People v. Green

Coleman, C.J.

(to affirm). The defendant appeals his conviction of first-degree murder. The question presented is whether voluntary statements made by the defendant to a detective and an assistant prosecuting attorney after knowingly and understandingly waiving his right to an attorney and his right to remain silent must nonetheless be suppressed if the assistant prosecuting attorney violated Disciplinary Rule 7-104(A)(l) of the legal profession’s Code of Professional Responsibility, which states:

"During the course of his representation of a client a lawyer shall not:
"(1) Communicate or cause another to communicate *283on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law tp do so.”

The Court of Appeals ruled, one judge dissenting, that an ethics violation alone does not warrant or require the suppression of voluntary statements. 74 Mich App 351; 253 NW2d 763 (1977).

We affirm.

I

On October 19, 1974 at approximately 8:30 p.m., the victim left her home and drove to a nearby market to purchase some milk. She took her six-month-old child with her. Patrons of the market and a cashier saw her in the market with her child just before closing at approximately 8:45 p.m. Her husband awoke from a nap at approximately 11:45 p.m. and became worried when he discovered that she was not yet home. He telephoned a relative and together they began looking for her. At approximately 12:30 a.m., they found her car in the market parking lot with the keys in it and the child asleep on the front seat. After a futile search of the surrounding area, they drove the car home and telephoned the police.

The victim’s whereabouts remained unknown until the late afternoon of October 21 when some hunters found her body floating in a nearby river. An autopsy performed the next day revealed that she had been stabbed once in the back and once in the chest. The chest wound was near the sternum. It penetrated through some soft tissue between the fourth and fifth ribs and continued through the front and back walls of the victim’s heart. The back wound penetrated through both walls of the *284victim’s left lung. The cause of death was shock and hemorrhaging.

On October 23 a citizen spoke to the police and implicated the defendant in the murder. A police officer visited the man at his home and, while the officer listened on an extension, the man telephoned the defendant and expressed concern about the possibility of fingerprints or other incriminating evidence. The defendant said not to worry about these things.

On October 24 the police arrested the defendant and booked him for murder. The detective in charge of the case then drove the defendant to the area where the victim’s body had been found and advised the defendant of his Miranda1 rights by reading from a card that said:

"You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have a right to talk to a lawyer before answering any questions and you have the right to have a lawyer present with you while you are answering these questions. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questions if you wish one. You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.”2

On the back of the card were these questions:

"Do you understand each of these rights I have explained to you? Do you want to talk to a lawyer before any questions? Will you waive your right to *285remain silent and answer any questions we may ask you?”3

The defendant indicated that he understood his rights and would waive them. He then denied having any knowledge of the murder.

On October 28 the defendant sent a message to the detective asking to speak with him. The defendant complained that the guards at the jail were harassing him. That afternoon the detective visited the defendant at the jail. After hearing his Miranda rights and again waiving them, the defendant proffered a statement concerning his supposed whereabouts on the night of the crime and again denied having any knowledge of the murder. At the end of this discussion the detective asked the defendant if he was telling the truth and the defendant said that he was.

On October 31 counsel was appointed to represent the defendant.

On November 19 the man who originally implicated the defendant in the murder testified against the defendant at the preliminary examination. He had been the defendant’s homosexual lover until the day of the arrest.

According to this witness, the defendant arrived at the home of a mutual acquaintance between 9 p.m. and 10 p.m. on October 19, 1974. At approximately 11 p.m. they all decided to go to a party in Detroit. As they entered the defendant’s car, the defendant asked the acquaintance to hand him the coat lying on the back seat because "there’s something in there that probably would be dangerous to him”. After they returned from Detroit, the acquaintance was taken home. The defendant then said that he had something to tell the witness and *286that the witness could not tell anyone else about it. The defendant reached underneath the front seat of his car, pulled out a large knife and said that he "had just killed his old lady”. When the witness expressed disbelief, the defendant said, "I’m serious” and proceeded to detail the circumstances of the crime. He said he stabbed her in the chest and "it went in easy”. (To illustrate the location of the wound, he put the point of the knife on the chest of the witness near the witness’s sternum.) He also said he left her keys and her sleeping child in her car and had dumped her body in the water near the area where the body eventually was found. When the witness continued to express disbelief, the defendant pointed to what he said was a bloodstain on the knife.

