People v. Whisenant , 384 Mich. 693 ( 1971 )

Swainson, J.

On December 21, 1965, an armed robbery was committed at a gas station in Grand Rapids, Michigan. On February 3, 1966, a warrant was issued for defendant’s arrest on suspicion of his having been an accomplice in this robbery. Defendant was arrested at his place of employment. He was not informed of his right to have counsel present during any custodial interrogation and prior to his making any statement, nor did he waive any of these rights. During the custodial interrogation and without counsel present, defendant made a written confession concerning the armed robbery of December 21, 1965.

Defendant’s jury trial was held on June 27, 1966, two weeks subsequent to the Miranda decision¹ which became effective on June 13, 1966. Defendant’s confession of February 3, 1966, was admitted into evidence through the testimony of detective Woronko, who had interrogated defendant. Defendant was found guilty of the crime of robbery armed, and on July 18, 1966, was sentenced to 7-1/2 to 15' years imprisonment.

■ At the time of trial, defendant objected to the use of the confession on the ground that it was inadmissible under the standards laid down in Miranda. The Court of Appeals reversed his conviction and remanded to the trial court for retrial with the express instruction that the contested confession not be admitted.²

The Court of Appeals specifically held that the trial court was in error in admitting the confession in light of the fact that the defendant had not been informed of his constitutional right to have counsel present during the interrogation period.

Upon remand, the defendant was again tried on July 29 and 30, 1968, by a jury and before the same judge. The contested confession was again admitted over the strenuous objection of the defendant, upon the finding of the trial judge that it was admissible under Title II of the Federal Omnibus Crime Control and Safe Streets Act of 1968. Defendant was again found guilty and again sentenced to 7-1/2 to 15 years.

On August 28, 1969,³ the Court of Appeals held that the Federal Omnibus Crime Control Act referred to only Federal prosecutions and thus was inapplicable to this case. In addition, the Court of Appeals held that the trial court was bound to follow the law as stated by the appellate court. The Court of Appeals then reversed and again remanded for a new trial without the use of the confession.

The people thereafter petitioned for rehearing, relying upon this Court’s decision in People v. Woods, 382 Mich 128, decided August 4, 1969. On rehearing, the Court of Appeals adhered to its earlier opinion and again remanded.⁴ We granted leave to appeal (383 Mich 776).

The issue before this Court is whether the standards set down in Miranda v. Arizona, supra, concerning the rights of an accused during custodial interrogation are applicable to all trials commenced after June 13, 1966, or whether the standards are applicable only to prosecutions commenced after that date.

I.

In Johnson v. New Jersey (1966), 384 US 719 (86 S Ct 1772, 16 L Ed 2d 882), decided one week after Miranda, the court stated (p 721):

“In this ease we are called upon to determine whether Escobedo v. Illinois, 378 U.S. 478 (1964), and Miranda v. Arizona, ante, p 436, should be applied retroactively. We hold that Escobedo affects only those cases in which the trial began after June 22, 1964, the date of that decision. We hold further that Miranda applies only to cases in which the trial began after the date of our decision one week ago.” (Emphasis added.)

This is the holding of the Johnson case and would, without more, be controlling upon this Court. However, the court also said (p 733):

“In the light of these additional considerations, we conclude that Escobedo and Miranda should apply only to cases commenced after those decisions were announced.” (Emphasis added.)

This statement was, of course, in conflict with the earlier one quoted above. “Prosecutions commenced” and “trials commenced” are clearly not synonymous. However, the court then seemingly disregarded the statement when it stated (p 734):

“Because Escobedo is to be applied prospectively, this holding is available only to persons whose trials began after June 22, 1964, the date on which Escobedo was decided. * * *

“This we have done in Miranda, and these guidelines are therefore available only to persons whose trials had not begun as of June 13, 1966.” (Emphasis added.)

