PEOPLE v. ELLIOTT

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Court of Appeals of Michigan.

PEOPLE v. ELLIOTT.

Docket No. 301645.

-- March 08, 2012

Before:  BECKERING, P.J., and OWENS and SHAPIRO, JJ. Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Henry C. Zavislak, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people. Patrick K. Ehlmann, East Lansing, for defendant.

Defendant, Samuel Lee Elliott, appeals as of right his conviction by a jury of armed robbery, MCL 750.529.   The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 15 to 30 years' imprisonment.

The police arrested defendant for violating his parole after receiving information that he had committed a robbery.   The police advised defendant of his Miranda 1 rights and interrogated him.   Defendant ultimately invoked his right to counsel, and the interrogation ended.   Three days later, a parole officer served defendant with parole-violation charges while defendant was still in jail.   The parole officer did not advise defendant of his Miranda rights before asking him for his statement regarding the robbery charge.   Defendant told the parole officer that he committed the robbery.   Defendant's confession to the parole officer was admitted during his trial, after which he was convicted of the charged offense.   At issue in this case is whether the trial court erred when it denied defendant's motion to suppress his statements to the parole officer and, if so, whether the error was harmless.   We reverse and remand for a new trial.

I. FACTS AND PROCEDURAL HISTORY

On June 16, 2010, a man entered an Admiral gas station at about 3:15 a.m. and asked the cashier for a pack of Marlboro Reds cigarettes.   The man then told the cashier that he had a gun and that the cashier needed to give him the money from the register.   The man wore a University of Michigan fleece pullover and a University of Michigan hat.   The cashier noticed what appeared to be a handgun protruding from the waistband of the man's shorts.   The cashier gave the man the pack of cigarettes and $157 from the register, including a marked $2 bill.   The man then left the gas station.

The next day, defendant's brother contacted the police and told them that defendant had robbed the gas station.   The police arrested defendant later that day for violating his parole and took him to the Jackson County Jail. The police then searched the residence where defendant was staying and obtained a hat and fleece pullover purportedly belonging to defendant that matched those worn by the robber.   On June 18, 2010, detectives went to the jail, advised defendant of his Miranda rights, and interrogated him about the robbery.   Defendant answered several questions, stated that he did not rob the gas station, and then invoked his right to an attorney, at which point the interrogation ended.

On June 21, 2010, Cheryl Evans, a parole officer, went to the jail to “serve [defendant] parole violation charges and get his statement” regarding the robbery.   Before meeting with defendant, Evans received the police report and spoke with Detective Ed Smith about the fact that defendant was a suspect for the armed robbery of the gas station.   A deputy escorted defendant from his jail cell to the jail library, where Evans interviewed him.   Evans did not read defendant his Miranda rights.   Evans served defendant with his parole-violation charges relating to the robbery and asked defendant for his statement regarding the robbery.   According to Evans, defendant told her that he robbed the gas station.   After the interview, Evans called Smith and informed him that defendant had confessed to the robbery.   On June 24, 2010, defendant was arraigned on the charge of armed robbery.

On the first day of trial, but before jury selection, defendant moved to suppress the statements that he had made to Evans on June 21, 2010.   Defense counsel stated that “the main issue” with respect to the motion was whether a parole officer constitutes a law enforcement officer for Fifth Amendment purposes.   Defense counsel argued as follows, in pertinent part:

My argument, Judge, is that un-Mirandized statements obtained by Cheryl Evans, a parole agent, in the jail is an inherently coercive custodial condition, which is envisioned by Miranda.   And that's the type of situation where ․ in order for the statements to come in as evidence ․ you need to have advised the suspect of his Miranda warnings and his right to counsel and everything that comes along with it.

 *   *   *

․ I believe that Cheryl Evans was acting as an agent of the government.   There's a special relationship between her and Sam Elliott and, to make it even worse, it was in the jail.   He was under arrest;  he'd been there since the seventeenth.

 *   *   *

Now, I know that the police advised him of his rights back on the eighteenth in this case, three days before.   But he invoked his rights then and I don't think you can keep coming back․ Once you invoke your rights, questioning must stop.   It did here, but then [Evans] came back, and I don't think you can come back again and start re-questioning where there has been an invocation of your constitutional right to counsel.

