**_______________________________** Michigan Supreme Court Lansing, Michigan 48909

Chief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

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. F**  **ACTUAL H**  **ISTORY AND P**  **ROCEDURAL P**  **OSTURE 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** Miranda 2 **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. A fter 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. S**  **TANDARD OF R**  **EVIEW 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. D**  **ISCUSSION A.**  **S TATE**  **A CTOR**  **A NALYSIS**  **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 state**  **** **action 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 o f police a**  **uthority, 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.**  8Webster’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. S**  **IXTH A**  **MENDMENT A**  **NALYSIS 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 custodial**  **** **interrogation 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**

**C ONCLUSION**  **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 part**  **** **time, 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. F**  **ACTS AND P**  **ROCEDURAL H**  **ISTORY Defendant was arrested and charged with first-degree**  **murder. The police advised defendant of his** Miranda 1 **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. S**  **TANDARD OF R**  **EVIEW 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. A**  **NALYSIS 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 on**   ** duty 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 n eighbor 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 part**  **** **time, volunteer, reserve police offi cer. 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. C**  **ONCLUSION 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 police**   ** issued 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 Arizona **17 —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, Heintz elman 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