_______________________________ 

Michigan Supreme Court 

Lansing, Michigan 48909 

Chief Justice Justices 

Maura D. Corrigan Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED APRIL 22, 2004 

PEOPLE OF THE STATE OF MICHIGAN, 

Plaintiff-Appellee, 

v No. 121300 

JOHN RODNEY MCRAE, 

Defendant-Appellant. 

BEFORE THE ENTIRE BENCH 

CORRIGAN, C.J. 

In this case we must determine whether the admission 

of statements made by defendant to a sheriff’s reserve 

deputy violated defendant’s Sixth Amendment rights. We 

conclude that the admission of the statements did violate 

defendant’s Sixth Amendment rights because, under the 

circumstances in this case, the reserve deputy was a state 

actor at the time he questioned defendant, who had not 

waived his Sixth Amendment right to counsel. We have 

already concluded that such an error would not be harmless 
 

beyond a reasonable doubt;1 therefore, we reverse the 

decision of the Court of Appeals and remand for a new 

trial. 

I. FACTUAL HISTORY AND PROCEDURAL POSTURE 

Defendant was charged with first-degree murder after 

the remains of fifteen-year-old Randy Laufer were found on 

the grounds of defendant’s previous residence. After 

defendant was arrested, he received his Miranda2 warnings 

and invoked both his Fifth Amendment right to be free from 

compelled self-incrimination and his Sixth Amendment right 

to counsel. After arraignment, while defendant was in 

custody awaiting trial, defendant apparently requested to 

speak to an old neighbor, Dean Heintzelman. It had been 

ten years since defendant had seen Heintzelman, and 

defendant was unaware that Heintzelman had become a reserve 

police officer. Further, defendant was unaware that both 

Heintzelman and Heintzelman’s son were part of the police 

team present at the scene when Randy Laufer’s body was 

recovered. 

Heintzelman visited defendant after he finished his 

shift as a reserve deputy. Before visiting defendant, 

Heintzelman asked the permission of one of the corrections 

1 465 Mich 874 (2001). 

2 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed

2d 694 (1966). 

2 
 

officers to do so. Heintzelman was in full uniform, 

complete with badge. Although it was some time after 

eleven o’clock at night, Heintzelman was allowed to go 

directly to defendant’s maximum security cell. Heintzelman 

later testified that he had the following conversation with 

defendant: 

Well, first we just started talkin’, talkin’

about – shook hands and everything, you know,

like I hadn’t seen him in a long, long

time. . . . I asked him about his boy, Marty, 

‘cuz his boy Marty is the same age as my son.

. . . I told him, I said, “Well, Marty’s in here 

from what I understand, too.”[3] And then he 

showed me pictures of Marty’s wife and his baby,

and we carried on a conversation, like you or I

would. 

And then I said – I asked John – I said,

“John, did you do what you’re charged with here?”

And he didn’t answer me. So we just went talkin’

again about, well, more or less about Marty

again. And I said, “Well, you know, they think

Marty had something to do with that, you know,

with Randy.” And he says, “Well, if they try to

pin it on Marty, I’ll let ‘em fry my ass.” And 

that was his words. 

I said, “John, did you do it?” And he just

hung his head down and said, “Dean, it was bad.

It was bad.” That’s – we didn’t discuss it any

more. 

After questioning defendant about the charges, Heintzelman 

reported the discussion to Lieutenant McClellan, who was 

the officer in charge of the Laufer investigation scene. 

Heintzelman then volunteered to go back and talk to 

3 Defendant’s son had been held as an accessory to the

murder. 

3
 
 

defendant if McClellan requested. Heintzelman was not 

permitted to speak with defendant again. 

Defendant moved to suppress Heintzelman’s testimony 

regarding defendant’s statements because the alleged 

statements were obtained in violation of defendant=s right 

to counsel and because defendant was not given Miranda 

warnings again before questioning. After an evidentiary 

hearing, the trial court denied defendant’s motion to 

suppress on the ground that defendant had initiated the 

conversation. After defendant was convicted by a jury of 

first-degree murder, he challenged on appeal the admission 

of the statements.4 The Court of Appeals did not determine 

if there was error, ruling instead that, even if the 

admission were error, it was harmless beyond a reasonable 

doubt.5

 Upon defendant=s first application for leave to appeal, 

this Court determined that if the admission of the 

statement were error, such error would not be harmless 

beyond a reasonable doubt. This Court vacated the Court of 

4

 Defendant also raised two other issues that are not 

before this Court. 

5

 Unpublished opinion per curiam, issued January 12,

2001 (Docket No. 217052). 