The prosecutor emphasized that under this Court's decision in People v. Littlejohn, unpublished opinion per curiam of the Court of Appeals, issued September 11, 1998 (Docket No. 195286), 1998 WL 1989939, a parole officer is not a law enforcement officer for purposes of Miranda.   The prosecutor argued that defendant's statements to Evans were admissible because Evans was not working in concert with the police, but was interviewing defendant as a parole officer.   Smith then testified about the nature of his conversation with Evans before she interviewed defendant:  “The gist of our conversation was [Evans] asked ․ whether or not there was anything she could not bring up during her conversation with [defendant] and I told her no, that he had invoked his rights and I would not be speaking with him again.”   Smith testified that this was the only conversation he had with Evans about the case before Evans interviewed defendant.   Smith further testified that he was not aware of any other officers talking to Evans about the case or asking Evans to try and obtain information from defendant.

The trial court stated that the Miranda issue before it was “very unclear from the precedent that's out there.”  “There's a patchwork of law out there.   There's nothing definitive on this position.”   The trial court then analyzed the motion to suppress under Littlejohn and concluded that defendant's statements to Evans were admissible:

Looking at People v. Littlejohn, Number 195286, although it's not a ․ published case, it does state that:

“The parole officer testified she was not a police officer or a certified law enforcement officer․ Said she was acting independently from the police and that her only reason for speaking to the defendant was to advise him of the parole violation charges, to advise him of his rights for a preliminary hearing on those charges, and to determine if he would agree to waive the hearing.   Under these circumstances, we conclude that the parole officer was not a law enforcement official.”

And that's really the main question:  is a parole officer acting in this capacity, not in concert with the law enforcement—a law enforcement official.

 *   *   *

Based on the guidance from People v. Littlejohn and the circumstances outlined within that case, the Court's going to find that the parole officer was not acting in concert and the testimony I've heard here and the stipulated facts was not acting in concert with the police.   She was there to advise [defendant] of the charges. The information she obtained previously was to understand what was going on so that she could advise [defendant] of the parole violation charges.   And, under these circumstances, she was not ․ a law enforcement official and, therefore, the confession will come in.   The statements made ․ to her will come in.

Evans testified at trial that defendant confessed to committing the robbery.   Following his conviction, the trial court sentenced defendant as a fourth-offense habitual offender to 15 to 30 years' imprisonment.2  Defendant now appeals as of right.

II. SUPPRESSION OF STATEMENTS TO PAROLE OFFICER

Defendant argues that the trial court erred when it denied his motion to suppress his statements to Evans because as a parole officer, Evans was a law enforcement officer for purposes of Miranda who subjected him to a custodial interrogation after he had invoked his right to counsel three days earlier.   We agree.

A. STANDARD OF REVIEW

When we review a trial court's factual findings with respect to a motion to suppress, we defer to the trial court unless the court's findings are clearly erroneous.  People v. Herndon, 246 Mich.App. 371, 395, 633 N.W.2d 376 (2001).   A finding is clearly erroneous if this Court is “left with a definite and firm conviction that a mistake has been made.”  People v. Muro, 197 Mich.App. 745, 747, 496 N.W.2d 401 (1993).   We review de novo a trial court's ultimate decision on a motion to suppress.  People v. Lapworth, 273 Mich.App. 424, 426, 730 N.W.2d 258 (2006).

B. MIRANDA AND CUSTODIAL INTERROGATION

 The right against self-incrimination is guaranteed by both the United States and the Michigan Constitutions.  U.S. Const. Am. V;  Const. 1963, art. 1, § 17.  “[T]he protection against compelled self-incrimination in the Michigan Constitution [is] construed the same as its federal counterpart.”  People v. Bender, 452 Mich. 594, 637, 551 N.W.2d 71 (1996) (Boyle, J., dissenting).   In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court established “procedural safeguards ․ to secure the privilege against self-incrimination.”   Under Miranda, when a criminal defendant is subjected to a custodial interrogation, the defendant must be warned before any questioning that he or she has “a right to remain silent, that any statement [the defendant] does make may be used as evidence against him [or her], and that [the defendant] has a right to the presence of an attorney, either retained or appointed.”  Id. A “custodial interrogation” is defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”  Id. When determining whether a defendant was “in custody,” courts consider both whether a reasonable person in the defendant's situation would believe that he or she was free to leave and “whether the relevant environment present[ed] the same inherently coercive pressures as the type of station house questioning at issue in Miranda.”  Howes v. Fields, 565 U.S. ––––, 132 S.Ct. 1181, 1189–1190, 182 L.Ed.2d 17 (2012).   “Interrogation refers to express questioning and to any words or actions on the part of police that the police should know are reasonably likely to elicit an incriminating response from the subject.”   People v. Raper, 222 Mich.App. 475, 479, 563 N.W.2d 709 (1997).   Statements of an accused made during a custodial interrogation are inadmissible unless the accused knowingly, voluntarily, and intelligently waived his or her Fifth Amendment rights.   People v. Tierney, 266 Mich.App. 687, 707, 703 N.W.2d 204 (2005);  see also Miranda, 384 U.S. at 444–445, 86 S.Ct. 1602.

