People v. Murphy

Order Michigan Supreme Court
Lansing, Michigan

June 25, 2008 Clifford W. Taylor,
Chief Justice

132421 & (83) Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman,
PEOPLE OF THE STATE OF MICHIGAN, Justices
Plaintiff-Appellant,

Cross-Appellee,

v SC: 132421

COA: 258397

Wayne CC: 04-001084-01

BERNARD CHAUNCEY MURPHY,

Defendant-Appellee,

Cross-Appellant.

_________________________________________/

On order of the Court, having granted leave to appeal and having heard oral
argument, the October 12, 2006 order of the Court of Appeals is considered and, pursuant
to MCR 7.302(G)(1), we REVERSE the Court of Appeals decision to grant the defendant
a new trial rather than a new appeal. See Roe v Flores-Ortega, 528 US 470 (2000);
United States ex rel Thomas v O’Leary, 856 F2d 1011 (CA 7, 1988). Given the
prosecutor’s concession that the defendant is entitled to a new appeal because of defense
counsel’s absence during the prosecutor’s successful interlocutory appeal, we REMAND
this case to the Court of Appeals for a new appeal. On remand, the defendant is entitled
to appointed appellate counsel. In reviewing its prior decision to reverse the trial court’s
order suppressing the shotgun evidence, the Court of Appeals is not bound by the law of
the case doctrine. See Locricchio v Evening News Ass’n, 438 Mich 84, 109-110; 476
NW2d 112 (1991) (stating that “the law of the case doctrine must yield to a competing
doctrine: the requirement of independent review of constitutional facts”). We VACATE
as moot the remainder of the Court of Appeals analysis.

If the Court of Appeals determines after the appeal that it would have upheld the
trial court’s original evidentiary ruling, it must then assess the impact of the improperly
admitted evidence on the defendant’s trial under the appropriate standard of review.
People v Carines, 460 Mich 750 (1999). The defendant is entitled to a new trial only if
he meets his burden of proof under Carines, supra at 774. On remand, the Court of
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Appeals is directed to consider the issue raised by the defendant but not addressed by that
court during its initial review of this case. The application for leave to appeal as cross-
appellant is DENIED, because we are not persuaded that the question presented should be
reviewed by this Court.

We do not retain jurisdiction.

CAVANAGH and KELLY, JJ., concur in the reversal and remand.

MARKMAN, J., concurs and states as follows:

I write separately because I disagree with the majority’s basis for the order of
remand. Rather than remanding to the Court of Appeals to consider anew the merits of
the trial court’s suppression ruling, I would hold that: (1) under Strickland v Washington,
466 US 668 (1984), a claim for ineffective assistance of counsel generally requires a
criminal defendant to demonstrate that defense counsel’s representation was objectively
unreasonable, and that the defendant suffered prejudice as a result; (2) as an exception to
Strickland, United States v Cronic, 466 US 648 (1984), established that prejudice may be
presumed when a defense counsel is absent at a critical stage, thereby granting automatic
relief to a defendant; (3) as an exception to Cronic, Satterwhite v Texas, 486 US 249
(1988), indicates that an absence of counsel at a critical stage only requires automatic
relief for a defendant if that absence cannot be sufficiently separated from the entire
criminal proceedings; and (4) in this case, where the absence of counsel merely resulted
in the addition of a single discrete piece of evidence, the absence can be sufficiently
separated from the entire proceedings. Accordingly, under Satterwhite, the remaining
question is whether the absence of counsel was harmless under the standard in Chapman
v California, 386 US 18 (1967). Because that issue was never briefed by the parties or
considered by the lower courts, I would remand to the Court of Appeals so that it can
address whether the absence of counsel constituted harmless error.

I. FACTS AND PROCEDURAL HISTORY

Defendant was charged with two counts of armed robbery and one count of
possession of a firearm during the commission of a felony. Before trial, the prosecutor
sought to admit into evidence a shotgun that had been found at a gas station where
defendant had stopped immediately before his arrest; the shotgun allegedly had been used
in the charged crimes. When the trial court denied the prosecutor’s motion to admit the
shotgun, the prosecutor filed an emergency interlocutory appeal in the Court of Appeals.
Despite the prosecutor’s efforts, defense counsel was not actually informed of the appeal
until after the Court of Appeals had issued an order reversing the trial court and
permitting the shotgun to be admitted. Although the trial court subsequently stayed the
trial so that defense counsel could appeal the adverse appellate ruling, no further action
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was taken by defendant. At trial, the shotgun was admitted, and defendant was convicted
on all counts.

