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In Riggs v. Yukins, 2001 WL 558241, at *1, 2001 U.S. Dist. Lexis 6760, at *2 (E.D.Mich. Mar. 13, 2001), the defendant's first-degree murder charge was dismissed after her preliminary hearing, where she was represented by counsel, due to the judge's finding that there was insufficient evidence to sustain the charge.
Summary of this case from Lindsey v. U.S.Opinion
Civil No. 00-CV-70134-DT
March 13, 2001
OPINION AND ORDER DISMISSING PETITION, FOR WRIT OF HABEAS CORPUS
Toni Cato Riggs ("Petitioner"), a state prisoner presently confined at the Scott Correctional Facility in Plymouth, Michigan, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of first-degree premeditated murder and conspiracy to commit murder following a jury trial in the Recorder's Court for the City of Detroit in 1994. She was sentenced to concurrent terms of life imprisonment without parole on those convictions. Petitioner's sole claim upon habeas review is that she was denied her Sixth Amendment right to counsel. For the reasons stated below, Petitioner's request for habeas relief is denied and the petition for writ of habeas corpus is dismissed.
I. Statement of Facts
Petitioner's convictions stem from the shooting death of her husband, Anthony Riggs, in Detroit, Michigan in March, 1991. The Michigan Court of Appeals described the relevant facts in some detail as follows:
In March 1991, defendant's husband, Army Specialist Anthony Riggs, was shot to death in Detroit shortly after his return from the Gulf War. Defendant retained an attorney, who represented her at her April 1991 preliminary examination of charges of first- degree premeditated murder and possession of a firearm during the commission of a felony in connection with her husband's murder. At the preliminary examination, the district court found that insufficient evidence had been presented with regard to the elements of first-degree murder and, accordingly, determined that there was not probable cause to bind over defendant to the Recorder's Court for trial on either charge. The district court dismissed the case against defendant and denied the prosecutor's motion for a stay of execution of the order of dismissal with a personal bond pending an appeal. The district court discharged defendant. See MCR 6.110(F). The prosecutor appealed to the Recorder's Court, arguing that the district court erred in refusing to consider certain evidence against the defendant. In June, 1991, the Recorder's Court affirmed the district court's decision. In July 1991, the prosecution applied for leave to appeal to this Court.
In April 1992, while the prosecution's appeal of the district court's decision was pending in this Court and defendant continued to be represented by her retained counsel, defendant traveled from Michigan to Texas, where she associated with a man named Reggie and a woman named Rosita. At this time, Reggie and Rosita engaged in an illegal drug transaction (the Texas drug transaction). As a result of her association with the Texas drug transaction and its participants, defendant became the target of an undercover drug investigation into the Colombian drug cartel Cali that was being conducted by the United States Drug Enforcement Administration (DEA). On February, 23, 1993, and while the prosecution's appeal of the district court's decision was still pending in this Court, defendant met in Detroit with two persons she believed to be high-level narcotics dealers to discuss the Texas transaction and various jobs that she could perform for their supposed narcotics organization. The supposed dealers were, in reality, DEA special agent Richard Crock and his partner, Joseph Peterson. During this meeting, which was videotaped by the federal agents, defendant detailed her involvement in her husband's killing.
Crock, who had been attempting to conduct a long-term undercover investigation that was to end shortly, periodically stayed in touch with defendant via face-to-face meetings, which were videotaped, and telephone contacts, which were recorded, during 1993. On May 26, 1993, this Court issued its opinion affirming the district court's suppression of evidence and determination that insufficient other evidence existed to bind over defendant for trial. In June 1993, the prosecution filed with our Supreme Court an application for leave to appeal this Court's affirmance of the district court's decision. On November 17, 1993, and while the prosecution's appeal was still pending in our Supreme Court, defendant was arrested by Crock and other DEA agents pursuant to an arrest warrant for federal narcotics violations and was taken to DEA lockup facilities in Detroit. Defendant was brought to a conference room in which were Crock and Sergeant William Rice of the Detroit Police Department. Rice was the officer in charge of the state investigation into the murder of defendant's husband. Crock played a portion of the videotape of his February, 23, 1993, meeting with defendant during which defendant detailed her involvement in her husband's killing and then left the room. Rice interviewed defendant and obtained an additional statement from defendant. On November 30, 1993, our Supreme Court denied the prosecution's application for leave to appeal.