 “[T]he Fifth Amendment right to counsel is a corollary to the amendment's stated right against self-incrimination and to due process.”   People v. Marsack, 231 Mich.App. 364, 372–373, 586 N.W.2d 234 (1998).  “The right to counsel found in the Fifth Amendment is designed to counteract the inherently compelling pressures of custodial interrogation ․ and to secure a person's privilege against self-incrimination by allowing a suspect to elect to converse with the police only through counsel.”  People v. Williams, 244 Mich.App. 533, 539, 624 N.W.2d 575 (2001) (citations and quotation marks omitted).  “In Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the United States 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.”  People v. McRae, 469 Mich. 704, 715, 678 N.W.2d 425 (2004);  see also Marsack, 231 Mich.App. at 374, 586 N.W.2d 234 (“The procedural safeguards for the Fifth Amendment adopted in Miranda ․ require that the police discontinue the questioning of a suspect when a request for counsel is made.”);  Miranda, 384 U.S. at 444–445, 86 S.Ct. 1602 (“If ․ [the defendant] indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.”).

 In this case, it is not disputed that defendant's June 18, 2010, police interrogation constituted a custodial interrogation under Miranda.   While defendant was under arrest, detectives questioned him about the robbery for which he was a suspect.   See Miranda, 384 U.S. at 444, 86 S.Ct. 1602.   Thus, defendant had a Fifth Amendment right to have counsel present during this interrogation.  Id. at 444–445, 86 S.Ct. 1602;  see also Tierney, 266 Mich.App. at 710, 703 N.W.2d 204 (“A criminal defendant has a constitutional right to counsel during interrogation.”).   It is not disputed that defendant requested an attorney during this interrogation.   By requesting an attorney, defendant invoked his Fifth Amendment right to counsel.   See Fare v. Michael C, 442 U.S. 707, 719, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) (“[T]he Court fashioned in Miranda the rigid rule that an accused's request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease.”).   Defendant having invoked his right to counsel, law enforcement officers were not constitutionally permitted to initiate further custodial interrogation outside the presence of counsel.  Miranda, 384 U.S. at 444–445, 86 S.Ct. 1602;  McRae, 469 Mich. at 715, 678 N.W.2d 425.

 On June 21, 2010, Evans went to the jail to serve defendant with parole-violation charges, question defendant about the robbery, and obtain defendant's “statement.”   By this time, defendant had been in jail for three days.   A deputy escorted defendant from his jail cell to the jail's library for the meeting.   During the questioning, Evans obtained incriminating statements from defendant.   Evans never advised defendant of his Miranda rights, his attorney was not present during the meeting, and the record does not indicate that an attorney had even been made available to defendant.   Given these facts, a reasonable person in defendant's situation would have believed that he or she was not free to leave, and the environment presented “the same inherently coercive pressures as the type of station house questioning at issue in Miranda.”  Howes, 565 U.S. at ––––, 132 S.Ct. at 1189–1190.   Like the defendants in Miranda, defendant was suspected of committing a crime, arrested, and questioned while he was in jail—an environment unfamiliar to defendant—several days after his arrest about the crime for which he was arrested.   See Miranda, 384 U.S. at 456–457, 491–497, 86 S.Ct. 1602.   Thus, defendant was in custody at the time of his meeting with Evans.3  See Howes, 565 U.S. at ––––, 132 S.Ct. at 1189–1190.   Furthermore, Evans's express questioning of defendant about the robbery in an attempt to obtain defendant's statement constituted an interrogation because her questions were reasonably likely to elicit an incriminating response from defendant.   See Raper, 222 Mich.App. at 479, 563 N.W.2d 709.