4
 
 

 

 

 

Appeals judgment in part and remanded the case for 

reconsideration of defendant=s claim of error.6 

On remand, the Court of Appeals held that the trial 

court did not err in admitting this evidence, because “the 

statement at issue was made in the context of a 

conversation between former friends, which, as the trial 

court in this case found, was initiated by the defendant.”7 

Defendant again appealed to this Court, and we granted 

leave, directing the parties to address: “(1) whether 

defendant's statements to Officer Heintzelman constituted 

the interaction of custody and official interrogation, as 

discussed in Illinois v Perkins, 496 US 292 [110 S Ct 2394; 

110 L Ed 2d 243] (1990), and (2) whether Officer 

Heintzelman was a state actor at the time defendant made 

the statements to him.” 468 Mich 921 (2003). 

II. STANDARD OF REVIEW 

In order to determine whether a constitutional error 

occurred, we must first determine whether Heintzelman was a 

state actor, which is a mixed question of fact and law. We 

review for clear error a lower court’s findings of fact, 

6 465 Mich 874 (2001). 

7

 Unpublished opinion per curiam, on remand, issued

February 12, 2002 (Docket No 217052), slip op at 5. 

5
 
 

 

MCR 2.613(C), and review de novo questions of law. People 

v Herron, 464 Mich 593, 599; 628 NW2d 528 (2001). 

III. DISCUSSION 

A. STATE ACTOR ANALYSIS 

The people argue that Heintzelman was not a state 

actor because he did not visit defendant in an official 

police capacity, but was invited to visit defendant as a 

former neighbor and friend. That defendant was unaware of 

Heintzelman’s reserve deputy status when he asked to see 

him, however, does not end the inquiry. 

In Griffin v Maryland, 378 US 130, 135; 84 S Ct 1770; 

12 L Ed 2d 754 (1964), the Supreme Court held that “[i]f an 

individual is possessed of state authority and purports to 

act under that authority, his action is state action. It 

is irrelevant that he might have taken the same action had 

he acted in a purely private capacity or that the 

particular action which he took was not authorized by state 

law.”8 It is clear from the record that Heintzelman 

8 Although we agree with the dissent that not every act

performed by someone who happens to be a police officer

constitutes state action, it must be noted that the cases

cited by the dissent in support can be distinguished from

this case. 

Only one case, United States v McGreevy, 652 F2d 849

(CA 9, 1981), involves a constitutional challenge. In 

McGreevy, the defendant alleged a Fourth Amendment 

violation because the Federal Express worker who searched

his package also happened to be a police officer. The 

court rejected the Fourth Amendment claim on the ground

6 
 

that the FedEx worker was not acting under color of state

law when he opened the package. The court noted that the 

worker did not obtain his FedEx job as a result of being a

police officer and “carefully separated” the two jobs. Id. 

at 851. The same cannot be said for Heintzelman. At the 

time he questioned defendant, Heintzelman was present at 

defendant’s maximum-security cell at 11:30 PM by virtue of

his status as a sheriff’s reserve deputy. He did nothing

to “carefully separate” himself from his apparent

authority. 

The remaining cases cited by the dissent are civil

claims brought under 42 USC 1983. The dissent does not 

explain why these civil cases, predicated on federal 

statute, should be dispositive for purposes of 

constitutional claims. Although the United States Supreme

Court has held that conduct that is state action for 

constitutional purposes is action “under color of state

law” for § 1983 purposes, it has never held that the

opposite is true. In other words, conduct that fails to

constitute action “under color of state law” for § 1983

purposes does not necessarily fail to represent state 

action for constitutional purposes. In Nat’l Collegiate

Athletic Ass’n v Tarkanian, 488 US 179, 182 n 4; 109 S Ct

454; 102 L Ed 2d 469 (1988), the United States Supreme

Court merely stated that in that case, in which the 

plaintiff claimed he had been deprived of his Fourteenth

Amendment due process rights in violation of § 1983, “the

under-color-of-law requirement of 42 U.S.C. § 1983 and the

state-action requirement of the Fourteenth Amendment are

equivalent.” We read the footnote as merely setting forth

the unremarkable conclusion that, for Fourteenth Amendment

violations premised on violations of § 1983, the two stateaction inquiries are equivalent. This case, however,

involves a very different inquiry. 

The other § 1983 cases cited by the dissent can be

similarly distinguished. In Barna v Perth Amboy, 42 F3d

809 (CA 3, 1994), the plaintiffs brought a civil action

under 42 USC 1983 as a result of an alleged assault by the

defendant police officers. The assault occurred when one 

of the off-duty police officers thought he saw one of the

plaintiffs strike his sister and intervened. The court 

held that this initial altercation was a family dispute and

that the off-duty officers were therefore not acting under

color of state law. Id. at 815. Because of the personal

nature of the dispute, the court concluded that the use of

the police-issued night stick in the fight, although 

7
 
 

possessed actual state authority — he was deputized as a 

Clare County sheriff’s reserve deputy. The dispositive 

question, then, is whether Heintzelman purported to act 

under that authority. 