A state complaint was issued in which defendant was charged, in part, with first-degree premeditated murder and conspiracy to commit murder. Defendant's preliminary examination was held on December 14 and 15, 1993. DEA agent Crock was the only witness called to testify. His testimony concerning defendant's statements was received following the district court's denial of defendant's motion to suppress such testimony on the ground that it had been obtained in violation of defendant's Sixth Amendment right to counsel. Crock's testimony may be summarized as follows. Beginning in spring 1992, Crock had been coordinating an investigation into the Cali drug cartel as a member of a task force made up of DEA agents and members of state and local agencies. Defendant had not been a target of this investigation at its very beginning, but rather had become a target only after she became associated with the April 1992 Texas drug transaction. At some point, a DEA agent in Texas, as part of the "investigation run" from the DEA's Tyler, Texas, office, made initial contact with Rice concerning the exact status of Reggie (the man with whom defendant became involved in the Texas drug transaction) and provided Rice with information concerning Reggie. Crock did not direct that this information be given to Rice.
Crock first had contact with Rice in 1986. Concerning defendant, Crock contacted Rice in April 1992, after defendant had become involved in the Texas transaction. At that time, Crock became aware of who defendant was, that homicide charges had been brought against defendant in a state court, and that Rice was still investigating defendant. Crock's understanding of the exact nature of the legal proceedings against defendant in April 1992 was only that there had been a dismissal. Crock related to Rice "the specifics going back to April of '92" concerning any possible involvement by defendant with Reggie.
Crock had no contact with defendant after April 1992 until early 1993 when he recruited a new confidential informant who was able to contact defendant. This confidential informant was working with Crock on the Texas transaction. Crock, the confidential informant, and Crock's partner, Joseph Peterson, tried unsuccessfully to contact defendant by telephone several days before February 23, 1993. However, no contact was made with defendant before February 23, 1993, when Peterson was finally able to arrange by telephone the February 23, 1993, meeting with defendant.
Rice apparently traveled to Texas in January 1993 and obtained statements from Reggie and Rosita. Rice did not undertake to travel to Texas on the basis of any information provided by Crock. Crock knew of Rice's investigation, but he was not made aware until after his February 23, 1993, meeting with defendant that Rice had obtained statements in Texas. Crock had still not seen the statements obtained by Rice at the time of defendant's December 14, 1993, preliminary examination.
Although Crock's testimony is not entirely clear in this regard, it appears that Crock contacted Rice either the day before or the day of the February 23 meeting because "at that point in the investigation we could formulate plans to meet with" defendant. This contact occurred before Peterson contacted defendant by telephone and arranged the February 23, 1993, meeting.
Crock, in his undercover role as a high-level narcotics dealer, thus met in Detroit with defendant on February, 23, 1993. Crock had information that defendant wanted to be involved in this meeting. Rice was not in the vicinity of this meeting. The meeting began with Peterson introducing defendant to Crock and indicating that defendant was the person involved in the April 1992 Texas drug transaction. Crock asked defendant to explain what had happened in Texas so that he could assess the situation because the rules of his organization had been violated during this transaction. As part of their discussion concerning the Texas transaction, Crock and defendant discussed Reggie. Defendant brought up the fact that she was concerned that Reggie was going to turn state's evidence against her in the murder case. The conversation concerning the Texas transaction lasted over ninety minutes. After discussing defendant's involvement in the Texas drug transaction, the conversation turned to defendant's suitability for jobs in the drug trade as a drug or money courier. Crock also learned that defendant had some money that she wanted to invest. At some point in the conversation, defendant told Crock about the appeal and that she was represented by counsel.