Therefore, Evans subjected defendant to a custodial interrogation. And, to the extent that Evans was a law enforcement officer under Miranda, her questioning of defendant violated defendant's Fifth Amendment rights.   See Edwards, 451 U.S. at 485, 101 S.Ct. 1880 (“We ․ emphasize that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.”).

C. MIRANDA'S APPLICATION TO PAROLE OFFICERS

 “[C]onstitutional protections apply only to governmental action.”   See People v. Anderson, 209 Mich.App. 527, 533, 531 N.W.2d 780 (1995).   While the Miranda Court opined that Miranda 's constitutional safeguards apply whenever a law enforcement officer initiates a custodial interrogation, Miranda, 384 U.S. at 444, 86 S.Ct. 1602, the Court's subsequent decisions illustrate that Miranda is not limited to custodial interrogation performed by law enforcement officers who are police officers.   See, e.g., Estelle v. Smith, 451 U.S. 454, 468–469, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (holding that Miranda applies to psychiatrist during court-ordered psychiatric inquiry);  Mathis v. United States, 391 U.S. 1, 4, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968) (holding that Miranda applies to internal revenue agents conducting tax investigations).   Moreover, this Court has held that Miranda safeguards apply to a person who is “acting in concert with or at the request of the police.”  Anderson, 209 Mich.App. at 533, 531 N.W.2d 780;  see also People v. Grevious, 119 Mich.App. 403, 407, 327 N.W.2d 72 (1982) ( “It is also clear that [Miranda ] warnings may be required even though the interrogator is not technically a police officer but rather someone acting with or at the request of police authority.”).

The trial court in the present case concluded that defendant's statements to Evans were admissible for two reasons:  (1) Evans was not acting in concert with or at the request of the police and (2) a parole officer, such as Evans, is not a law enforcement officer for Miranda purposes.

 We conclude that the trial court did not clearly err when it determined that Evans did not act in concert with or at the request of the police.   See Herndon, 246 Mich.App. at 395, 633 N.W.2d 376.   Evans testified that her purpose for interviewing defendant was to serve defendant with his parole-violation charges and obtain his statement regarding the robbery.   Evans also testified that she received the police report of the robbery and spoke to a detective about the robbery before conducting her interview.   Smith testified that he spoke to Evans before she interviewed defendant, and the record does not indicate that any other police officer spoke with Evans about the case before she interviewed defendant.   Nothing in the record indicates that Evans interviewed defendant at the request of the police or in collaboration with their investigation.   Thus, we are not left with a “definite and firm conviction” that the trial court erred by finding that Evans did not act in concert with or at the request of the police.   See Muro, 197 Mich.App. at 747, 496 N.W.2d 401.

However, notwithstanding the trial court's finding that Evans was not acting in concert with or at the request of the police, the question remains whether Evans was a law enforcement officer under Miranda as a matter of law given her status as a parole officer and therefore precluded from interrogating defendant after he invoked his right to counsel.

In Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), the United States Supreme Court addressed the admissibility under the Fifth Amendment of statements made to a probation officer.   The defendant in Murphy had arranged a meeting with his probation officer at the officer's office.  Id. at 423, 104 S.Ct. 1136.   During the meeting, the defendant made incriminating statements to the probation officer, who then secured an arrest and detention order for the defendant.  Id. at 424, 104 S.Ct. 1136.   The Supreme Court held that the defendant's incriminating statements to the probation officer were admissible even though the probation officer did not comply with Miranda.  Id. at 430–433, 104 S.Ct. 1136.   The Court explicitly based its holding on the fact that the defendant was not in custody when the probation officer questioned him because “there was no formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.”  Id. at 430, 104 S.Ct. 1136 (quotation marks and citations omitted).   According to the Court, the probation interview was “ arranged by appointment at a mutually convenient time” and did not take place in “an unfamiliar atmosphere” or “an interrogation environment.”  Id. at 433, 104 S.Ct. 1136.   Furthermore, the defendant “was not physically restrained and could have left the” interview at any time.  Id. Importantly, however, the Court noted that its constitutional inquiry would have been different had the defendant been in custody at the time of the interview:

We emphasize that [the defendant] was not under arrest and that he was free to leave at the end of the meeting.   A different question would be presented if he had been interviewed by his probation officer while being held in police custody or by the police themselves in a custodial setting.  [Id. at 429 n. 5, 104 S.Ct. 1136 (emphasis added).]