The word “purport” means: “1. to present, esp. 

deliberately, the appearance of being; profess or claim 

. . . . 2. to convey, express or imply.” Random House 

objective indicia of police authority, did not transform 

the personal family dispute into an action taken under

color of state law. 

Bosignore v City of New York, 683 F2d 635 (CA 2,

1982), involved an off-duty police officer who used his

police-issued revolver to shoot his wife and then commit

suicide. The wife survived and attempted to bring a claim

under 42 USC 1983. The court rebuffed her attempt, stating

simply that the officer was not acting under color of state

law since his actions in shooting his wife and committing

suicide were not committed in the performance of any actual

or pretended duty, but were personal pursuits. Id. at 638-

639. 

In Delcambre v Delcambre, 635 F2d 407 (CA 5, 1981),

the plaintiff was assaulted by her brother-in-law, who also

happened to be the police chief. The plaintiff’s § 1983

action was dismissed because the Court found that the 

altercation arose out of family and political matters and

that the plaintiff was neither arrested nor threatened with

arrest. Under the circumstances, the court found that the

family and political dispute was not conducted under color

of state law. Id. at 408. 

All the above cases involved truly personal matters.

The same cannot be said here. It was only by virtue of his

position as a governmental agent that Heintzelman was able

to question defendant at the location and time he did.

Further, given the decade that had lapsed without any

contact between the two and Heintzelman’s subsequent offer

to Lieutenant McClellan to obtain more information, any

claims that Heintzelman was solely acting out of concern

for defendant’s welfare are suspect.

8 
 

 

Webster’s College Dictionary (2d ed). The record evidence 

shows that Heintzelman visited defendant in his full 

uniform, thus creating the appearance that he was a state 

actor. Further, Heintzelman received permission from a 

corrections officer to visit defendant late at night in his 

maximum-security cell. The people conceded at oral 

argument that an ordinary citizen would not have been 

granted permission under the same circumstances. Thus, it 

was only by virtue of his status as a reserve deputy that 

Heintzelman was granted direct access to defendant’s 

maximum-security cell, a restricted area where only 

governmental agents are normally allowed to tread. 

Further, this access was granted late at night, a time when 

ordinary citizens are prohibited from visiting inmates.9 

There is no evidence that Heintzelman sought to 

distance himself from his actual or apparent police 

authority. Instead, defendant was questioned in the middle 

of the night by a sheriff’s reserve deputy (albeit one he 

had known a decade earlier) in full uniform. Indeed, 

Heintzelman’s actions during and after the questioning only 

reinforced his actual or apparent authority. During his 

9

 Again, we stress that Heintzelman’s visit to 

defendant at his maximum-security cell at 11:30 PM is 

significant not because it somehow means Heintzelman tried

to “catch defendant off guard” as suggested by the dissent,

but because only governmental agents were allowed access to

maximum-security cells, particularly at that time of night.

9 
“conversation” with defendant, Heintzelman twice brought up 

the subject of defendant’s son in an apparent attempt to 

get defendant to answer Heintzelman’s questions. Further, 

after he spoke to defendant, Heintzelman contacted the 

lieutenant in charge of the investigation, relayed the 

contents of the conversation, and offered to obtain more 

information. Finally, it is also telling that Heintzelman 

was not allowed any further contact with defendant for fear 

of violating defendant’s Sixth Amendment rights. 

The facts of this case distinguish it from United 

States v Gaddy, 894 F2d 1307 (CA 11, 1990), cited by the 

dissent. In Gaddy, the defendant’s aunt was a police 

officer. Through her position as an officer, she learned 

that the defendant was in custody. A detective advised the 

aunt that it would be in her nephew’s best interest to 

cooperate, but did not request that the aunt talk to the 

nephew. The aunt contacted the nephew from her home and 

encouraged him to speak. He agreed and spoke to officials 

after waiving his Fifth Amendment and Sixth Amendment 

rights. 

In determining that the aunt was not a state actor, 

the court noted that the aunt was not part of the 

investigative team on the defendant’s case and acted solely 

out of concern for his welfare. Id. at 1311. In contrast, 

here Heintzelman was part of the police team present for

10 
 

the recovery of the victim’s body from defendant’s former 

residence. Further, it cannot be said that Heintzelman was 

acting solely out of a concern for defendant’s welfare. He 

had not seen or spoken to defendant in ten years, and, upon 

reporting the conversation to his superior, volunteered to 

obtain more information from defendant. Thus, the lack of 

any close relationship between Heintzelman and defendant, 

along with Heintzelman’s actions after speaking to 

defendant, distinguish this case from Gaddy.10 

Taken together, the evidence shows that Heintzelman 

was possessed of state authority and purported to act under 

that authority. Therefore, under Griffin, his action is 

state action. 