After defendant indicated that she was interested in being involved in the drug trade, Crock told her that before they could put her to work they had to address some concerns they had with her past. Crock then turned the discussion to the homicide in the context that he was trying to rectify problems that a confidential informant would be having because of Reggie's cooperation and that defendant needed to tell him what had happened if she wanted his help. When Crock indicated that he had to know defendant's history and background, defendant was hesitant at first. Initially, defendant stated that she had nothing to do with the homicide. Crock told her that this story "didn't add up. . . ." At some point, Crock listened by way of telephone extension to a telephone conversation defendant had with a confidential source that defendant had identified as being involved in the drug trade. This telephone conversation lasted less than two minutes and had been preplanned by Crock because "we wanted to be in a position to discuss the homicide." After this telephone conversation, defendant indicated that she had formulated a plan with her brother to murder her husband for financial gain. Defendant provided Crock with the details of how this plan evolved and was executed. Crock met with Rice within twenty-four hours after the February 23, 1993, meeting.
Crock's primary purpose in meeting with defendant on February 23, 1993, was to further and expand his drug investigation into the Texas transaction, which involved persons he was investigating in the Cali cartel as well as some of his own confidential informants. At that point, Crock did not have a "prosecutable case" against defendant concerning "her involvement in the Texas transaction," but through the undercover contact, he was hoping to generate such a case.
Although not a primary goal, another goal of the meeting was to get defendant to make some statement about the homicide. Crock's job as a DEA agent was to investigate any felony arising out of any of his investigations. The meeting was preplanned, and Crock was there that day to put everything in a position where defendant would discuss the homicide. Crock arranged to have his February 23, 1993, discussion with defendant videotaped. Crock's conversation with defendant concerning the homicide had nothing to do with his drug investigation but concerned the homicide with which Crock was trying to help Rice. Crock denied that he and Rice had a prearranged plan to question defendant concerning the murder of her husband. Specifically, when defense counsel asked "Wasn't Sgt. Rice calling you saying, hey, man, see what you can do if you can hook up with Riggs, and then see if we can get her to say something; right?" Crock replied "No." Finally, Crock testified that at the time of defendant's preliminary examination, charges arising out of the April 1992 Texas transaction were pending against defendant in the federal court.
Following Crock's testimony, defendant was bound over to Recorder's Court for trial on the murder and conspiracy charges. Defendant thereafter moved in the Recorder's Court to suppress certain evidence, including suppression of her statements to Crock on the basis of a violation of the Sixth Amendment, US Const, Am VI, and Const 1963, art 1, § 20. A hearing was held at which Rice, Crock, and defendant testified concerning a Fifth Amendment claim raised by defendant. As relevant to defendant's Sixth Amendment claim, Crock testified at this hearing that Detroit police officers were assigned to his state and local task force, but that none of these officers were involved with the investigation of the murder of defendant's husband.
The Recorder's Court refused to suppress defendant's statements to Crock concerning her husband's murder. The court found that defendant had had a right to counsel under the Sixth Amendment and 1963 Const., art. 1, § 20 at the time she was questioned by Crock in his undercover capacity pursuant to People v. Gonyea, 421 Mich. 462, 365 N.W.2d 136 (1935). However, the court concluded that Crock's questioning had not violated these rights:
As this court looks back to the instant case it concludes that none of the cases cited by defendant is on point or analogous. Massiah v. United States, 377 U.S. 201, 84 S Ct 1199, 12 L Ed 2d 246 (1964)] and [ Maine v. Moulton, 474 U.S. 159, 106 S Ct 477, 88 L Ed 2d 481 (1985)] both involved law enforcement officers getting co-defendants to cooperate against defendants during the trial phase of the case, which we don't have here. Additionally, [ United States v. Henry, 447 U.S. 264, 100 S Ct 21 83, 65 L Ed 2d 115 (1980)] involves a situation where an informant on the defendant's cellblock cooperates against the defendant for pay.
The instant case is a far cry from the cases cited above where the right to counsel was deliberately interfered with by law enforcement officer [sic] who planted people to elicit incriminating statements. Here we have a separate and distinct ongoing federal narcotic investigation which the DEA was genuinely and legitimately pursuing, totally independent of the state homicide case.
This court is satisfied that the narcotics investigation was not a ruse, artifice or subterfuge to get at the defendant. Nor was it generated for the purpose of eliciting incriminating statements from the defendant.
This court believes that the Sixth Amendment and Art I, § 20 right to counsel does not and should not protect defendants who are engaged in or alleged to be engaged in continuing criminal conduct. Therefore, the Court will deny the motion to suppress the videotapes and the defendant's conversations with Agent Crock.