The case now before this Court presents the exact different question to which the Murphy Court alluded.

The Michigan Supreme Court has not addressed the application of Miranda to parole officers.   However, this Court has specifically addressed the issue, albeit through unpublished opinions.   See People v. Stokes, unpublished opinion per curiam of the Court of Appeals, issued July 17, 2007 (Docket No. 269345), 2007 WL 2051551;  Littlejohn, unpub. op. at 1–2.

In Littlejohn, the trial court admitted into evidence statements that the defendant made to a parole officer who did not advise the defendant of his Miranda rights before an interview.  Littlejohn, unpub. op. at 1–2.   On appeal, this Court affirmed the trial court's admission of the statements for two reasons.  Id. at 2. First, the Littlejohn Court concluded that the parole officer did not subject the defendant to an interrogation because the defendant's statements were “volunteered” and “not the result of questioning or of behavior calculated to elicit an incriminating response.”  Id. Second, the Court concluded that the parole officer “was not a law enforcement official” and “was acting independently from the police” solely “to advise [the defendant] of parole violation charges, to advise him of his right to a preliminary hearing on those charges, and to determine if he would agree to waive the hearing.”  Id.

Similarly, in Stokes this Court upheld the admission of statements that a defendant made to a parole officer who did not advise the defendant of his Miranda rights before an interview.  Stokes, unpub. op. at 4–5.   Relying on our previous decision in Anderson, 209 Mich.App. at 533, 531 N.W.2d 780, the Stokes Court emphasized that “ ‘[a] person who is not a police officer and is not acting in concert with or at the request of the police is not required to give Miranda warnings before eliciting a statement.’ ” Id. at 4, quoting Anderson, 209 Mich.App. at 533, 531 N.W.2d 780.   The Stokes Court concluded that the “defendant's parole officer was not a police officer conducting a custodial interrogation.”  Stokes, unpub. op. at 4. Furthermore, the Court opined that the parole officer had acted independently from the police and spoke to the defendant solely to advise him of parole-violation charges and his right to a preliminary hearing and to determine whether the defendant would waive the hearing.  Id. at 4–5.

We note, however, that while this Court's decisions in Littlejohn and Stokes are persuasive authority for our constitutional inquiry, they are not precedentially binding on this Court under the rule of stare decisis.  MCR 7.215(C)(1);  see also People v. Green, 260 Mich.App. 710, 720 n. 5, 680 N.W.2d 477 (2004).   Moreover, we recognize that while decisions of the federal circuit courts of appeals are also not precedentially binding on this Court, see People v. Oliver, 170 Mich.App. 38, 47–49, 427 N.W.2d 898 (1988), our decisions in Littlejohn and Stokes conflict with various federal circuits that have addressed the application of Miranda to parole and probation officers.   See, e.g., United States v. Newton, 369 F.3d 659, 663–664, 679–680 (C.A.2, 2004) (applying Miranda safeguards to questions of a parole officer to a defendant);  United States v. Andaverde, 64 F.3d 1305, 1310–1311 (C.A.9, 1995) (holding that custodial statements made to probation officers are subject to the same Miranda analysis as statements made to law enforcement officers);  United States v. Bland, 908 F.2d 471, 473–474 (C.A.9, 1990) (ordering a new trial for a defendant because a parole officer's Miranda warning was inadequate);  United States v. Deaton, 468 F.2d 541, 544 (C.A.5, 1972) (stating that a parole officer must give Miranda warnings during a custodial interrogation of a parolee).

In Deaton, for example, the defendant's parole officer testified at the defendant's trial about incriminating statements made to him by the defendant in response to “direct interrogation by the parole officer when [the defendant] was in custody” and “without the officer having given [the defendant] the warnings required by Miranda.”  Deaton, 468 F.2d at 544.   The United States Court of Appeals for the Fifth Circuit held that the defendant's statements to his parole officer were inadmissible at trial as the parole officer had not advised the defendant of his Miranda rights.  Id. As a basis for its holding, the Deaton court explained that “[a] parolee is under heavy psychological pressure to answer inquiries made by his parole officer, perhaps even greater than when the interrogation is by an enforcement officer.”  Id.