On appeal, the Court of Appeals reversed defendant’s conviction and remanded
for a new trial. People v Murphy, unpublished opinion per curiam, issued October 12,
2006 (Docket No. 258397). The Court of Appeals concluded that, in the original
interlocutory appeal, defendant had been denied the effective assistance of counsel under
Cronic; such a complete absence of counsel at a critical stage of the proceedings meant
that defendant did not need to show actual prejudice. We granted the prosecutor’s
application for leave to appeal. 477 Mich 1019 (2007).

II. ANALYSIS

The Sixth Amendment of the United States Constitution states that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence.” US Const, Am VI; see also Const 1963, art 1, § 20 (“In every
criminal prosecution, the accused shall have the right . . . to have the assistance of
counsel for his or her defense”).1 The United States Supreme Court has held that “‘the
right to counsel is the right to the effective assistance of counsel.’” Strickland, supra at
686 (emphasis added), quoting McMann v Richardson, 397 US 759, 771 n 14 (1970).
Strickland established a two-part test for determining whether a counsel’s representation
was ineffective under the Sixth Amendment, People v Frazier, 478 Mich 231, 243
(2007); a defendant must show that “counsel’s performance was deficient,” and that “the
deficient performance prejudiced the defense.” Strickland, supra at 687.

On the same day that Strickland was decided, the United States Supreme Court
also issued Cronic, in which it identified “three rare situations in which the attorney’s
performance is so deficient that prejudice is presumed.” Frazier, supra at 243. The
Court recently summarized the first of these situations: “First and ‘most obvious’ was the
‘complete denial of counsel.’”[2] Bell v Cone, 535 US 685, 695-696 (2002), quoting
Cronic, supra at 659. Bell elaborated: “A trial would be presumptively unfair, we said,
where the accused is denied the presence of counsel at ‘a critical stage.’” Id. at 695,
quoting Cronic, supra at 659, 662.3

1
This Court has held that “the Michigan Constitution does not afford greater protection
than federal precedent with regard to a defendant’s right to counsel when it involves a
claim of ineffective assistance of counsel.” People v Pickens, 446 Mich 298, 338 (1994).
2
Although Cronic uses the term “denial,” it makes clear that this prong is implicated
either when counsel is “totally absent” or when counsel has been “prevented from
assisting the accused.” Cronic, supra at 659 n 25.
3
The other two Cronic situations are: (1) where defense counsel “entirely fails to subject
the prosecution’s case to meaningful adversarial testing,” Cronic, supra at 659 (emphasis
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Here, defense counsel was unaware of the interlocutory appeal until after the
Court of Appeals had rendered its decision. A portion of a criminal proceeding
constitutes a “critical stage” if “potential substantial prejudice to defendant’s rights
inheres in the . . . confrontation and . . . counsel [may] help avoid that prejudice.”
Coleman v Alabama, 399 US 1, 9 (1967). Defendant in this case faced the prejudice of
having inculpatory evidence admitted against him, and an attorney could have assisted in
avoiding this potential harm; accordingly, defense counsel was absent at a “critical
stage.” See also United States ex rel Thomas v O’Leary, 856 F2d 1011 (CA 7, 1988)
(concluding that an interlocutory appeal is a “critical stage”). Thus, the Court of Appeals
correctly concluded that Cronic, rather than Strickland, was implicated.

However, our analysis cannot stop there. Although Cronic appears to require that
the complete absence of counsel at a “critical stage” warrants an irrebuttable presumption
of prejudice,4 the Supreme Court nonetheless has applied harmless-error review when
defense counsel was absent at a critical stage in Satterwhite, a post-Cronic case decided
in 1988. Thus, an apparent tension exists between Cronic and Satterwhite: under
Cronic, an absence of counsel at a critical stage results in an irrebuttable presumption of
prejudice, while under Satterwhite, the same may be analyzed for harmless error. Hence,
in order to evaluate whether the Court of Appeals correctly decided this case, we must
first reconcile Cronic and Satterwhite.

In Satterwhite, the defendant was subjected by the prosecutor to a psychiatric
examination before trial without actual notice having been provided to defense counsel.
Id. at 252. Satterwhite held that the absence of counsel was in “violation of the Sixth
Amendment right set out in Estelle [v Smith, 451 US 454 (1981)],” id. at 258, in which
the Court had earlier held that a pretrial psychiatric examination constituted a “critical
stage.” Estelle, supra at 470. Although the defendant in Satterwhite contended that this
absence of counsel at a critical stage necessitated automatic relief, the Court held that
automatic relief was only warranted in “cases in which the deprivation of the right to
counsel affected — and contaminated — the entire criminal proceeding.” Satterwhite,
supra at 257. Because the Sixth Amendment violation was “limited to the admission into
evidence of [the examining psychiatrist’s] testimony,” the deprivation of counsel did not
“contaminate the entire criminal proceeding,” and hence automatic relief was not

added); and (2) where the circumstances are such that, “although counsel is available to
assist the accused during trial, the likelihood that any lawyer, even a fully competent one,
could provide effective assistance is so small that a presumption of prejudice is
appropriate.” Cronic, supra at 659-660. Neither of these two situations is implicated
here.
4
See Moss v Hofbauer, 286 F3d 851, 859 (CA 6, 2002) (Cronic creates an “irrebuttable
presumption of prejudice”).
 5

warranted. Instead, where the absence of counsel does not contaminate the entire
proceeding, a reviewing court should first consider whether the error is harmless. Id. at
257-258.