The trial court subsequently denied defendant's motion for reconsideration of its suppression ruling. During defendant's trial on the murder and conspiracy charges, the video and audio tapes of defendant's conversations with Crock, including the videotape of the February, 23, 1993, meeting wherein defendant detailed her involvement in her husband's murder, were played for the jury. In addition, Lessie Riggs, the mother of Anthony Riggs, was permitted to read, over defense counsel's objection, the last letter Anthony Riggs wrote to her before he returned home from the Gulf War.People v. Riggs, 223 Mich. App. 662, 665-75 (1993).
See People v Riggs, unpublished opinion per curiam of the Court of Appeals, issued May 26, 1993 (Docket No. 142280).
See note 1, supra.
See note 1, supra.
In this regard, the following exchanges occurred during Crock's cross-examination:
Q. [Defense Counsel] Okay. And at this point you and Sgt. Rice spoke, and you were acting as an agent on behalf of the Detroit Police Department on behalf of Sgt. Rice, and you agreed to question Ms. Riggs over this homicide, and you had set it up so she could be tape recorded; right?
A. [Crock] I don't know if I could answer that the way you phrased it.
Q. Oh, my question, sir, was simply that you and Sgt. Rice had formulated a plan that you would get Ms. Riggs to confess to what happened in the homicide?
A. I don't think that is accurate.
Q. Okay, when you and Sgt. Rice planned this meeting, is that correct, discussed this meeting?
A. Discussed, yes.
Q. Discussed the meeting, and you were going to be meeting with her, and he wanted to find out about the homicide right?
A. I don't think anybody felt that was a real option at that point.
Q.I'm sorry.
A. I don't feel anyone believed that was an option at that point.
Q. You wanted to be in a position — is what I have here of your discussion — you preplanned it, you wanted everything to be in a position where she would discuss the homicide. Those are your words. I wrote them down in quotes. Were they not, sir?
A. Yes.
Q. And that is what you were doing there that day?
A. Yes.
* * * * * *
Q. Sir, what you told now is that this questioning involving her husband's homicide had nothing, absolutely nothing, to do with your drug investigation; right?
A. That's correct, yes.
Q. And that you were asking those questions because you and Sgt. Rice had a pre-arranged plan to get her to talk about the homicide on tape; is that right? That is what you told us before, isn't it, sir?
A. No, I don't believe I did.
See People v Riggs, unpublished opinion per curiam of the Court of Appeals, issued May 26, 1993 (Docket No. 142280).
See note 1, supra.
See note 1, supra.
In this regard, the following exchanges occurred during Crock's cross-examination:
Q. [Defense Counsel] Okay. And at this point you and Sgt. Rice spoke, and you were acting as an agent on behalf of the Detroit Police Department on behalf of Sgt. Rice, and you agreed to question Ms. Riggs over this homicide, and you had set it up so she could be tape recorded; right?
A. [Crock] I don't know if I could answer that the way you phrased it.
Q. Oh, my question, sir, was simply that you and Sgt. Rice had formulated a plan that you would get Ms. Riggs to confess to what happened in the homicide?
A. I don't think that is accurate.
Q. Okay, when you and Sgt. Rice planned this meeting, is that correct, discussed this meeting?
A. Discussed, yes.
Q. Discussed the meeting, and you were going to be meeting with her, and he wanted to find out about the homicide right?
A. I don't think anybody felt that was a real option at that point.
Q.I'm sorry.
A. I don't feel anyone believed that was an option at that point.
Q. You wanted to be in a position — is what I have here of your discussion — you preplanned it, you wanted everything to be in a position where she would discuss the homicide. Those are your words. I wrote them down in quotes. Were they not, sir?
A. Yes.
Q. And that is what you were doing there that day?
A. Yes.
* * * * * *
Q. Sir, what you told now is that this questioning involving her husband's homicide had nothing, absolutely nothing, to do with your drug investigation; right?
A. That's correct, yes.
Q. And that you were asking those questions because you and Sgt. Rice had a pre-arranged plan to get her to talk about the homicide on tape; is that right? That is what you told us before, isn't it, sir?