Shortly after this conversation, at approximately 4 a.m. on October 20, the defendant and the witness entered another car with some friends who were taking one of the passengers home. On the way to that residence, the defendant asked the driver to take a slight detour. The detour led past the market where the victim’s car had been found. The defendant said that he wanted to "check out something”. As they drove past the market, the defendant said, "It’s gone.”

Primarily on the basis of this testimony, the defendant was bound over for trial on an open charge of murder.

Sometime during the middle of November, the defendant again sent word to the detective, asking to speak with him. The detective and the assistant prosecuting attorney assigned to the case visited the defendant at the jail. However, when the detective advised the defendant of his Miranda rights, the defendant indicated that he wanted to speak with his attorney before talking further *287about the case. The discussion ceased immediately at that point.

Near the end of January, 1975, the defendant again sent word to the authorities expressing a desire to talk.4 On January 29 the detective and the assistant prosecuting attorney spoke with each other and then visited the defendant at the jail.5 They did not communicate with the defendant’s attorney. The detective advised the defendant of his Miranda rights. The defendant waived his rights and said that he wanted to talk to the authorities without his attorney present.6 The detective asked about the murder and the defendant proceeded to tell an exculpatory story about driving to a store on the night of the crime to purchase some wine and meeting a man who revealed a large knife and said something about "killing *288this bitch”. The defendant said he gave this man a ride to a bar and later discovered that the man had managed to slip the knife underneath the defendant’s coat in the back seat of the defendant’s car. The defendant said he threw the knife in some bushes next to a restaurant parking lot in Detroit. He refused to identify the man. At the end of this story, the assistant prosecuting attorney, who, up to that point, had only been taking notes, asked the defendant if he was telling the whole truth. The defendant said that he was.

Prior to trial an evidentiary hearing was held to determine the admissibility of the defendant’s statements. After testimony was taken, defense counsel objected to the admission of the January 29 statements on the ground that the defendant had not been advised prior to making the statements that the penalty for first-degree murder was mandatory life. In passing, defense counsel added:

"I just think for an assistant prosecuting attorney and Detective Blum to interrogate Ernest Green and not advise him of that or even volunteer to invite me to the jail, I don’t think that the admissions made on January 29, 1975 should be admissible.”7

The trial judge overruled the objection and the statements were ultimately admitted into evidence at trial.

The jury convicted the defendant of first-degree premeditated murder.

II

On appeal the defendant has not argued that his *289statements were involuntary or that the authorities failed to comply with the Miranda requirements. Instead he contends that the statements should have been suppressed because the assistant prosecuting attorney violated DR 7-104(A)(l). Alternatively he contends that the statements should have been suppressed because the assistant prosecuting attorney’s conduct was so fundamentally unfair and shocking to the sensibilities of reasonable persons that it violated general notions of due process of law.

The state responds that there was no violation of DR 7-104(A)(l) in this case because the defendant initiated the January 29 discussion, waived his right to counsel and indicated that he wanted to •talk to the authorities without his attorney present. Further, the state argues that the assistant prosecuting attorney played only a minor role in the discussion, listening to the defendant and taking notes, and that there was no overreaching of any kind. Alternatively the state contends that the exclusionary rule does not apply to violations of the Code of Professional Responsibility. The proper action is disciplinary proceedings against the offending attorney. Finally, the state argues that if the admission of the defendant’s statements at trial was error, it was harmless.

Ill

The threshold question is whether the assistant prosecuting attorney violated DR 7-104(A)(l).

The Court of Appeals unanimously concluded that the assistant prosecuting attorney had acted improperly.

The state has conceded in its brief that prosecuting attorneys are not exempt from the strictures of *290DR 7-104(A)(l).8 The state argues, however, that no violation of DR 7-104(A)(l) occurred in this case because of the defendant’s intention to speak with the authorities without his attorney present and because of the lack of overreaching by the assistant. prosecuting attorney.

The argument that the defendant’s request to speak out of the presence of his attorney obviates the necessity of notifying the defendant’s attorney and obtaining his or her consent is contrary to opinions by both the American Bar Association and Michigan State Bar Association Committees on Professional Ethics.

In ABA Formal Opinion 108 issued in 1934, the Committee was asked to interpret the forerunner of DR 7-104(A)(l), old Canon 9, which stated:

"A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law.”