Were this Court to conclude that every absence of counsel at a critical stage
requires automatic relief for a defendant, such a result would give no effect to
Satterwhite. The only method to harmonize these cases, and to give reasonable effect to
both, is to understand Satterwhite as carving out an exception to the general rule of
Cronic, which itself carves out an exception to Strickland. That is, a reviewing court
should first determine whether the effect of the absence of counsel can be sufficiently
separated from the entire proceeding, enabling an appellate court to meaningfully
compare the flawed proceeding with an unflawed proceeding. If the effect cannot be
sufficiently separated, then defendant is entitled to an irrebuttable presumption of
prejudice under Cronic; if the effect can be sufficiently separated, then it may be
reviewed for harmless error under Satterwhite.

This harmonization comports with the purpose of Cronic, which is that prejudice
should be presumed where the circumstances “are so likely to prejudice the accused that
the cost of litigating their effect in a particular case is unjustified.” Cronic, supra at 658.
If the absence of counsel permeates or infects an entire proceeding, the rationale
underlying Cronic warrants an irrebuttable presumption of prejudice, because under such
circumstances a defendant is highly likely to be prejudiced and because the extent and
nature of such prejudice “cannot be discerned from the record.” Satterwhite, supra at
256. Consequently, “any inquiry into its effect on the outcome of the case would be
purely speculative.” Id. However, this rationale does not apply when, as in Coleman, the
absence of counsel at a critical stage does not permeate or infect the entire proceeding.5
Thus, the merits of litigating whether the defendant suffered prejudice is warranted
because in at least some cases the absence of counsel will constitute mere harmless error
and there will be no need for a retrial.

Other courts have reached a similar conclusion. Indeed, every federal circuit court
of appeals has stated, post-Cronic, that an absence of counsel at a critical stage may,
under some circumstances, be reviewed for harmless error. Ellis v United States, 313
F3d 636, 643 (CA 1, 2002) (absence of counsel at critical stage would require
presumption of prejudice only if “pervasive in nature, permeating the entire proceeding”);
Yarborough v Keane, 101 F3d 894, 897 (CA 2, 1996) (“a less significant denial of the
right to counsel . . . has been held to be subject to harmless error review”); Ditch v Grace,
479 F3d 249, 256 (CA 3, 2007) (“A denial of counsel at any critical stage at which the
right to counsel attaches does not require a presumption of prejudice. Rather, a
presumption of prejudice applies only in cases where the denial of counsel would
5
In Coleman, none of the testimony given at the preliminary hearing was admitted into
evidence at trial. Coleman, supra at 10.
 6

necessarily undermine the reliability of the entire criminal proceeding.”); United States v
Owen, 407 F3d 222, 226 (CA 4, 2005) (“[H]armless-error analysis applies to the denial
of the Sixth Amendment right to counsel at all stages of the criminal process, except for
those where such denial affects and contaminates the entire subsequent proceeding.”),
cert den 546 US 1098 (2006); United States v Lampton, 158 F3d 251, 255 (CA 5, 1998)
(applying harmless-error review when counsel was absent during adverse testimony);
Mitzel v Tate, 267 F3d 524, 534 (CA 6, 2001) (“In ‘cases where the evil caused by
[denial of counsel at critical stage] is limited to the erroneous admission of particular
evidence at trial[,] harmless error analysis applies.’”) (citation omitted); Sanders v Lane,
861 F2d 1033, 1040 (CA 7, 1988) (“[I]n Satterwhite . . ., the Supreme Court explained
that not all violations of the right to counsel warrant per se reversal.”); Smith v Lockhart,
923 F2d 1314, 1321-1322 (CA 8, 1991) (noting that harmless-error review may apply
under some circumstances when counsel is denied at a critical stage); Hoffman v Arave,
236 F3d 523, 540 (CA 9, 2001) (after concluding that defendant had been denied counsel
at a critical stage, “[t]he next step of our analysis is to ask whether this constitutional
violation is ‘harmless error’”); United States v Lott, 433 F3d 718, 722 (CA 10, 2006)
(“Some Sixth Amendment right to counsel violations are amenable to harmless error
analysis, while others are not.”); Hammonds v Newsome, 816 F2d 611, 613 (CA 11,
1987) (applying harmless-error review to a denial of counsel at a preliminary hearing);
United States v Klat, 332 US App DC 230, 235 (1998) (whether a denial of counsel at a
critical stage “requires automatic reversal turns on the extent to which the violation
pervades the entire criminal proceeding”).