B. SIXTH AMENDMENT ANALYSIS 

The next issue is whether Heintzelman’s questioning of 

defendant violated the Sixth Amendment guarantee of the 

right to counsel. In Edwards v Arizona, 451 US 477, 484; 

101 S Ct 1880; 68 L Ed 2d 378 (1981), the United States 

10 Similarly, the facts of this case distinguish it

from Cook v Georgia, 207 Ga 820; 514 SE 2d 657 (1999).

First, although the defendant’s father in Cook was an FBI 

agent, the FBI was not exercising jurisdiction over the

case—it was purely a state matter. In contrast, here

Heintzelman was not only a part of the police team present

at the recovery of the victim’s body, but was a part of the

agency that had jurisdiction over the case. Further, it

cannot be contended that Heintzelman’s relationship with

defendant, whom he had not seen or spoken to in a decade,

is akin to that of a father and son. 

11
 
Supreme Court established the bright-line rule that an 

accused, having expressed a desire to deal with the police 

only through counsel, may not be subject to further 

interrogation by the authorities until counsel has been 

made available unless the accused initiates further 

communication. The initiation of a conversation related to 

the investigation, standing alone, is insufficient to 

establish a waiver of the previously asserted right to 

counsel. We incorporated the Edwards rule in People v 

Paintman, 412 Mich 518; 315 NW2d 418 (1982), and the 

Edwards rule was extended to Sixth Amendment claims in 

Michigan v Jackson, 475 US 625; 106 S Ct 1404; 89 L Ed 2d 

631 (1986). 

It is important to note that the Sixth Amendment may 

be violated by questioning that does not rise to the level 

of the custodial interrogation required under the Fifth 

Amendment. In Fellers v United States, 540 US ___; 124 S 

Ct 1019; 157 L Ed 2d 1016 (2004), a unanimous Supreme Court 

clarified that “an accused is denied ‘the basic 

protections’ of the Sixth Amendment ‘when there [is] used 

against him at his trial evidence of his own incriminating 

words, which federal agents . . . deliberately elicited 

from him after he had been indicted and in the absence of 

counsel.’” Id. at 4, citing Massiah v United States, 377 

US 201, 206; 84 S Ct 1199; 12 L Ed 2d 246 (1964). The 

12 
Court continued: “We have consistently applied the 

deliberate-elicitation standard in subsequent Sixth 

Amendment cases . . . and we have expressly distinguished 

this standard from the Fifth Amendment custodialinterrogation standard . . . .” Id. This is consistent 

with the Court’s holding in Michigan v Jackson, supra at 

632 n 5, that the Sixth Amendment provides a right to 

counsel even when there is no interrogation and no Fifth 

Amendment applicability. 

 Even under Edwards, however, the initiation of any 

verbal exchange with governmental agents is insufficient to 

permit further questioning. In Oregon v Bradshaw, 462 US 

1039; 103 S Ct 2830; 77 L Ed 2d 405 (1983), a four-justice 

plurality ruled that communications were “initiated” for 

purposes of the Edwards rule by conversation that 

“represent[s] a desire on the part of an accused to open up 

a more generalized discussion relating directly or 

indirectly to the investigation.” Id. at 1045. The 

dissenting justices would have defined “initiation” even 

more narrowly as a communication or dialog about the 

subject matter of the investigation. Pursuant to Bradshaw, 

the defendant must initiate communication concerning the 

13
 
 

investigation in order to avoid running afoul of the rule 

articulated in Edwards.11 

We hold that Heintzelman’s questioning of defendant 

violated the Edwards rule, as clarified in Bradshaw.12 Even 

solely reviewing Heintzelman’s testimony regarding his 

conversation with defendant, there is no proof evincing a 

desire on the part of defendant to pursue a discussion 

relating directly or indirectly to the investigation. 

Defendant merely initiated a social visit with his old 

friend and neighbor. It was Heintzelman, not defendant, 

who initiated all questioning relating to the investigation 

and charges against defendant for the murder of Randy 

Laufer. 

In fact, Heintzelman testified that he tried at least 

four separate times to initiate questioning regarding the 

investigation: (1) he initially volunteered that 

defendant’s son was also incarcerated, but defendant did 

not respond; (2) Heintzelman expressly asked defendant if 

11 Further, even if a defendant initiates a 

conversation related to the investigation, the state must

still establish that the defendant made a voluntary,

knowing, and intelligent waiver of his right to have 

counsel present at questioning under the totality of the

circumstances. Bradshaw at 1046. 

12 Indeed, the people conceded at oral argument that if

Heintzelman was a state actor, the admission of defendant’s

statements to Heintzelman violated defendant’s Sixth 

Amendment rights. 