A. No, I don't believe I did.
At the close of trial, the jury found Petitioner guilty of first-degree premeditated murder and conspiracy to commit murder. The trial court subsequently sentenced her to concurrent terms of life imprisonment without parole.
II. Procedural History
Following sentencing, Petitioner filed an appeal as of right with the Michigan Court of Appeals asserting that: (1) she was denied her Sixth Amendment right to counsel when federal agents questioned her about her husband's murder during the pendency of a state-initiated appeal of dismissed charges concerning the same murder and her incriminating videotaped statements were admitted into evidence at trial, and (2) the trial court erred in admitting a letter that her husband had written to his mother shortly before his death. The Michigan Court of Appeals affirmed Petitioner's convictions and sentence in a lengthy 2-1 published opinion. People v. Riggs, 223 Mich. App. 662 (1997). Petitioner then filed an application for leave to appeal with the Michigan Supreme Court raising the same claims, which was denied. People v. Riggs, 458 Mich. 876 (1998). Petitioner also filed a petition for writ of certiorari with the United States Supreme Court, which was denied. Cato Riggs v. Michigan, 525 U.S. 1078 (1999).
Petitioner, through counsel, filed the present petition for writ of habeas corpus on January 10, 2000, asserting the same Sixth Amendment right to counsel claim raised on direct appeal of her convictions. Respondent filed an answer to the petition on August 8, 2000, contending that it should be dismissed for lack of merit.
III. Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), govern this case because Petitioner filed this habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254 (d) (1996).
In Williams v. Taylor, ___ U.S. ___, 120 S.Ct. 1495 (2000), the United States Supreme Court undertook a detailed analysis of the correct standard of review under the AEDPA. According to the Supreme Court:
Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that(1) "was contrary to . . . clearly established Federal law, as determined the by Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id. at 1523 (O'Connor, J., delivering the opinion of the Court on this issue).
In evaluating a state court decision under the "unreasonable application" clause, the Supreme Court further stated that a federal habeas court "should ask whether the state court s application of clearly established federal law was objectively unreasonable." Id. at 1522. "Under § 2254(d)(1)'s `unreasonable application' clause, then, a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id.
The Supreme Court also clarified that the phrase "clearly established Federal law, as determined by the Supreme Court of the United States," refers only to "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Id. at 1523. In determining what constitutes clearly' established federal law, therefore, a federal habeas court is restricted to pertinent United States Supreme Court precedent.
Lastly, § 2254(e)(1) requires that this Court presume the correctness of state court factual determinations. 28 U.S.C. § 2254 (e)(1). A habeas petitioner may rebut this presumption only with clear and convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
IV. Analysis
As noted, Petitioner contends that she is entitled to habeas relief because the trial court admitted into evidence inculpatory videotaped statements which were obtained in violation of her Sixth Amendment right to counsel. The Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const., amend. VI. The Sixth Amendment right to counsel does not attach until a prosecution is commenced, that is until the initiation of adversary criminal proceedings by a formal charge, a preliminary hearing, an indictment, an information or an arraignment. See McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). "It is only at that time `that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified, it is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.'" United States v. Gouveia, 467 U.S. 180, 189 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)).
The United States Supreme Court has described the nature of the right to counsel as follows:
The Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a "medium" between him and the State. As noted above, this guarantee includes the State's affirmative obligation not to act in a manner that circumvents the protections accorded the accused by invoking this right. The determination whether particular action by state agents violates the accused's right to the assistance of counsel must be made in light of this obligation. Thus, the Sixth Amendment is not violated whenever — by luck or happenstance — the State obtains incriminating statements from the accused after the right to counsel has attached. However, knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State's obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity. Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a state agent.Maine v. Moulton, 474 U.S. 159, 176 (1985) (internal citation omitted).
Without the initiation of formal charges, the possibility that a pretrial proceeding may have important consequences at trial, standing alone, is insufficient to trigger the Sixth Amendment right to counsel. See Moran v. Burbine, 475 U.S. 412, 431-32 (1986). Further, the right is offense specific. McNeil, 501 U.S. at 175. Once the right has attached and been asserted by the accused, the Sixth Amendment provides a right to counsel at "critical stages" of the proceedings. See Michigan v. Jackson, 475 U.S. 625, 632, n. 5 (1986). A critical stage of the proceedings includes government efforts to elicit information from the accused concerning the charged crime. Id. at 630. Once the right has attached and been invoked by the accused, any waiver of the right during a subsequent police-initiated custodial interrogation concerning the charged crime is ineffective. McNeil, 501 U.S. at 175.