In Jenkins v. Delaware (1969), 395 US 213 (89 S Ct 1677, 23 L Ed 2d 253), the court held that the standards set down in Miranda did not apply to persons whose retrials had commenced after the date of Miranda if the original trial had begun before that date. Chief Justice Warren, speaking for the court, stated (p 219):

“In Johnson, after considering the need to avoid unreasonably disrupting the administration of our criminal laws, we selected the commencement of trial as determinative. We of course could have applied Miranda to all judgments not yet final, although they were obtained in good-faith reliance upon constitutional standards then applicable. See Linkletter v. Walker, 381 U.S. 618 (1965). As we pointed out, however, that choice ‘would [have] impose [d] an unjustifiable burden on the administration of justice.’ 384 U.S., at 733. On the other hand, we could have adopted the approach we took in Stovall [Stovall v. Denno (1967), 388 US 293 (87 S Ct 1967, 18 L Ed 2d 1199)] and Desist [Desist v. United States (1969), 394 US 244 (89 S Ct 1030, 22 L Ed 2d 248)] and made the point of initial reliance, the moment the defendant is interrogated, the operative event. See Schaefer [Schaefer, The Control of ‘Sunbursts’: Techniques of Prospective Overruling, 42 NYU L Rev 631, (1967)] at 646. But in an effort to extend the protection of Miranda to as many defendants as was consistent with society’s legitimate concern that convictions already validly obtained not be needlessly aborted, we selected the commencement of the trial.”

These statements from Jenkins while not controlling because they are dicta, in that case, are nevertheless instructive and do appear to give evidence of the United States Supreme Court’s intent. None of the justices dissented from Chief Justice Warren’s statement on this point.

Thus, while the United States Supreme Court has made conflicting statements as to the date of application of the Miranda decision, we feel that it has been sufficiently clear to hold that Miranda applies to all trials commenced in Michigan after June 13, 1966.

The Michigan Supreme Court has also previously clearly enunciated the law on this point in question in the case of People v. Fordyce (1966), 378 Mich 208. The Court stated (p 211):

“On June 20, 1966, the Supreme Court of the United States in the case of Johnson v. New Jersey [1966], 384 US 719 (86 S Ct 1772, 16 L ed 2d 882), held that the guidelines set forth in Miranda are available only to persons whose trials had not begun as of June 13, 1966.”

In Johnson v. New Jersey, supra, although there was one reference to the term “prosecution commenced,” the court stated at three separate points in the decision that the determinative date was “trial commenced.” The people quote several statements which, they assert, support their contention that “prosecution commenced” applies. However, these statements merely indicate why the court applied Miranda prospectively and not whether the “prosecution commenced” or “trial commenced” is the applicable date.

Thus, while the United States Supreme Court might have chosen to limit Miranda to confessions taken after June 13, 1966, clearly it did not do this. There are several reasons to support our conclusion on the choice of “trials commenced.” First, the choice of “prosecutions commenced” could not serve any useful purpose. If the court felt that reliance was the prime factor, the applicable date should be “all confessions obtained after June 13, 1966.”⁵ “Prosecutions commenced” certainly would not lend itself to the test of reliance.

Second, the United States Supreme Court in asserting an applicable date attempts to lend uniformity and certainty to the decisions of lower and state courts. The choice of “prosecutions commenced” accomplishes neither of these purposes. In People v. Clark (1876), 33 Mich 112, in discussing when a prosecution is commenced, the Court stated (P H9):

“The issuing of the warrant in good faith, and delivery to an officer to execute, is a sufficient commencement, if it appears that the defendant was afterwards arrested upon that warrant and bound over for trial.” See, also, People v. Clement (1888), 72 Mich 116, and In re Grzyeskowiak (1934), 267 Mich 697.