The question before the committee was whether the plaintiffs attorney in a civil case could ethically interview the defendant in the absence of the defendant’s attorney if the defendant was willing to discuss the case. The committee unanimously answered in the negative and, after quoting Canon 9, stated:

"The reasons for such a prohibition are equally clear. *291They arise out of the nature of the relation of attorney and client and are equally imperative in the right and interest of the adverse party and of his attorney. To preserve the proper functioning of the legal profession as well as to shield the adverse party from improper approaches the Canon is wise and beneficent and\ should be obeyed.”9

In Michigan State Bar Opinion 202, issued in 1965 and approved by the State Bar Board of Commissioners in 1966, the committee was faced with the question whether Canon 9 prohibited a prosecuting attorney from interviewing a criminal defendant without first obtaining the consent of the defendant’s attorney even if the defendant requested the interview without informing his or her attorney. The committee unanimously answered in the negative.10

The quotation from ABA Formal Opinion 108 set forth above indicates that there is more to this ethical prohibition than just the prevention of overreaching. The rights and interests of the adverse party’s attorney and the proper functioning of the legal system are involved as well.

Ethical Consideration 7-18, adopted by the American Bar Association in 1975, emphasizes the importance of this ethical prohibition to the functioning of the legal system:

"The legal system in its broadest sense functions best when persons in need of legal advice or assistance are represented by their own counsel. For this reason a lawyer should not communicate on the subject matter of the representation of his client with a person he knows to be represented in the matter by a lawyer, unless pursuant to law or rule of court or unless he has *292the consent of the lawyer for that person.”11 (Footnote omitted.)

Other authorities have not exempted prosecuting attorneys from the strictures of DR 7-104(A)(l) in fact situations where the defendant requested an interview or was willing to speak and where there was no overreaching.12

The language of DR 7-104(A)(l) is clear and contains only two exceptions. It says "a lawyer shall not * * * communicate * * * with a party he knows to be represented by a lawyer * * * unless he has the prior consent of the lawyer representing [that] party or is authorized by law to do so”. (Emphasis added.)

The state has not presented any reasons for a distinction between civil and criminal cases based on the defendant’s willingness to speak and the lack of overreaching. Nor has the state addressed the concerns in addition to the prevention of overreaching expressed in the ethics opinions noted above.

We hold that while this defendant’s initiative and willingness to speak and the lack of overreaching by the assistant prosecuting attorney are factors to be considered in mitigation, they do not excuse compliance with the standard of professional conduct prescribed by DR 7-104(A)(l).

IV

Our resolution of the question above brings us to *293the principal dispute in this appeal — whether the voluntary statements made by the defendant after knowingly and understandingly waiving his Miranda rights must nonetheless be suppressed solely because the assistant prosecuting attorney violated DR 7-104(A)(l).

The Court of Appeals majority held that an ethics violation standing alone does not warrant or require the suppression of evidence.

The defendant has argued that the violation of DR 7-104(A)(l) was a violation of his rights and that unless his statments are suppressed, he will have no effective remedy to redress the wrong done to him.

This argument rests upon a basic misconception of the Code of Professional Responsibility. The provisions of the code are not constitutional or statutory rights guaranteed to individual persons. They are instead self-imposed internal regulations prescribing the standards of conduct for members of the bar.13 Although it is true that the principal purpose of many provisions is the protection of the public, the remedy for a violation has traditionally been internal bar disciplinary action against the offending attorney. The sanctions available are by no means trivial. The attorney faces permanent disbarment. In these respects the provisions of the code are no different from the provisions found in the codes of conduct for other professions, such as medicine or architecture. They are all self-governing, in-house regulations.

The admissibility of evidence in a court of law, on the other hand, is normally determined by *294reference to relevant constitutional and statutory provisions, applicable court rules and pertinent common-law doctrines. Codes of professional conduct play no part in such decisions.

New courts have mixed the standard of conduct found in DR 7-104(A)(1) or any other provision of a code of professional responsibility into questions concerning the admissibility of evidence in criminal or civil cases. Even the courts which have embraced this novel concept have linked their decisions to do so with constitutional doctrines or statutory provisions not recognized or present in Michigan’s jurisprudence. See, for example, People v Hobson, 39 NY2d 479; 348 NE2d 894; 384 NYS2d 419 (1976).

The defendant also has argued that if his statements are not suppressed this Court would in effect give its stamp of approval to unethical conduct. As this opinion clearly indicates in part III above, such a conclusion is unsupported. To the contrary, part III reflects a commitment by the Court to insure that future violations do not occur.

The facts in the case at bar provide a good example why a violation of DR 7-104(A)(l) standing alone should be dealt with by bar disciplinary action rather than by withholding relevant and material evidence from the jury.