In this case, the Michigan Court of Appeals determined that Petitioner's right to counsel was not violated, finding dispositive the fact that the initial state charges against Petitioner were dismissed for insufficient evidence at the preliminary examination. The Court of Appeals reasoned:
. . . when the case against a defendant is dismissed and the defendant is discharged, the positions of the state and the defendant are absolutely changed — there is nothing upon which the defendant could be convicted, nor are there charges under which the state could conduct a prosecution. The fact that the prosecution appealed the district court's refusal to bind over defendant for trial does not change this conclusion. Thus, for the purpose of the Sixth Amendment, although the state had committed itself to prosecuting defendant, it would appear that the government's adverse position was not solidified where the district court, in discharging defendant on the basis of insufficient evidence, necessarily determined that probable cause did not exist to believe either that the charged offenses had been committed or that defendant had committed them. See Gouveia, supra, 467 US at 189. Moreover, following the dismissal of the charges and the discharge of the defendant on the basis of the district court's determination that the evidence was insufficient for a formal accusation to lie against defendant, it would appear that the defendant was no longer an accused for Sixth Amendment purposes but rather again was only a suspect. See Jackson, supra.Riggs, 223 Mich. App. at 699.
The Court of Appeals further found that the fact that Petitioner was represented by counsel when the disputed interrogation occurred was not controlling, stating:
"[T]he suggestion that the existence of an attorney-client relationship itself triggers the protections of the Sixth Amendment misconceives the underlying purposes of the right to counsel. The Sixth Amendment's intended function is not to wrap a protective cloak around the attorney-client relationship for its own sake any more than it is to protect a suspect from the consequences of his own candor. Its purpose, rather, is to assure that in any `criminal prosecutio[n],' US Const, Am VI, the accused shall not be left to his own devices in facing the' `"prosecutorial forces of organized society."'"Id. at 703 (quoting Moran v. Burbine, 475 U.S. 412, 430 (1986) (quoting Maine v. Moulton, 474 U.S. 159, 170 (1985) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)))).
Finally, the Court of Appeals concluded:
In this case, no charges were pending against defendant when she was questioned by Crock. Moreover, unlike Moulton, Henty, and Massiah, in which the surreptitious interrogations were conducted by the charging sovereign, in this case, the defendant's statements were obtained by a different sovereign during a completely separate and legitimate investigation. Thus, where the unique facts of this case fall outside the facts of the Moulton line of cases, I conclude that balancing the narrow application of the Sixth Amendment right to counsel and the importance of allowing the authorities to initiate and pursue investigations compels the conclusion that once the case against defendant had been dismissed and she was discharged by the district court her Sixth Amendment right to counsel did not extend indefinitely to Crock's questioning of defendant during his separate investigation. Accordingly, although I do so on slightly different grounds, I would affirm the trial court's ruling that the evidence of defendant's statements did not warrant suppression.Id. at 704.
Having considered the matter, this Court determines that the Michigan Court of Appeals' decision is neither contrary to established United States Supreme Court precedent nor an unreasonable application thereof. The Supreme Court has held the Sixth Amendment right to counsel is violated when government agents surreptitiously question a criminal defendant regarding pending criminal charges in the absence of counsel and the defendant's incriminating statements are admitted into evidence at trial. See Moulton, 474 U.S. 159, 176-77 (1985) (state violated right to counsel when it recorded conversations between indicted defendant and cooperating co-defendant and defendant's incriminating statements concerning pending theft charges were admitted into evidence, even though state had legitimate reason for investigating other uncharged offenses); United States v. Herny, 447 U.S. 264, 270-71 (1980) (right to counsel violated when inmate who was a paid government informant elicited incriminating statements from jailed bank robbery defendant and statements were admitted at trial); Massiah v. United States, 377 U.S. 201, 206 (1964) (defendant released on bail was denied right to counsel when federal agents taped conversations between him and cooperating co-defendant concerning pending drug charges in absence of counsel and incriminating statements introduced at trial). The Supreme Court, however, has never indicated that the right to counsel extends into the future after criminal charges against the defendant have been dismissed — particularly where there is no evidence that government agents sought to have the charges dismissed in order to circumvent the defendant's right to counsel.