14 
 

he did what he was charged with, and again defendant did 

not respond; (3) Heintzelman told defendant that the police 

thought defendant’s son was involved in the murder, at 

which point defendant responded that “if they try to pin it 

on [my son], I’ll let ‘em fry my ass”; and (4) Heintzelman 

again expressly asked defendant if he committed the murder, 

and defendant responded “Dean, it was bad. It was bad.” 

Thus, not only did defendant not demonstrate any desire to 

talk about the subject of the investigation, he failed or 

refused to answer Heintzelman’s first two questions 

regarding the murder. It was only when Heintzelman 

continued to press defendant that defendant finally 

answered. Because defendant did not demonstrate a desire 

to discuss matters directly or indirectly related to the 

investigation, Heintzelman’s questioning was in violation 

of defendant’s Sixth Amendment rights.13 

CONCLUSION 

We hold that Heintzelman was a state actor and 

deliberately elicited incriminating statements from 

defendant in violation of the bright-line rule, established 

13 We clarify that we do not hold, as the dissent

suggests, that a sheriff’s reserve deputy may never ask a 

friend about a crime without running afoul of the Sixth

Amendment. Rather, we hold only that if, at the time of

the questioning, that sheriff’s reserve deputy is a state

actor and questions the defendant in violation of the

Edwards rule as clarified in Bradshaw, that questioning

violates the Sixth Amendment. 

15
 
in Edwards and clarified in Bradshaw, that protects a 

defendant against any subsequent government-initiated 

questioning following the exercise of the defendant’s Sixth 

Amendment rights. Heintzelman both possessed actual state 

authority and purported to act under that authority; 

therefore, his action is considered state action. Although 

defendant may have asked to speak with Heintzelman, at no 

point did defendant express a desire to discuss subjects 

directly or indirectly related to the investigation. 

Therefore, defendant’s statements in response to 

Heintzelman’s questioning regarding the murder should not 

have been admitted at trial. We have already determined 

that the error was not harmless beyond a reasonable doubt; 

therefore, we reverse the decision of the Court of Appeals 

and remand for a new trial. 

Maura D. Corrigan

Michael F. Cavanagh

Marilyn Kelly

Clifford W. Taylor

Robert P. Young, Jr. 

16
 
_______________________________ 

v 

S T A T E O F M I C H I G A N 

SUPREME COURT 

PEOPLE OF THE STATE OF MICHIGAN, 

Plaintiff-Appellee, 

No. 121300 

JOHN RODNEY MCRAE, 

Defendant-Appellant. 

MARKMAN, J. (dissenting). 

I respectfully dissent. The majority is reversing 

defendant's conviction of first-degree murder on the ground 

that the trial court erred in admitting a statement that 

defendant made to Dean Heintzelman, defendant’s former 

neighbor and friend, who happens to volunteer as a parttime, reserve police officer. Specifically, the majority 

concludes that this admission violated defendant’s Sixth 

Amendment right to counsel. I strongly disagree. In my 

judgment, defendant’s Sixth Amendment right to counsel was 

not violated because, when Heintzelman spoke to defendant, 

he was acting as a friend, not as a police officer. Thus, 

there was no governmental action and, therefore, no 

violation of defendant’s Sixth Amendment right to counsel. 

Accordingly, I would affirm the judgment of the Court of 

Appeals. 
 

 

 

 

 

I. FACTS AND PROCEDURAL HISTORY 

Defendant was arrested and charged with first-degree 

murder. The police advised defendant of his Miranda1 

rights, and defendant told the police that he did not wish 

to answer any questions without his attorney present. 

While defendant was incarcerated awaiting trial, he 

requested a visit from his former neighbor and friend, Dean 

Heintzelman. Heintzelman owns an excavating company and in 

his spare time volunteers as a part-time, reserve officer.2 

According to Heintzelman, the visit began by defendant 

talking about and showing Heintzelman pictures of his son 

and his son’s wife and baby.3 At some point, Heintzelman 

asked defendant whether he committed the murder with which 

he was charged. Defendant did not answer. After further 

conversation, Heintzelman again asked defendant if he was 

involved in the murder. Defendant hung his head and said, 

“It was bad, Dean. It was bad.” 

Defendant brought a motion to suppress Heintzelman’s 

testimony regarding this statement, alleging that the 

1 Miranda v Arizona, 385 US 436; 86 S Ct 1602; 16 L Ed

2d 694 (1966). 

2

 When defendant initially requested this visit, he did

not know that Heintzelman was a reserve police officer.

However, Heintzelman had just finished transporting a 

prisoner before he came to visit defendant and, thus, was

wearing his police uniform during his visit with defendant.