The defendant had a story he wanted to tell to the authorities, presumably to clear himself of the murder charge lodged against him. He sent word to the authorities and asked to speak with them. He waived his Miranda rights with full knowledge of what he was doing. He specifically stated that he wanted to talk without his attorney present. The assistant prosecuting attorney and the detective did little except listen to what the defendant had to say and take notes. The defendant’s state*295ments were completely voluntary and there was no overreaching of any kind. When asked if he was telling the whole truth, defendant said that he was.

Reversal of the conviction and grant óf a new trial (if in fact the witnesses and evidence presented in 1975 could be obtained for a second trial) solely because of this less than consequential violation of DR 7-104(A)(l) would constitute reprehensible "overkill”.

In cases such as this, bar disciplinary action directed against the offending attorney would be a more appropriate response and would serve as a more effective deterrent than the indirect sanction of the exclusionary rule. Although the presence of a prosecuting attorney is still one factor to be considered in assessing the "totality of the circumstances” in order to determine whether a defendant’s statements are constitutionally admissible, we find no unconstitutional intrusion in this factual situation.

This resolution makes it unnecessary to consider the state’s argument that if admission of the defendant’s statements at trial was error, it was harmless.

V

The final question is whether the assistant prosecuting attorney’s conduct was so fundamentally unfair and shocking to the sensibilities of reasonable persons that it rises to the level of a violation of due process of law. We find that it does not.

As noted above, the assistant prosecuting attorney’s conduct, although a violation of DR 7-104(A)(1), was relatively innocuous. It pales in comparison to the cases in which a due process *296violation has been found. See, for example, Rochin v California, 342 US 165; 72 S Ct 205; 96 L Ed 183 (1952).

This is not a case in which the authorities used deception or force to extract a confession from an ignorant and helpless defendant. (Compare Brewer v Williams, 430 US 387; 97 S Ct 1232; 51 L Ed 2d 424 [1977], dealing with the right to counsel.) At most they acquiesced in a course of conduct initiated by a defendant who knew precisely what he was doing after they offered him the right to have counsel present and after that right was refused. We do not find this so unfair or so shocking that the defendant’s conviction must be reversed.

We affirm.

Ryan, J., concurred with Coleman, C.J.

Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

Trial transcript, pp 15-16

Id., pp 16-17.

At the Walker hearing before trial the detective testified:

"Q. [by the prosecutor]: Now, did you have occasion to interview him [the defendant] at any time after that?
"A. Yes, on January 29, 1975.
"Q. And where did that take place?
"A. At the Oakland County Jail.
"Q. Who was present?
"A. Yourself, myself and Mr. Green.
”Q. And how did you come to be over there?
"A. Mr. Green had sent word from the jail through one of the deputies that he wished to talk to us.” Trial transcript, p 27.

There is little testimony about the conversation between the detective and the assistant prosecuting attorney. The detective testified at trial:

"Q. [by defense counsel]: Did you and [assistant prosecuting attorney] talk to each other before you interviewed Ernest Green on January 29, 1975?
"A. About what, sir.
”Q. About anything, about the interview?
"A. I presume we did, yes.” Trial transcript, p 423.

At the Walker hearing the detective testified as follows, speaking in response to defense counsel’s questions:

"He [the defendant] waived his rights including the lawyer, he waived, he told us that he wished to discuss this case with us without you.” Trial transcript, p 47.

Trial transcript, p 48.

Appellee’s brief, p 30. See also Michigan State Bar Committee on Professional Ethics Opinion 202, 46 Mich St Bar J, No 5, pp 29-30 (1967).

American Bar Association Opinions of the Committee on Professional Ethics (1967), p 360.

46 Mich St Bar J, No 5, pp 29-30 (1967).

ABA Code of Professional Responsibility (1975), pp 33C-34C.

See, for example, United States v Carlson, 423 F2d 431, 442 (CA 9, 1970), cert den 400 US 847 (1970); United States v Four Star, 428 F2d 1406, 1407 (CA 9, 1970), cert den 400 US 947 (1970); United States v Springer, 460 F2d 1344, 1353-1354 (CA 7, 1972), cert den 409 US 873 (1972); and United States v Thomas, 474 F2d 110, 111-112 (CA 10, 1973), cert den 412 US 932 (1973).

For a recent discussion of the purposes and intended effect of a Code of Professional Responsibility, see Informal Opinion 1420 issued by the American Bar Association Standing Committee on Ethics and Professional Responsibility, June 5, 1978. It appears in the ABA Journal of July 1978. 64 ABA J 1173 (1978).