PEOPLE
v.
ERNEST GREEN
Docket No. 25298.
Michigan Court of Appeals.
Decided March 29, 1977.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Thomas S. Richards, Assistant Prosecuting Attorney, for the people.
Renfrew, Moir, & Burgett, P.C. (by Dennis J. Kuirsky and John E. Stover), for defendant.
Before: J.H. GILLIS, P.J., and M.F. CAVANAGH and D.E. HOLBROOK, JR., JJ.
J.H. GILLIS, P.J.
On October 19, 1974, Phyllis McPhail left her home at approximately 8:30 p.m. to go to the Hilton Market in the City of Pontiac. She took her six-month old son with her. When she failed to return, her husband conducted a search and found the automobile in the market parking lot with the keys in it and the child asleep. The police were called.
Two days later, Phyllis McPhail's body was *354 found floating in the Clinton River approximately one mile from the Hilton Market. Wounds were found in her back and chest.
Defendant was charged with the murder of Phyllis McPhail. A jury trial was commenced on May 12, 1975. On May 19, 1975, the jury returned a verdict of guilty of first-degree murder, MCLA 750.316; MSA 28.548. Defendant appeals as of right raising four issues. Additional facts, where necessary, will be related within the discussion of the issues pertinent thereto.
On October 24, 1974, subsequent to his arrest and after being given the Miranda warnings,[1] defendant was interrogated by a detective from the Pontiac Police Department. The questioning took place near the location where the victim's body was found. Defendant denied having any knowledge of the murder.
On October 28, 1974, defendant was again interrogated by the same detective. Defendant had called the detective to discuss with him alleged harassment by the guards at the jail. Defendant was again given the Miranda warnings and again denied knowledge of the murder; however, defendant did give the detective a detailed account of his whereabouts on the evening of the murder.
On January 29, 1975, subsequent to the preliminary examination, the detective, along with the assistant prosecutor handling the case, interviewed defendant at the jail. This meeting was held pursuant to defendant's request. Defendant's attorney was not informed of this meeting. Defendant was given the Miranda warnings after which he admitted knowledge of the alleged murder weapon and of the fact of a killing, although he denied being the perpetrator of the crime.
*355 The trial judge conducted a Walker[2] hearing and determined that the statements made during the course of the interviews would be admissible at trial. At trial, the statements were admitted into evidence. Defendant's first claim is that the trial judge erred in admitting into evidence the statements made by defendant during the January 29th interview. It is defendant's contention that statements made during an interview in which the prosecutor participated in absence of defense counsel are inadmissible. Although there is a question as to whether the issue has been properly preserved for appeal, we will assume for argument's sake that it has been preserved.
There is no question that but for the presence of the prosecuting attorney, the statements were admissible. People v Moore, 51 Mich. App. 48, 50-51; 214 NW2d 548 (1974), People v Jordan, 34 Mich. App. 360, 367-369; 191 NW2d 58 (1971), lv den, 386 Mich. 776 (1971), cert den, 406 U.S. 908; 92 S. Ct. 1616; 31 L. Ed. 2d 818 (1972).
Disciplinary Rule 7-104 of the Code of Professional Responsibility, Canons and Disciplinary Rules as adopted by the Michigan Supreme Court states:[3]
"(A) During the course of his representation of a client a lawyer shall not:
"(1) Communicate or cause another to communicate on 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 to do so.
"(2) Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the *356 interests of such person are or have a reasonable possibility of being in conflict with the interests of his client."
This rule is similar to Canon 9 of the Canons of Professional Ethics which provided in pertinent part:
"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."
The Committee on Professional and Judicial Ethics of the Michigan State Bar interpreted Canon 9 as follows:
"On balance, we hold it improper for a prosecuting authority to interview a defendant in a criminal case without the knowledge and consent of his attorney of record." Opinion 202, 46 Mich State B J, 29, 30 (May 1967).
There is no question in our minds that this interpretation applies to Disciplinary Rule 7-104. In case of doubt, we now take this opportunity to call to the attention of the prosecutors of this state as well as to the remainder of the state bar that it is improper and unethical for a prosecuting attorney to communicate with a criminal defendant without first notifying defense counsel and obtaining his consent regardless who initiates the communication.
Clearly, the prosecutor's conduct in this case was improper. However, the question is not one of ethics but rather one of the admissibility of the evidence obtained during the course of the complained of interview. The trial judge determined *357 that the statements were voluntarily given and defendant makes no claim that they were not. Rather, he contends that the meeting resulted in constitutional infringements.[4] Although there is a dissenting minority, ethical violations such as the one in this case have not as of yet resulted in a suppression of evidence. See Judge (now Justice) LEVIN'S dissenting opinion in People v Patterson, 39 Mich. App. 467; 198 NW2d 175 (1972), and cases cited therein. We decline the invitation to join that minority.
