
    PEOPLE v CLARK
    Docket No. 68962.
    Submitted January 11, 1983, at Lansing.
    Decided July 11, 1983.
    Dean L. Clark was convicted of armed robbery following a jury trial in Oakland Circuit Court, Richard D. Kuhn, J. At trial, defendant testified. The prosecution thereafter wished to offer in rebuttal the testimony of a police officer relative to statements made by the defendant to the officer at the time of his arrest which were at variance with the testimony given by defendant at trial. The statements of defendant had been made after defendant had been advised of his rights, had acknowledged understanding of those rights, and had indicated that he wished to speak to an attorney before answering any questions. Following an evidentiary hearing, the trial court determined that the prosecution could utilize the testimony relative to defendant’s statements for impeachment purposes. Defendant appealed and the Court of Appeals affirmed. Docket No. 48218, unpublished opinion of February 12, 1981. Defendant sought leave to appeal to the Supreme Court. In lieu of granting leave to appeal, the Supreme Court vacated the judgment of the Court of Appeals and remanded the case to the Court of Appeals "for reconsideration in light of People v Paintman, 412 Mich 518 (1982), and Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981)”. 417 Mich 851 (1982). Held:
    
    The testimony relative to the statements made by defendant was properly admitted for impeachment purposes. The Supreme Court of the United States has held that a statement which is voluntarily given may be used for impeachment purposes even if such statement is not admissible in the prosecution’s case in chief by reason of being secured after the invoking of the right to consult an attorney. There is no controlling authority holding that the Michigan Constitution requires more than the federal constitution as interpreted by the United States Supreme Court.
    
      References for Points in Headnotes
    
       29 Am Jur 2d, Evidence § 556.
    
       81 Am Jur 2d, Witnesses §§ 527, 596 et seq.
    
    Propriety of using otherwise inadmissible statement, taken in violation of Miranda rule, to impeach criminal defendant’s credibility —state cases. 14 ALR4th 676.
    
       16 Am Jur 2d, Constitutional Law § 13.
    
      Affirmed.
    1. Criminal Law — Impeachment — Voluntary Statements.
    A voluntary statement by a defendant which is not admissible in the case in chief because it was made during interrogation initiated by a police officer after the defendant had requested a lawyer may be used to impeach the defendant’s testimony at his trial.
    2. Constitutional Law — Suppression of Evidence — Michigan Constitution — Federal Constitution.
    There is no binding authority holding that the Michigan Constitution requires exclusion from evidence of voluntary statements made by a criminal defendant after he had requested an attorney where such statements would be admissible under the federal constitution as interpreted by the United States Supreme Court.
    
      Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Richard H. Browne, Assistant Prosecuting Attorney, for the people.
    
      Keller & Avadenka, PC. (by Frances R. Avadenka), for defendant.
    Before: D. E. Holbrook, Jr., P.J., and M. J. Kelly and Mackenzie, JJ.
   Mackenzie, J.

After a jury trial, defendant was convicted of armed robbery, MCL 750.529; MSA 28.797. Defendant was sentenced to imprisonment for 20 to 60 years and appealed by right. This Court affirmed defendant’s conviction, Docket No. 48218, unpublished opinion of February 12, 1981, and defendant filed with the Supreme Court a letter application for review of his conviction pursuant to Administrative Order 1977-4, 400 Mich lxvii. In lieu of granting leave to appeal, the Supreme Court vacated this Court’s judgment and remanded the case to this Court for reconsideration in light of People v Paintman, 412 Mich 518; 315 NW2d 418 (1982), and Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981). 417 Mich 851 (1982).

At issue is testimony concerning statements defendant made to the police which were admitted, not in the prosecution’s case in chief but in rebuttal, to impeach defendant’s credibility by showing that he made prior statements inconsistent with his testimony. It is well-settled that, even assuming that the statements were obtained in violation of the rule stated in Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), the statements could be used for impeachment purposes. Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971); Oregon v Hass, 420 US 714; 95 S Ct 1215; 43 L Ed 2d 570 (1975). However, in People v Esters, 417 Mich 34; 331 NW2d 211 (1982), a case affirmed by an equally divided Court, three justices declined to apply Harris and Hass to a violation of the rule stated in Paintman and Edwards.

I

In his opinion for reversal in Esters, supra, Justice Williams drew the following distinction:

"In Harris, supra, the Supreme Court allowed a statement made by a defendant who had not been advised of his right to appointed counsel in violation of Miranda to be used for impeachment purposes. Unlike Harris, the Edwards decision concerned a defendant who had not only been advised of his Miranda rights, but who had invoked his right to have counsel present. Harris is therefore distinguished.” 417 Mich 63.

