defendant’s subsequent trial, the prosecutor conceded that defendant’s post-conviction, post-sentencing statements were inadmissible in its case in chief because no Miranda warnings had been given. The arguments at the hearing on defendant’s pretrial motion to suppress the use of these statements for impeachment purposes focused on the voluntariness of the statements in question. Applying the test set forth in Mallory v Hogan, 378 US 1; 84 S Ct 1489; 12 L Ed 2d 653 (1964), the trial court found "that the Defendant *484clearly understood his options and that he freely and voluntarily elected to go with the officers and to describe the events of the charged offense.” Therefore, the trial court ruled that the statements would be admissible to impeach defendant’s trial testimony, if it proved to be inconsistent with those prior statements, under the rule of Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971).
On appeal from defendant’s conviction of second-degree murder, the Court of Appeals was "not left with a definite and firm conviction that the trial judge erred in holding that the statement made by defendant to the police subsequent to his prior sentencing was voluntarily made.” People v Gonyea, 126 Mich App 177, 183; 337 NW2d 325 (1983). In response to defendant’s contention that the trial court erred by allowing his trial testimony to be impeached by his prior inconsistent statement, the Court of Appeals stated:
"It was not disputed that the statement would have been inadmissible as substantive evidence because it was obtained in violation of the rules stated in Massiah v United States, 377 US 201; 84 S Ct 1199; 12 L Ed 2d 246 (1964), and Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966). However, violation of the Miranda rule does not prevent use of defendant’s statement for impeachment purposes provided the statement was not coerced or involuntary. Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971); Oregon v Hass, 420 US 714; 95 S Ct 1215; 43 L Ed 2d 570 (1975); Mincey v Arizona, 437 US 385; 98 S Ct 2408; 57 L Ed 2d 290 (1978). Similar use is permitted of statements obtained in violation of the Massiah rule. United States v Frank, 520 F2d 1287, 1291 (CA 2, 1975); United States v Taxe, 540 F2d 961, 968-969 (CA 9, 1976), cert den 429 US 1040 (1977); United States v McManaman, 606 F2d 919, 924-925 (CA 10, 1979).
*485"We find the trial court properly allowed the use of the statements here for impeachment purposes although they could not have been used in the prosecutor’s case in chief. That a defendant should not be permitted to perjure himself and then insulate his false statements behind an exclusionary rule should apply equally to a Sixth Amendment violation.” Gonyea, supra, pp 180-181, 184.
Defendant’s primary argument on appeal to this Court is that his statements were involuntary, and therefore inadmissible for any purpose. People v Reed, 393 Mich 342; 224 NW2d 867 (1975), cert den 422 US 1044. In response, the prosecutor asks that we affirm the trial court’s determination of voluntariness, and apply the reasoning of Harris v New York, supra, so as to allow the use of defendant’s statements for impeachment purposes. The state does not argue that defendant’s Sixth Amendment right to counsel under Massiah v United States, 377 US 201; 84 S Ct 1199; 12 L Ed 2d 246 (1964), was not violated. Rather, it contends that, assuming, arguendo, that Massiah was violated, defendant’s statements may nevertheless be used to impeach his trial testimony.
In reaching the conclusion that defendant’s prior inconsistent statements were inadmissible for any purpose, my colleagues decide that the Const 1963, art 1, § 20 right to counsel extends to the post-conviction, post-sentencing questioning of defendant by the police, and that defendant did not waive this right. Thus, a considerable portion of my colleagues’ opinion is devoted to deciding issues which the parties do not apparently dispute and upon which the courts below did not rule.1
*486My colleagues purport to rely solely upon the Michigan Constitution in rendering their decision. The opinion states:
"Since Const 1963, art 1, § 20 provides an adequate state ground for our decision, we find it unnecessary to address the issues before us under the United States Constitution. Although we do not reach the federal question, we will, however, look to cases construing the Sixth Amendment. Inasmuch as Const 1963, art 1, § 20 and the Sixth Amendment are identical in language insofar as the right to counsel is concerned, a review of relevant federal cases can guide us in interpreting our constitution.”