In the instant case, the effect of the absence of counsel can, in my judgment, be
sufficiently separated from the entire proceeding to enable an appellate court to
meaningfully compare the flawed proceeding with an unflawed proceeding. Satterwhite
applied harmless-error analysis “where the evil caused by a Sixth Amendment violation
is limited to the admission into evidence of [a psychiatrist’s] testimony,” id. at 257, that
is, where the absence of counsel merely resulted in the admission of one piece of
evidence. Because the interlocutory appeal in this case simply resulted in the admission
of additional physical evidence, the effect of the absence of counsel can be relatively
easily separated from the entire proceeding. Accordingly, Satterwhite provides the
relevant constitutional standard, not Cronic.

Under Satterwhite, the absence of counsel should be reviewed for harmless error.
Thus, it must be determined “whether the State has proved ‘beyond a reasonable doubt
that the error complained of did not contribute to the verdict obtained.’” Id. at 258-259,
quoting Chapman, supra at 24. Because the parties have not briefed this issue, I would
remand this case to the Court of Appeals to consider whether the absence of counsel
constituted harmless error in the present circumstances.

III. CONCLUSION
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The majority remands to the Court of Appeals to consider anew the trial court’s
suppression of the shotgun, concluding that the prosecutor conceded the necessity of such
a result. However, at oral argument, the prosecutor stated that if this Court decided to
simply resolve the entire case by “resolv[ing] the legal issue” in the prosecutor’s favor,
rather than remanding to the Court of Appeals, such a course of action would be
warranted. Moreover, the prosecutor argued that this Court should deem Strickland,
rather than Cronic, applicable. The majority’s order avoids addressing the legal issues
that warranted our initial grant of leave to appeal.

An opportunity to clarify the Constitution in an important realm has been lost
here: namely, an opportunity to clarify the relationship between Satterwhite and Cronic,
and thereby to provide a clear standard for the lower courts in assessing claims of
ineffective assistance of counsel. I would harmonize these cases by concluding, in
accordance with United States Supreme Court precedent, that only an absence of counsel
at a critical stage that cannot be sufficiently separated from the remainder of the
proceedings necessitates automatic relief. In the present case, in which the absence of
counsel resulted in the admission of a discrete piece of evidence, a reviewing court is
capable of reasonably determining whether that admission was harmless. Accordingly,
rather than remand to the Court of Appeals to consider the merits of the trial court’s
original order suppressing the shotgun evidence, I would remand to that same court to
consider whether the absence of counsel contributed to the verdict. If not, there is no
need to consider the merits of the suppression order.

The failure of the majority to settle these issues has real-world consequences.
Because its order does not set forth any criticism or analysis of the rationale of the Court
of Appeals with respect to the application of Cronic, but avoids substantive issues,
significant legal questions remain. Does Cronic always apply when defense counsel is
unaware of a judicial proceeding, or does Satterwhite establish an exception? If so, what
is the extent of this exception? Can a trial court ever cure an absence of counsel? If a
trial court attempts to cure such a violation, but the defendant fails to take advantage of
the opportunity, does Strickland or Cronic or Satterwhite apply? Without any answers to
these questions, under the rationale of the Court of Appeals, which the majority’s order
does not disapprove, Cronic would continue to apply to a class of cases that, in my
judgment, should be governed by the much different rule of Satterwhite. That is, cases in
which an error stemming from an absence of counsel can be effectively evaluated for its
effect on the verdict will nonetheless necessitate automatic relief for defendants under the
rationale of the Court of Appeals, despite the fact that such cases fall well beyond the
underlying rationale of Cronic — namely, that a defendant should be granted automatic
relief when the effect of an absence of counsel is indiscernible or otherwise impossible to
evaluate. For example, a defendant whose counsel was absent for a prosecutor’s motion
to admit a shotgun will receive a retrial, whereas another defendant whose attorney
simply made a poor argument against the admission of a shotgun will be required to
demonstrate prejudice before being granted a retrial. Thus, despite the fact that the error
 8

in both hypothetical cases leads to the admission of the same piece of evidence, two
widely different outcomes will occur. Such a result is anomalous and renders
increasingly arbitrary the right to counsel.

Because the majority has failed to afford meaningful guidance for ineffective-
assistance-of-counsel cases, and because this failure will almost certainly bear adverse
fruit in some unknown number of later cases, I do not join in its order.

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 25, 2008 _________________________________________
t0618 Clerk