However, this distinction was rejected in Oregon v Hass. See, for example, the Court’s statement of the issue:

"This case presents a variation of the fact situation encountered by the Court in Harris v New York, 401 US 222 (1971): When a suspect, who is in the custody of a state police officer, has been given full Miranda warnings and accepts them, and then later states that he would like to telephone a lawyer but is told that this cannot be done until the officer and the suspect reach the station, and the suspect then provides inculpatory information, is that information admissible in evidence solely for impeachment purposes after the suspect has taken the stand and testified contrarily to the inculpatory information, or is it inadmissible under the Fifth and Fourteenth Amendments?” (Footnote omitted.) 420 US 714-715.

Like Edwards, Hass had invoked his right to counsel. See also Mincey v Arizona, 437 US 385, 397-403; 98 S Ct 2408; 57 L Ed 2d 290 (1978). For a recent decision in which defendant’s statements were held admissible for impeachment purposes despite a violation of the Edwards rule, see United States v Hinckley, 672 F2d 115, 118, 134, fn 119 (CA DC, 1982). For other cases in which defendant’s statements were held admissible for impeachment purposes despite violations of defendant’s right to counsel, see United States v Frank, 520 F2d 1287, 1291 (CA 2, 1975), United States v Taxe, 540 F2d 961, 968-969 (CA 9, 1976), United States v McManaman, 606 F2d 919, 924-925 (CA 10, 1979), People v Ricco, 56 NY2d 320; 452 NYS2d 340; 437 NE2d 1097 (1982), and State v Cody, 323 NW2d 863 (SD, 1982).

Moreover, the Harris decision placed considerable reliance on Walder v United States, 347 US 62; 74 S Ct 354; 98 L Ed 503 (1954), a case in which the Court held that evidence obtained as the result of an illegal search and seizure was admissible for impeachment purposes. The use of this analogy in Harris suggests that the Harris rule is to be construed broadly.

In his opinion for reversal in Esters, supra, p 64, Justice Williams also attempted to distinguish Harris from Edwards on the baiss of the following language in Edwards, supra, 451 US 484:

"Schneckloth [v Bustamonte, 412 US 218, 226; 93 S Ct 2041; 36 L Ed 2d 854 (1973)] itself thus emphasized that the voluntariness of a consent or an admission on the one hand, and a knowing and intelligent waiver on the other, are discrete inquiries. Here, however sound the conclusion of the state courts as to the voluntariness of Edwards’ admission may be, neither the trial court nor the Arizona Supreme Court undertook to focus on whether Edwards understood his right to counsel and intelligently and knowingly relinquished it. It is thus apparent that the decision below misunderstood the requirement for finding a valid waiver of the right to counsel, once invoked.”

This language from Edwards does not support a conclusion that Harris and Hass do not apply when the rule stated in Edwards is violated. In Edwards, the lower courts erred by holding that defendant’s statement was admissible because it was voluntary without regard to whether defendant’s waiver of the right to counsel was voluntary, but it is the voluntariness of defendant’s statement which determines whether it is admissible under Harris and Hass for impeachment purposes. See Mincey v Arizona, supra.

In view of the foregoing, we agree with Justice Coleman, who held in her opinion in Esters, supra, that Harris and Hass apply as a matter of federal constitutional law to statements obtained in violation of the rule stated in Edwards and Paintman.

II

Justices Kavanagh and Levin stated that they would, on Michigan constitutional grounds, join in the conclusion reached by Justice Williams. Because the opinion of Justice Williams contains no reference to the Michigan Constitution or to any case decided on Michigan constitutional grounds, it is not clear whether Justice Williams shares their view of the Michigan Constitution. However, as only three justices at the most have adopted this view of the Michigan Constitution, no binding precedent has been established.

Harris and Hass state an exception to the federal constitutional rule established in Miranda and explained and refined in Edwards. There is no authority holding that the Michigan Constitution requires the results reached in Miranda and Edwards. See People v Belanger, 120 Mich App 752, 761; 327 NW2d 554 (1982). Absent such authority, it is difficult to understand how the Michigan Constitution can require an exception to the rule stated in Harris and Hass for statements obtained in violation of the rule stated in Edwards.

In Harris, supra, 401 US 225-226, the Court explained its reasoning as follows:

"The impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner’s credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.
"The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.”

We see nothing in the Michigan Constitution which casts doubt on the validity of this reasoning. We see nothing in the Michigan Constitution or in Edwards which suggests a reason for a different result when the Edwards rule is violated. Accordingly, we find that the use of defendant’s prior inconsistent statement for impeachment purposes was not error.

Affirmed.  