3 An inmate who was present during this visit also

testified that defendant and Heintzelman’s conversation 

began with defendant talking about his family.

2 
 

 

 

 

 

statement was obtained in violation of his Fifth Amendment 

right to be free from compelled self-incrimination and his 

Sixth Amendment right to counsel. The trial court denied 

defendant’s motion to suppress. Following a jury trial, 

defendant was convicted of first-degree murder. The Court 

of Appeals affirmed, concluding that, even if the admission 

of the statement was error, it was harmless error.4 This 

Court then vacated the Court of Appeals judgment in part, 

concluding that, if there was error, the error was not 

harmless beyond a reasonable doubt.5 On remand, the Court 

of Appeals again affirmed, concluding that the trial court 

did not abuse its discretion in admitting the statement.6 

II. STANDARD OF REVIEW 

Constitutional issues are reviewed de novo, while 

findings of fact are reviewed for clear error. People v 

LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). “The 

decision whether to admit evidence is within the trial 

court's discretion and will not be disturbed absent an 

abuse of that discretion.” People v McDaniel, 469 Mich 

409, 412; 670 NW2d 659 (2003). 

4 Unpublished opinion per curiam, issued January 12,

2001 (Docket No. 217052). 

5 465 Mich 874 (2001). 

6 Unpublished opinion per curiam, issued February 12,

2002 (Docket No. 217052). 

3
 
 

 

 

 

III. ANALYSIS 

After a defendant has been indicted, his Sixth 

Amendment right to assistance of counsel attaches. Massiah 

v United States, 377 US 201, 206; 84 S Ct 1199; 12 L Ed 2d 

246 (1964).7 Accordingly, a defendant’s incriminating 

statements, deliberately elicited by governmental agents 

after the defendant has been indicted and in the absence of 

defendant’s counsel, are not admissible at trial unless the 

defendant himself initiated the conversation concerning the 

investigation with the governmental agents. Michigan v 

Jackson, 475 US 625; 106 S Ct 1404; 89 L Ed 2d 631 (1986). 

The Sixth Amendment right to counsel is broader than the 

Fifth Amendment right to counsel in the sense that the 

Sixth Amendment provides a right to counsel beyond 

custodial interrogations. Fellers v United States, 540 US 

___; 124 S Ct 1019; 157 L Ed 2d 1016 (2004). 

However, “[c]onstitutional protections apply to 

governmental action only . . . .” Grand Rapids v Impens, 

414 Mich 667, 673; 327 NW2d 278 (1982). Therefore, one 

acting as a private individual, rather than as a 

governmental actor, cannot violate an accused’s Sixth 

Amendment right to counsel. Further, merely because a 

“In all criminal prosecutions, the accused shall

enjoy the right to . . . have the Assistance of counsel for

his defense.” US Const, Am VI. See also Const 1963, art

1, § 20. 

4 

7 
 

 

person may, in some instances, be considered a governmental 

actor, does not mean that this person is always a 

governmental actor. See Polk Co v Dodson, 454 US 312, 324-

325; 102 S Ct 445; 70 L Ed 2d 509 (1981)(although a public 

defender is considered a state actor when performing some 

official duties, he is considered a private actor when he 

is representing a criminal defendant). Accordingly, not 

every act performed by an individual who happens to be a 

police officer constitutes state action. See, e.g., Barna 

v Perth Amboy, 42 F3d 809, 817 (CA 3, 1994)(an off-duty 

police officer who used his night stick in a fight was not 

a state actor); Bonsignore v City of New York, 683 F2d 635, 

638-639 (CA 2, 1982)(an off-duty police officer’s use of a 

police revolver to shoot his wife was not state action); 

Delcambre v Delcambre, 635 F2d 407, 408 (CA 5, 1981)(an onduty police officer’s assault of the plaintiff at a police 

station was not state action because it arose out of a 

personal dispute and the officer neither arrested nor 

threatened to arrest the plaintiff); United States v 

McGreevy, 652 F2d 849, 851 (CA 9, 1981)(a police officer 

who opened a package while working for Federal Express was 

not a state actor).8 

8

 The majority observes that all the cases that I cite

are distinguishable from the instant case. If, by this

observation, the majority means that none of these cases

5 
 

 In United States v Gaddy, 894 F2d 1307 (CA 11, 1990), 

the defendant’s aunt, who happened to be a police officer, 

persuaded the defendant to confess to the police. The 

United States Court of Appeals for the Eleventh Circuit 

concluded that she was acting as the defendant's aunt, not 

as a state actor, because she was not part of the 

investigative team on her nephew’s case, she was not 

directed by a superior to contact her nephew, there was no 

evidence that she was acting in the normal course of her 

duties when she initiated contact with her nephew, and she 

involves a former neighbor and friend who happens also to

be a part-time, volunteer, reserve police officer, then I

agree. However, the majority has likewise failed to cite

any case in support of its own conclusions that involves a

former neighbor and friend who happens also to be a parttime, volunteer, reserve police officer. The majority's

response to this dissent constitutes nothing more than a

recognition that the circumstances of the instant case are

unusual ones. What the cases that I cite do stand for is 

the proposition that not everything that a person who is a

police officer does constitutes state action. 