Despite this purported state constitutional basis, the opinion of my colleagues relies almost exclusively on federal case law. Moreover, as my colleagues note, the federal and state constitutional right to counsel provisions are phrased in identical language. Because I view my colleagues’ "adequate state ground” analysis as a pretext for evading review by the United States Supreme Court, under the jurisdictional standard set forth in Michigan v Long, 463 US 1032; 103 S Ct 3469; 77 L Ed 2d 1201 (1983), I reject that analysis.
In one brief paragraph, the opinion holds that the Sixth Amendment, art 1, § 20 right to counsel extends to the post-conviction, post-sentencing questioning of the defendant by the police. In support of this holding, the opinion cites the deci*487sion of a single federal trial court, Cahill v Rushen, 501 F Supp 1219 (ED Cal, 1980), aff’d 678 F2d 791 (CA 9, 1982). My colleagues’ opinion concludes that:
"[I]f the right to counsel is to remain appropriately meaningful, the right must extend until the appeal is final. An attorney’s advisory role does not end at sentencing. See Cahill v Rushen, 678 F2d 794-795; Cahill v Rushen, 501 F Supp 1223. This is especially true in light of the fact that the appellate process is not the end of a defendant’s prosecution, and may very well be just a new beginning, in that frequently trial errors result in the ordering of new trials on appeal. See Cahill v Rushen, 678 F2d 794-795; Cahill v Rushen, 501 F Supp 1223. Thus we hold that the defendant here did have the right to counsel after sentencing when he was with the detectives.”
A review of federal case law reveals that no other federal court, including the United States Supreme Court, has ever held that the Sixth Amendment right to counsel extends to a fact situation like the one before us. In Cahill, supra, the defendant, on the day after he was convicted of first-degree murder and sentenced, confessed to the murder for which he had been convicted. No Miranda warnings were given, and the interrogating officer did not inform the defendant’s attorney that the questioning was to take place. Cahill’s first conviction was reversed on appeal and, at the retrial, the officer to whom Cahill had confessed testified regarding the confession. Cahill was again convicted, and he subsequently filed a habeas corpus petition, contending that the confession was inadmissible because it was obtained in violation of his Sixth Amendment right to counsel.
The Ninth Circuit majority in Cahill held that the Sixth Amendment applied to the post-convic*488tion, post-sentencing interview that was conducted in that case. Dissenting Judge Wallace, however, strongly disagreed with this holding:
"The sixth amendment. . . has absolutely no application to events such as these that take place outside of the courtroom subsequent to sentencing. The majority has extended both the Massiah doctrine and the sixth amendment away from their textual and historical roots to a situation in which neither has ever been applied before. As I read its opinion, the majority does so without a single persuasive word of justification for such a radical extension. The sixth amendment simply was not meant to and does not apply to the confrontation in this case; Cahill’s constitutional protection derives from the fifth amendment and the concomitant procedural safeguards of Miranda.” Cahill, supra, p 796.
Judge Wallace concluded "that such a post-trial confrontation between a convicted defendant and the authorities is not a 'critical stage’ of the prosecution in which the presence of counsel is necessary to ensure the fairness of the trial itself’ and, therefore, "refuse[d] to extend Massiah to these facts.” Cahill, supra, p 799.
I do not attempt to resolve this issue now. I only observe that any constitutional issue with such apparently strong opposing arguments should not be decided on the basis of a single federal decision, with no discussion of competing views, and without the benefit of any briefing or plenary consideration by the courts below.
Similar concerns are raised by my colleagues’ discussion of whether defendant waived his right to counsel. Despite the fact that neither the trial court nor the Court of Appeals even considered this issue, my colleagues would hold that defendant did not "intentionally and intelligently” waive his art 1, § 20 right to counsel. The state *489does not contend, nor did it attempt to prove in the trial court, that defendant waived his Sixth Amendment right to counsel. Therefore, I seriously question the propriety of deciding the waiver issue on the record before us.
In its final holding, my colleagues’ opinion concludes that the rationale of Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971), in which the Court held that statements obtained in violation of Miranda could be used to impeach the defendant, although they were not admissible as direct evidence of defendant’s guilt, does not extend to a Sixth Amendment, art 1, § 20 violation. My colleagues would hold that Harris is distinguishable on two grounds:
"First, Harris involved Fifth Amendment rights, not art 1, §20/Sixth Amendment rights as we are faced with here. Secondly, we note that Harris is factually inapposite. The Harris police misconduct was not nearly as flagrant as is present in this case.”