Additionally, several courts have determined that the use of incriminating statements obtained after the dismissal of charges does not violate the Sixth Amendment right to counsel. In United States v. Mapp, 170 F.3d 328, 333-34 (2nd Cir. 1999), cert. denied, 528 U.S. 901 (1999), for example, the Second Circuit held that the Sixth Amendment right to counsel was not violated when federal officials arranged for the defendant to be placed in a holding cell with a cooperating witness after state murder charges against the defendant had been dismissed due to evidentiary and speedy trial problems, the defendant made incriminating statements to the witness, and those statements were introduced into evidence at the defendant's federal racketeering trial. In reaching this conclusion, the court noted that the state charges had been dismissed and the federal charges had not yet been filed at the time the statements were made, the federal and state investigations were conducted independently, there was no federal involvement in the state decision to dismiss the charges, and there was no state involvement in the federal agents' decision to interrogate and charge the defendant. Id. at 334.
In United States v. Bartelho, 129 F.3d 663, 675 (1st Cir. 1997), the First Circuit held that a defendant's Sixth Amendment right to counsel was not violated when, after bank robbery charges had been dismissed and while he was incarcerated on an unrelated charge, he made incriminating statements to a fellow inmate concerning the robberies and those statements were admitted into evidence at his trial on the re-instituted bank robbery charges. The court was persuaded by the fact that the initial bank robbery charges had been dismissed and there was no evidence that the government had manipulated the charges to deprive the defendant of his right to counsel. Id.
In United States v. Skipworth, 697 F.2d 281, 283 (10th Cir. 1983), the Tenth Circuit concluded that a tape recording of a conversation between a federal criminal defendant and a paid informant conducted in the absence of counsel was properly admitted at the defendant's federal trial even though the informant knew that the defendant had been indicted in state court on similar charges. The court based its conclusion on the fact that the state charges had been dismissed one year before the tape recording was made. Although the defendant alleged that the state prosecutor intended to appeal the dismissal of the state charges, the court found no evidence to support this assertion and noted that "[n]othing in the record shows that any criminal charges were then pending anywhere against the defendant." Id. at 283-84.
In United States v. Holland, 59 F. Supp.2d 492, 502-04 (D. Md. 1998), the court held that the Sixth Amendment right to counsel did not survive a nolle prosequi order in a state murder case such that the defendant's subsequent incriminating statements to federal agents could be used against him in a federal prosecution arising from the same conduct. The court reasoned:
The Sixth Amendment right to counsel on a particular charge should not extend in perpetuity after a dismissal without prejudice of the charge. On the contrary, the continuation of the Sixth Amendment right after dismissal or nolle prosequi of the original charges is only warranted to protect against a deliberate, "mutual endeavor on the part of the state and federal authorities aimed at dismissing an original charge so that an incriminating statement can be obtained for use in a subsequent prosecution by a different sovereign. Mere knowledge of a prior, concluded prosecution by a separate sovereign, in which federal authorities were not involved, does not constitute "collusion" sufficient to extend the Sixth Amendment right to counsel to the new federal investigation.Id. at 504. See also United States v. Garcia, 861 F. Supp. 996, 1006 (D. Kan. 1994) (no Sixth Amendment right to counsel attached to federal agents' questioning of defendant, in part, because federal charges against defendant had already been dropped by government); United States v. Martinez, 816 F. Supp. 644, 645-46 (D. Or. 1993), after remand in 972 F.2d 1100 (9th Cir. 1992) (no Sixth Amendment violation when federal agents interrogated defendant concerning federal weapons violation in absence of counsel after similar state charges had been dismissed because, although the state prosecutor knew federal agents were interested in case, there was no evidence of improper collusion between state and federal authorities).