The majority further criticizes some of these cases on

the ground that they address whether conduct constitutes 

state action for the purpose of 42 USC 1983, while the

issue here is whether Heintzelman’s conduct constitutes 

state action for the purpose of the Sixth Amendment. 

However, the United States Supreme Court has stated that,

if conduct constitutes state action for the purpose of the

Constitution, it necessarily constitutes state action for

the purpose of § 1983. Brentwood Academy v Tennessee 

Secondary School Auth Assoc, 531 US 288, 295 n 2; 121 S Ct

924; 148 L Ed 2d 807 (2001). Contrary to the majority’s

contention, the United States Supreme Court has held that

the opposite is also true. Nat’l Collegiate Athletic Ass’n 

v Tarkanian, 488 US 179, 182 n 4; 109 S Ct 454; 102 L Ed 2d

469 (1988)(“the under-color-of-law requirement of 42 U.S.C.

§ 1983 and the state-action requirement of the Fourteenth

amendment are equivalent”). 

6
 

 

 

 

 

 

 

made no written report following her communication with her 

nephew.9 

The facts of the instant case are similar, but even 

more compelling. Heintzelman was not acting in the normal 

course of his duties when he talked with defendant—his 

normal duties included transporting prisoners, not 

questioning them; Heintzelman's duties as a part-time, 

reserve police officer were entirely noninvestigative in 

nature;10 Heintzelman was not part of the investigative team 

on defendant’s case;11 Heintzelman was not directed by a 

superior or anyone else to contact defendant; Heintzelman 

was requested by defendant himself to speak with him; 

Heintzelman was not acting under the direction of the 

investigating police officers; Heintzelman was not acting 

in concert with the investigating police officers; 

9 The Georgia Supreme Court looked at these same

factors in concluding that the defendant’s father, who

happened to be an FBI agent, acted as a father, not as a

state actor, when he asked his son if he had shot the

victim. Cook v Georgia, 270 Ga 820; 514 SE 2d 657 (1999). 

10 When asked what his duties as a reserve police

officer included, Heintzelman responded: “I go on 

transport, transport prisoners. We take care of ball 

games, do security at ball games. We help with visitation

at the jail. That sort of stuff.” 

11 Although, as the majority states, Heintzelman “was 

part of the police team present for the recovery of the

victim’s body from defendant’s former residence,” ante at 

10-11, he was there, not in any sort of investigative

capacity, but simply as a volunteer to help guard the scene

until the state police forensic team arrived.

7 
 

 

 

Heintzelman asked no follow-up questions of defendant as 

would have any other minimally trained investigative 

officer; and Heintzelman made no written report following 

his conversation with defendant.12 

The majority cites Griffin v Maryland, 378 US 130, 

135; 84 S Ct 1770; 12 L Ed 2d 754 (1964), for the 

proposition that “[i]f an individual is possessed of state 

authority and purports to act under that authority, his 

action is state action.” I agree that whether Heintzelman 

purported to act under state authority is the dispositive 

question. 

In Griffin, an amusement park employee identified 

himself as a deputy sheriff and ordered the petitioners to 

leave the amusement park. By identifying himself as a 

state officer and ordering the petitioners to leave the 

park, he clearly purported to act under state authority 

and, thus, his action was effectively state action. 

Unlike the officer in Griffin, Heintzelman did not 

purport to act under state authority. Rather, he purported 

to do nothing more than act as a friend. He came to see 

12 Although the prosecutor further asserted at oral

argument that Heintzelman did not report anything about his

conversation with defendant to the investigating officers

until nearly a week after it occurred, I can find no

confirmation of this fact in the record. However, the

record is similarly bereft of evidence that this 

conversation was promptly reported to the investigating

officers. 

8
 
 

 

defendant at defendant’s request, he spoke to defendant 

about their families, and he asked defendant, as a friend 

might do when his friend has been accused of murder, what 

was going on. Further evidence that Heintzelman was acting 

as a friend, not as a police officer, is that when 

Heintzelman asked defendant if he was involved and 

defendant said, “Dean, it was bad,” rather than pressing 

defendant for further evidence of guilt, as anyone acting 

as a police officer would certainly do, he simply left. 