While recognizing that Harris "involves a balancing of the incremental deterrence of police illegality against the strong policy against countenancing perjury,” my colleagues "think that the violation of the defendant’s right to counsel by the detectives was so egregious that it tips the scale against admissibility of the evidence.” In light of the "particularly lofty status” that the right to counsel enjoys, my colleagues determine that "[t]o permit law enforcement officers to obtain statements from the defendant in violation of his right to counsel, and to use those statements to attack the defendant and his case, would be to permit an attack on the very foundation of our criminal justice system.” Therefore, they "conclude that whether based on a balancing approach or not, any inculpa*490tory statements extracted from a defendant in violation of his Const 1963, art 1, § 20 right to counsel are inadmissible for both substantive and impeachment purposes.”
The United States Supreme Court has held, in a variety of factual circumstances, that unconstitutionally obtained evidence is admissible to impeach statements made by the defendant in his trial testimony. Most recently, in United States v Havens, 446 US 620; 64 L Ed 2d 559; 100 S Ct 1912 (1980), the Court summarized this line of cases:
"In Walder v United States [347 US 62; 74 S Ct 354; 98 L Ed 503 (1954)] the use of evidence obtained in an illegal search and inadmissible in the Government’s case in chief was admitted to impeach the direct testimony of the defendant. This Court approved, saying that it would pervert the rule of Weeks v United States, 232 US 383 [34 S Ct 341; 58 L Ed 652] (1914), to hold otherwise. Similarly, in Harris v New York, 401 US 222 [91 S Ct 643; 28 L Ed 2d 1] (1971), and Oregon v Hass, 420 US 714 [95 S Ct 1215; 43 L Ed 2d 570] (1975), statements taken in violation of Miranda v Arizona, 384 US 436 [86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974] (1966), and unusable by the prosecution as part of its own case, were held admissible to impeach statements made by the defendant in the course of his direct testimony. Harris also made clear that the permitted impeachment by otherwise inadmissible evidence is not limited to collateral matters. 401 US, at 225.” Havens, supra, 446 US 624.
The rationale of these cases is based on "the notion that the defendant’s constitutional shield against having illegally seized evidence used against him” should not be " 'perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.’ ” Havens, supra, p 626 (quoting Harris, supra). The Court has also reasoned that *491"the deterrent function of the rules excluding unconstitutionally obtained evidence is sufficiently served by denying its use to the government on its direct case.” Havens, supra, p 626.
As the Court of Appeals noted, at least three federal circuit courts have held that statements obtained in violation of the Sixth Amendment right to counsel can be used for impeachment. United States v Frank, 520 F2d 1287, 1291 (CA 2, 1975), cert den 423 US 1087 (1976); United States v Taxe, 540 F2d 961, 968-969 (CA 9, 1976), cert den 429 US 1040 (1977); United States v McManaman, 606 F2d 919, 924-925 (CA 10, 1979).
We applied Harris in People v Graham, 386 Mich 452, 456; 192 NW2d 255 (1971), a case involving a Fifth Amendment violation. Similarly, in People v Esters, 417 Mich 34; 331 NW2d 211 (1982), a majority of this Court agreed that the defendant’s voluntary statements, obtained in violation of Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981), were admissible, as a matter of federal constitutional law, for impeachment purposes.2 However, in People v Reed, 393 Mich 342, 355; 224 NW2d 867 (1975), cert den 422 US 1044, we held that "[i]nvoluntary confessions . . . may never be used, both because the police broke the law but more importantly because an involuntary confession is always of questionable 'trustworthiness.’ ” See also Mincey v Arizona, 437 US 385; 98 S Ct 2408; 57 L Ed 2d 290 (1978).
*492In spite of the consistency with which the Harris rule has been applied, both by the federal courts and by this Court, my colleagues find it inapplicable to a Sixth Amendment, art 1, § 20 violation. In so doing, they attempt to distinguish Harris on the basis of the nature of the "police misconduct” in this particular case. After finding that the detectives’ behavior in this case was more egregious than that in Harris, they apparently adopt a per se rule that "any inculpatory statements extracted from a defendant in violation of his Const 1963, art 1, § 20 right to counsel are inadmissible for both substantive and impeachment purposes.”