Defendant's second contention is that the trial judge committed reversible error in admitting into evidence, over objection, certain photographs of the victim. Defendant argues that because his defense was alibi and the nature of the wounds and the manner in which they were inflicted were stipulated at trial that the photographs had no probative value and served only to inflame and prejudice the jury.
It is well settled that the admission of photographic evidence is within the discretion of the trial judge. People v Eddington, 387 Mich. 551; 198 NW2d 297 (1972). However, if the photographs serve no purpose other than to excite passion and prejudice in the minds of the jurors, then their admission is deemed to be error. People v Falkner, 389 Mich. 682; 209 NW2d 193 (1973). There is no per se rule that stipulations negate admissibility. The prosecution has the burden of establishing each and every element of the charged offense beyond a reasonable doubt, and the jury must be instructed to consider each element regardless of stipulation. People v Reed, 393 Mich. 342; 224 NW2d 867 (1975), cert den, 422 U.S. 1044, 1048; 95 S. Ct. 2660, 2665; 45 L. Ed. 2d 696, 701 (1975). We *358 have examined the photographs in this case. They depict the corpus delicti. We find nothing gruesome or inflammatory about them. Defendant was not prejudiced.
In answering questions posed by the prosecutor during cross-examination, defendant's chief alibi witness mentioned that he had submitted to a polygraph examination. Defendant claims reversible error.
Defendant is correct that generally evidence of polygraph examinations is inadmissible. People v Frechette, 380 Mich. 64; 155 NW2d 830 (1968), People v Rodgers, 66 Mich. App. 658; 239 NW2d 701 (1976). However, for the following reasons, which are explained in People v Whitfield, 58 Mich. App. 585; 228 NW2d 475 (1975), we find no error in this case. Defense counsel did not object nor request a cautionary instruction. The reference to the polygraph examination was made by a defense witness and we do not find that the prosecutor purposely interjected the same. Additionally, the testimony in question was isolated and was not pursued nor emphasized.
Over objection by defense counsel, the trial judge gave the following instruction to the jury:
"Now, in this case the Defendant has not taken the stand. Under our law, the Defendant may take the stand or elect not to do so.
"When he does not take the stand in his own behalf, Counsel have no right to comment on that nor has the Court any right to comment about it, and you have no right to take that into consideration in any manner in arriving at your verdict.
"It is his right to take the stand or he may elect not to do so, as he shall choose, and you are not in any sense to construe that against him." *359 Defendant's final allegation is that in view of People v Hampton, 394 Mich. 437; 231 NW2d 654 (1975), the trial judge committed reversible error. Hampton was decided after the trial in this case. In Hampton, our Supreme Court held:
"In a criminal case where the defendant elects not to testify, the court may instruct on the effect thereof, unless defense counsel (or the defendant acting in propria persona) expressly requests, before the Court instructs the jury, that no instruction be given on the subject in which event no instruction on the subject shall be given. In trials involving more than one defendant, the court shall give such an instruction upon the request of any defendant." 394 Mich. 437, 438. (Emphasis in original.)
Hampton established a new rule, and absent a clear statement by the Michigan Supreme Court we will not apply new rules retroactively. People v Daniels, 60 Mich. App. 458, 468; 231 NW2d 386 (1975). At the time of trial, the trial judge did not err, People v Harris, 52 Mich. App. 739; 218 NW2d 150 (1974), lv den, 394 Mich. 758 (1975), reh den, 395 Mich. 908 (1975), but rather relied on a long-standing practice for which we cannot fault him, People v Garcia, 398 Mich. 250; 247 NW2d 547 (1976).
Affirmed.
D.E. HOLBROOK, JR., J., concurred.
M.F. CAVANAGH, J. (dissenting).
I dissent because I find the reasoning of Justice LEVIN'S dissent in People v Patterson, 39 Mich. App. 467, 472; 198 NW2d 175, 178 (1972), more persuasive. In Patterson, supra, the breach of the canons was indirect, namely, failing to prevent the police from questioning a defendant in the absence of his *360 attorney. Here, the prosecutor was a direct participant in the preparation for and the conducting of the counselless interview. The effect of the prosecutor's presence and his influence upon the defendant is inestimable. Of equal uncertainty is whether any statements at all would have been produced had counsel been present prior to the commencement of any interrogation.
If Disciplinary Rule 7-104 is to have any meaningful effect, a prosecutor must be absolutely prohibited from interviewing a defendant, or authorizing the police to do so, without first obtaining the consent of defense counsel or the affirmation of defense counsel that he has advised the defendant of his rights and, following this advice, the defendant still wishes to be interviewed without him. Failure to do so should result in the suppression of any resulting evidence.
Accordingly, I would hold that the conduct of the prosecutor in this case necessitates reversal.
NOTES
[1] Miranda v Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694; 10 ALR3d 974 (1966).
[2] People v Walker (On Rehearing), 374 Mich. 331; 132 NW2d 87 (1965).
[3] 385 Mich Ixxx (1971), adopted October 4, 1971.
[4] Specifically defendant cites US Const, Am VI and Am XIV.