Lastly, relying upon Riggs, the Supreme Court of Appeals of West Virginia in State ex ret. Sims v. Perry, 515 S.E.2d 582, 592 (W.Va. 1999), has held that:
unless a criminal defendant can show that the government has obtained a dismissal of adversarial judicial criminal proceedings against him or her in order to circumvent his or her constitutional rights, once such criminal proceedings have been dismissed, the right to the assistance of counsel granted by the Sixth Amendment to the United States Constitution no longer applies, regardless of whether the defendant is represented by counsel.
In Perry, arson charges against the defendant had been dismissed for two years before law enforcement officials obtained his incriminating statements concerning the incident from a confidential informant, there were no adversarial judicial criminal proceedings pending against the defendant when the statements were made, and there was no evidence that the state sought dismissal of the initial charges in a deliberate attempt to circumvent the defendant's right to counsel. Id.
Although some courts have found that the Sixth Amendment right to counsel extends beyond the dismissal of criminal charges, in such cases, the prosecuting authorities have sought the dismissals in order to continue their investigations and then have deliberately obtained incriminating statements from the defendants in the absence of counsel. See, e.g., State v. Frye, 897 S.W.2d 324, 328-30 (Tex.Crim.App. 1995) (right to counsel violated where state obtained dismissal of misdemeanor theft charges against defendant to continue investigation, prosecution questioned defendant and made telephone recordings without counsel, and prosecution sought to indict defendant on felony theft charges arising from same conduct); United States v. Marshank, 777 F. Supp. 1507, 1518 (N.D. Cal. 1991) (prosecutor dismissed indictment to continue investigation and defense attorney provided information to prosecutor which was used to re-indict defendant); United States v. Louis, 679 F. Supp. 705, 709 (W.D. Mich. 1988) (court suppressed defendant's statements to federal agents on Sixth Amendment grounds although no federal charges were pending against him when questioned because he had been formally charged in state court for same conduct, federal agents questioned him at state prosecutor's request, state prosecutor and federal agents viewed suit by federal sovereign as interchangeable, and federal agents understood that state charges would be dropped if federal charges were initiated).
These cases thus indicate that the right to counsel does not survive the dismissal of formal charges against an accused, at least when there is no deliberate attempt on the part of prosecuting authorities to circumvent the Sixth Amendment right to counsel through the purposeful dismissal of pending charges and!or collusion between different sovereigns.
In this case, it is undisputed that Petitioner invoked her right to counsel at the 1991 preliminary examination on the initial state charges arising from her husband's murder. However, the state district judge dismissed the case against Petitioner after the preliminary examination pursuant to Michigan Court Rule 6.110(F) which provides:
If, after considering the evidence, the court determines that probable cause does not exist to believe either that an offense has been committed or that the defendant committed it, the court must discharge the defendant without prejudice to the prosecutor initiating a subsequent prosecution for the same offense.
M.C.R. 6.110(F). Despite the state's appeal of this dismissal, Petitioner was no longer facing any charges arising from her husband's murder and was free to go about her business. As characterized by the Michigan Court of Appeals, once the formal charges had been dismissed, the positions of the parties had changed — Petitioner was no longer an accused, but merely a suspect in the state's ongoing investigation.
Additionally, it is clear that the state authorities did not seek to circumvent Petitioner's Sixth Amendment rights by seeking dismissal of the charges in order to surreptitiously obtain incriminating statements concerning her husband's murder. Furthermore, there is no evidence of improper collusion between state and federal authorities. Petitioner's inculpatory statements were made during an independent and legitimate federal investigation of illegal drug activities. Although Agent Crock testified that he had contacted Detective Rice prior to meeting with Petitioner for administrative reasons and that one of his purposes was to question Petitioner about her husband's death, there is no evidence that Detective Rice asked Agent Crock to interrogate Petitioner about the homicide or that Detective Rice had any control over the federal investigation of Petitioner.
Given present case law and the unique circumstances of this case, the Court concludes that the Michigan Court of Appeals' decision is neither contrary to United States Supreme Court precedent nor an unreasonable application of clearly established federal law. Petitioner is therefore not entitled to habeas relief on her Sixth Amendment claim.
V. Conclusion
For the reasons stated, this Court concludes that Petitioner is not entitled to federal habeas relief on the claim presented. Accordingly;
IT IS ORDERED that Petitioner's request for habeas relief is DENIED and the petition for writ of habeas corpus is DISMISSED WITH PREJUDICE.