Heintzelman behaved, not as a police officer would, but as 

a disappointed friend would when confronted with an 

incriminating statement made by one’s friend concerning a 

heinous murder.13 

The majority’s conclusion that Heintzelman acted as a 

state actor when he spoke with defendant is based entirely 

13 The majority states that the fact that after 

Heintzelman was confronted with defendant’s incriminating

statement, he “offered to obtain more information” from

defendant evidences that Heintzelman was acting, not as a

friend, but as a state actor when he spoke with defendant.

Ante at 10. If Heintzelman had, in fact, spoken with

defendant as he offered to do, this would certainly be

relevant in determining whether the subsequent conversation

with defendant constituted state action. However, the fact

that Heintzelman, after being confronted with defendant’s

incriminating statement, decided that he would be willing

to speak to defendant in order to help the investigating

officers, sheds no light on whether Heintzelman went to see

defendant in the first place as a governmental agent or as

a friend. Indeed, if anything, Heintzelman's offer of

future assistance to the officers implies that his initial

conversation with defendant had a different purpose.

9 
 

 

on the fact that Heintzelman served as a part-time, 

reserve police officer, and that when he spoke with 

defendant it was late at night and he was wearing a police 

uniform. As explained above, not everything a police 

officer does, regardless of when it is done and regardless 

of the circumstances under which it is done, constitutes 

state action. Not even everything a police officer, who 

happens to be uniformed, does constitutes state action. 

That Heintzelman happened to be wearing a uniform when he 

spoke with defendant does not transform Heintzelman’s 

personal actions into state actions.14 Likewise, the fact 

that their conversation took place after normal visiting 

hours does not transform Heintzelman’s personal 

conversation with defendant into state action.15 

14 Heintzelman was wearing a uniform, not because he

was attempting to intimidate defendant, or to communicate

his public authority, but because he came to visit 

defendant at defendant's request at a time when he happened

to be in uniform. 

15 Heintzelman visited defendant at around 11:00 P.M.,

not because he was attempting to catch defendant off guard,

but because he happened to be at the jail where defendant

was incarcerated at that time since he had just finished

transporting a prisoner there. The majority states that

the fact that their conversation took place so late is

relevant because only governmental agents would have had 

access to defendant at that time of night. However, that

this conversation took place several hours before or after

normal visiting hours does not transform this private

conversation into state action. That the police officer in

Barna only had access to a police-issued night stick 

because he was a police officer, did not make his use of

10 
 

Apparently, the majority would have no problem 

admitting defendant’s statement to Heintzelman if 

Heintzelman had first gone home, changed his clothes, and 

come back the next morning to speak with defendant. 

However, in my judgment, it is difficult to comprehend the 

significance the majority gives these factors in 

determining whether a jury will or will not have access to 

defendant's statement. 

IV. CONCLUSION 

The majority has concluded that someone who happens to 

have volunteered as a part-time, reserve police officer 

cannot ask a friend about a crime with which he has been 

charged without running afoul of the Sixth Amendment.16 As 

a result, a clearly incriminating statement made about a 

brutal murder—a statement made voluntarily and fully in 

this night stick in a fight state action, just as the fact

that the officer in Bonsignore only had access to a policeissued revolver because he was a police officer did not

make his use of this revolver to shoot his wife state 

action. 

16 The majority rejects this characterization of its

holding, and replies that it is merely concluding that a

part-time, reserve police officer can never ask a friend

about a crime only while acting as a state actor. Of 

course, such a reply is a mere tautology since the very

issue before this Court is whether Heintzelman was a state 

actor. The majority's references to Edwards and Bradshaw 

are similarly circular. To repeat, under the majority's

analysis, a part-time, reserve police officer would not be

able to ask a friend about a crime with which he has been 

charged without running afoul of the Sixth Amendment.

11 
 

 

compliance with the requirements of Miranda v Arizona17—is 

to be excluded from the justice system. And defendant's 

jury of peers—tasked with carrying out one of the gravest 

responsibilities of citizens in a democracy, determining 

the truth of a criminal charge—will be required to carry 

out this responsibility while being deprived of a 

compelling piece of evidence, freely given words from 

defendant's own mouth. 

When all the facts are considered, it is clear that 

Heintzelman spoke to defendant as a friend, not as a 

governmental actor and, thus, Heintzelman could not have 

violated defendant’s Sixth Amendment right to counsel. 

Therefore, I would affirm the judgment of the Court of 

Appeals. 

Stephen J. Markman

Elizabeth A. Weaver 

17 By stating that there was no Miranda violation, I am

not implying that compliance with Miranda was required.

Indeed, for the same reason that I conclude that 

defendant’s Sixth Amendment right to counsel was not 

violated—there was simply no state action—I would also

conclude that his Fifth Amendment right was not violated.

The reference to Miranda is simply to underscore the utter

lack of coercion surrounding the statement that the 

majority is suppressing. 

12