I find this reasoning most unpersuasive. First, I fail to see how the nature of the police conduct in this case supports a per se rule against the admissibility of statements obtained in violation of a defendant’s right to counsel. Second, under the balancing of interests undertaken in the Harris line of cases, the relevant inquiry is not the nature of the police behavior, but rather whether the policy against allowing a defendant to freely perjure himself at trial outweighs the incremental deterrent value against police illegality which a rule precluding the impeachment use of illegally obtained evidence would afford.
My colleagues also reason that "the particular importance of the right to counsel” precludes the use of statements taken in violation of that right "to attack the defendant and his case.” This reasoning is faulty in several respects. Since we are concerned here only with the constitutionality of admitting a prior statement to impeach the defendant’s contradictory testimony at trial, an extension of Harris to this case would not permit the state "to attack the defendant and his case,” but would merely aid the truth-finding goal of the trial. Moreover, while it is certainly true that any transgression of the right to counsel should not be *493condoned nor tolerated, I fail to see any viable distinction, pertaining to the use of prior inconsistent statements for impeachment, between the Sixth Amendment right to counsel and the other constitutional rights to which the Harris rule has been applied. My colleagues rely on New Jersey v Portash, 440 US 450; 99 S Ct 1292; 59 L Ed 2d 501 (1979), but that case is clearly distinguishable because it involved an involuntary statement.
I would hold that, assuming, but certainly without for a moment conceding, there was a Sixth Amendment, art 1, § 20 violation in this case, defendant’s prior statements are nevertheless admissible to impeach his contradictory testimony at trial, provided they were voluntary.
The Court of Appeals affirmed the trial court’s determination that defendant’s statement was voluntarily made. Gonyea, supra, p 183. After having carefully considered defendant’s argument that his statement was involuntary, and reviewing the evidence and case law in support thereof, I "do not possess a definite and firm conviction that a mistake was committed by the trial judge in his ruling.” People v McGillen #1, 392 Mich 251, 257; 220 NW2d 677 (1974). Therefore, I would affirm the Court of Appeals decision on this issue.3
Brickley and Boyle, JJ., concurred with Ryan, J,_In addressing the defendant’s Sixth Amendment claim, the Court of Appeals stated:
*486" Although the issue has not been decided by a Michigan court or by the United States Supreme Court, we find a defendant’s Sixth Amendment right to counsel is applicable to post-trial statements when appeal is not final. See Cahill v Rushen, 501 F Supp 1219 (ED Cal, 1980).” People v Gonyea, 126 Mich App 177, 183; 337 NW2d 325 (1983).
This portion of the Court of Appeals decision, however, was clearly not necessary to its holding that the defendant’s statements were properly admitted for impeachment purposes and, aside from being a mere dictum, is, for the reasons stated hereafter, most unpersuasive.
Justice Coleman, joined by Chief Justice Fitzgerald, held that the Harris rule extended to an Edwards violation under the federal constitution. Justices Levin, Kavanagh, and Ryan agreed with this holding. However, Justices Kavanagh and Levin would, on Michigan constitutional grounds, reverse the conviction and join in the conclusions of Justice Williams’ opinion on that issue. Justice Williams’ opinion would hold that the Harris rule does not extend, under the federal constitution, to statements obtained in violation of Edwards. Justice Riley did not participate. Thus, the judgment of the Court of Appeals affirming the defendant’s conviction was affirmed by an equal division of the Court.
In making this determination, I stress that the question whether a statement is voluntarily made is a separate inquiry from whether Miranda or defendant’s Sixth Amendment right to counsel was violated. While it is certainly true, as defendant contends, that the United States Supreme Court has held that the fact "that a defendant was not advised of his [Miranda rights] is a significant factor in considering the voluntariness of statements later made,” Davis v North Carolina, 384 US 737, 740; 86 S Ct 1761; 16 L Ed 2d 895 (1966), it follows therefrom that noncompliance with Miranda does not alone conclusively prove that a statement of confession is involuntary. Similarly, the fact that an incriminating statement was obtained in violation of a defendant’s Sixth Amendment right to counsel does not necessarily mean that it was involuntary. Inadmissibility and involuntariness are not synonymous.