In Virginia, however, prosecution is commenced at arraignment.⁶ Other states have different rules. For example, in California and in Florida, the filing of an indictment is the commencement of the prosecution.⁷

Thus, the problem of equal protection presents itself. If a warrant was issued in Michigan on June 12, 1966, and the suspect arrested and interrogated, his confession could be used against him. However, if a warrant was issued in Virginia on June 12, 1966, and a suspect was arrested and interrogated but not arraigned until June 14, his confession could not be used against him. Thus, the Federal constitutional protection of a citizen would vary from state to state. This is precisely what the equal protection clause in the Federal constitution seeks to prevent.⁸

Third, the application of the “prosecution commenced” rule in Michigan could conceivably create very anomalous situations. For example, if a warrant was issued on June 12, 1966, and the suspect was not arrested and interrogated until subsequent to June 13,1966, under this rule any confession even though obtained after Miranda could be used against the defendant.

The people cite People v. Woods (1969), 382 Mich 128, as authority to support the “prosecutions commenced” theory. However, as a majority of the Court of Appeals pointed out, Woods is not inconsistent with the “trials commenced” theory. People v. Whisenant (On Rehearing 1970), 21 Mich App 518, 522. In Woods, this Court, per Justice Black, after thoroughly analyzing the pertinent authorities, ruled that Miranda did not apply to retrials if the first trial occurred prior to the Miranda decision. This, of course, was the conclusion that the United States Supreme Court reached in Jenkins v. Delaware, supra. Nothing we say today is inconsistent with that opinion.

II.

However, there is an alternative ground upon which we affirm the Court of Appeals. The Court of Appeals in People v. Whisenant (1968 [No. 1]), 11 Mich App 432, had reversed and remanded for a new trial without the admission of the confession. The trial court disregarded the order of the Court of Appeals and again allowed in the confession. As the Court of Appeals stated in People v. Whisenant (1969 [No. 2]), 19 Mich App 182, 189:

“It is fundamental law that the last utterance of an appellate court determines the law of the case, and upon remand for another trial subsequent to the appeal, the trial court is bound to follow the law as stated by an appellate court. If a litigant has any objection to the law as stated by the appellate court, his redress is an application for rehearing to the deciding court or an appeal to a still higher tribunal. George v. Wayne Circuit Judge (1953), 336 Mich 543; Thompson v. Hurson (1919), 206 Mich 139; American Insurance Co. of Newark v. Martinek (1921), 216 Mich 421; Pierce v. Underwood (1897), 112 Mich 186. In CL 1948, § 600.314, as amended by PA 1964, No 281 (Stat Ann 1969 Cum Supp § 27A.314) it is provided:

“‘(1) The decisions on appeal of the Court of Appeals are final, except as reviewed by the Supreme Court as provided by Supreme Court rule.’ OCR 1963, 800.4 added October 9, 1964, effective January 1, 1965, provides:

“ ‘The decision of a majority of the judges of a Division or panel in attendance at the hearing shall constitute the decision of the Court. Decisions of the Court of Appeals are final except as reviewed by the Supreme Court on leave granted by the Supreme Court.’ ”

The trial court in this case clearly disregarded the order of the Court of Appeals. Such action is not to be tolerated, and we agree with the above statement of the Court of Appeals as to the limited function that remains with a lower court when an appellate court speaks.

Court of Appeals affirmed.

T. M. Kavanagh, C. J., and Adams, T. G. Kavanagh, and Williams, JJ., concurred with Swainson, J.

1 Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974).

2 People v. Whisenant (1968), 11 Mich App 432.

3 People v. Whisenant (1969), 19 Mich App 182.

4 People v. Whisenant (On Rehearing) (1970), 21 Mich App 518.

5 See, e.g., Desist v. United States (1969), 394 US 244 (89 S Ct 1030, 22 L Ed 2d 248), where the court held that the rule laid down in Katz v. United States (1967), 389 US 347 (88 S Ct 507, 19 L Ed 2d 576) applied only to eases where the prosecution seeks to use wire tapping evidence obtained after December 18, 1967, the date of the Katz opinion.

6 Penn v. Commonwealth (1969), 210 Va 242 (169 SE2d 427).

7 People v. Ayhens (1890), 85 Cal 86 (24 P 635) ; Lowe v. State (1944), 154 Fla 730 (19 S2d 106).

8 Maxwell v. Bughee (1919), 250 US 525, 541 (40 S Ct 2, 63 L Ed 1124).