In addition to these federal circuits, there is persuasive authority from various state appellate courts holding that Miranda applies to parole and probation officers.   See, e.g., State v. Willis, 64 Wash.App. 634, 639–640, 825 P.2d 357 (1992) (community corrections officers);  State v. Sargent, 111 Wash.2d 641, 652–653, 762 P.2d 1127 (1988) (probation officers);  State v. Roberts, 32 Ohio St.3d 225, 231, 513 N.E.2d 720 (1987) (probation officers);  Marrs v. State, 53 Md.App. 230, 235, 452 A.2d 992 (1982) (probation officers);  State v. Magby, 113 Ariz. 345, 348–349, 554 P.2d 1272 (1976) (probation officers);  State v. Gallagher, 38 Ohio St.2d 291, 296–297, 313 N.E.2d 396 (1974), vacated on other grounds 425 U.S. 257, 96 S.Ct. 1438, 47 L.Ed.2d 722 (1976), reinstated on remand 46 Ohio St.2d 225, 348 N.E.2d 336 (1976) (parole officers);  State v. Williams, 486 S.W.2d 468, 473–474 (Mo., 1972) (parole officers);  State v. Lekas, 201 Kan. 579, 584–588, 442 P.2d 11 (1968) (parole officers).

In Marrs, police officers arrested the defendant on trespassing charges.   Marrs, 53 Md.App. at 231–232, 452 A.2d 992.   In the presence of two police officers, the defendant's probation officer questioned the defendant in a police vehicle and also at the police station regarding an arson that had occurred about one year earlier.  Id. According to the probation officer, he questioned the defendant so that he could “make a proper recommendation as to whether [the defendant's] bail bond and probation should be revoked” and “at no time gave [the defendant] Miranda warnings.” Id. at 232, 452 A.2d 992.   The defendant initially denied involvement in the arson, but after requesting that the police officers leave, he admitted to his probation officer that he was involved in the arson.  Id. The defendant's statement to the probation officer was admitted into evidence at his trial for arson, and the defendant was convicted.  Id. The Maryland Court of Special Appeals held that the defendant's statement to his probation officer was not admissible at trial because the defendant had not been advised of his Miranda rights.  Id. at 235, 452 A.2d 992.   The court opined that the probation officer's motivation for questioning the defendant was immaterial as long as the probation officer's conduct was likely to elicit an incriminating statement.   According to the court, if questioning constituted an interrogation under Miranda, the questioning “ ‘does not become something else because the interrogator's main purpose is [something other] than the procuring of incriminating statements, even though self-incrimination may be foreseen as a windfall.’ ” Id. at 235–236, 452 A.2d 992 (citation omitted).   The court focused on the relationship between probation officers and probationers when determining that Miranda safeguards applied:

It seems to us that an accused, whose essential obligation it is to “report to” and “answer questions posed by a probation officer,” United States v. Rea, 678 F.2d 382 (2nd Cir.1982), is under even heavier psychological pressure to answer questions put by his probation officer, a figure of both authority and trust.   A probationer, who often talks to his supervising officer as a counselor and confidante, might very well assume that any statements made by him are in some way confidential thus bringing into play the mandates of Miranda.  [Id. at 233, 452 A.2d 992.]

In Roberts, the Ohio Supreme Court similarly considered the relationship between probation officers and probationers before holding that a probation officer must give Miranda warnings before questioning an in-custody probationer.   See Roberts, 32 Ohio St.3d at 231, 513 N.E.2d 720.   After discussing the reasoning of the Marrs courts', the Roberts court emphasized that there is a “deceptive effect engendered by the in-custody questioning of a probationer by his probation officer.”  Id. at 230, 513 N.E.2d 720.   In explaining the potential for abuse in the probationer-probation officer relationship, the court quoted Justice Thurgood Marshall's dissent in Murphy.  Id. Justice Marshall opined:

It is true, as the majority points out, that the discussion between a probation officer and a probationer is likely to be less coercive and intimidating than a discussion between a police officer and a suspect in custody.  Ante, at 1144, 1145 [Murphy, 465 U.S. at 433, 104 S.Ct. 1136].   But it is precisely in that fact that the danger lies.   In contrast to the inherently adversarial relationship between a suspect and a policeman, the relationship between a probationer and the officer to whom he reports is likely to incorporate elements of confidentiality, even friendship.   Indeed, many probation officers deliberately cultivate such bonds with their charges.   The point should not be overstated;  undoubtedly, few probationers are entirely blind to the fact that their probation officers are ‘peace officer[s], ․ allied, to a greater or lesser extent, with [their] fellow peace officers.’   Fare v. Michael C., 442 U.S. 707, 720, 99 S.Ct. 2560, 2569, 61 L.Ed.2d 197 (1979).   On the other hand, many probationers develop “relationship[s] of trust and confidence” with their officers.  Id., at 722 [99 S.Ct. 2560]. Through abuse of that trust, a probation officer can elicit admissions from a probationer that the probationer would be unlikely to make to a hostile police interrogator.  [Murphy, 465 U.S. at 459–460, 104 S.Ct. 1136 (Marshall, J., dissenting).]

Although we are mindful of this Court's previous unpublished decisions in Stokes and Littlejohn that do not apply Miranda to parole officers, we are persuaded that the better rule is that articulated by the Deaton, Marrs, and Roberts courts and adhered to by the other jurisdictions listed.

The rationale for the suppression of statements elicited during a custodial interrogation by a law enforcement officer who does not adhere to Miranda is to “combat” the “inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.” Miranda, 384 U.S. at 467, 86 S.Ct. 1602;  see also Williams, 244 Mich.App. at 539, 624 N.W.2d 575.   Such “inherently compelling pressures” exist in the relationship between a parolee and a parole officer.   Indeed, this Court has recognized that “both parolees and probationers are under heavy psychological pressure to answer inquiries made by their supervising officers.”  People v. Faulkner, 90 Mich.App. 520, 524, 282 N.W.2d 377 (1979) (quotation marks and citations omitted).   This heavy psychological pressure exists because of the unique relationship between a parolee and parole officer.

On the one hand, the parolee-parole officer relationship often becomes a relationship of trust and confidence, as does the probationer-probation officer relationship addressed by Justice Marshall in Murphy.   See Murphy, 465 U.S. at 459–460, 104 S.Ct. 1136 (Marshall, J., dissenting).   As a parolee develops trust and begins to confide in a parole officer, the parole officer is more likely to elicit from the parolee incriminating statements that the parolee would likely not make to a police interrogator.

On the other hand, the parolee-parole officer relationship is adversarial.   A parole officer is an agent of the state.   Generally, as a condition of parole, a parolee is obligated to report to and answer his or her parole officer's questions to avoid the revocation of parole.   See generally Faulkner, 90 Mich.App. at 524–525, 282 N.W.2d 377 (noting that the director of a half-way house was required to give Miranda warnings before interrogating the defendant when the defendant was not free to refuse to answer the director's questions). If a parole officer has reasonable grounds to believe that a parolee has violated the conditions of his or her parole, MCL 791.239 provides the officer with statutory authority to arrest the parolee.   Cf. Anderson, 209 Mich.App. at 534, 531 N.W.2d 780 (holding that a South Carolina juvenile corrections officer supervisor was not required to give Miranda warnings to the defendant before he confessed to involvement in two shootings because the officer did not have authority to arrest or detain).   Thus, when a parole officer questions an in-custody parolee in a circumstance that is likely to elicit an incriminating response, the parolee is “ assuredly ․ faced with a phase of the adversary system and ․ not in the presence of [a] perso[n] acting solely in his interest.”   See Estelle, 451 U.S. at 467, 101 S.Ct. 1866 (quotation marks and citation omitted).   In Estelle, such adversarial questioning necessitated the use of Miranda safeguards by a court-ordered psychiatrist who examined a defendant and ultimately testified during the penalty phase of the defendant's trial:

That [defendant] was questioned by a psychiatrist designated by the trial court to conduct a neutral competency examination, rather than by a police officer, government informant, or prosecuting attorney, is immaterial.   When [the psychiatrist] went beyond simply reporting to the court on the issue of competence and testified for the prosecution at the penalty phase on the crucial issue of [defendant's] future dangerousness, his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a postarrest custodial setting.   During the psychiatric evaluation, [defendant ] assuredly was “faced with a phase of the adversary system ” and was “not in the presence of [a] perso[n] acting solely in his interest.”

 *   *   *

․ Because [defendant] did not voluntarily consent to the pretrial psychiatric examination after being informed of his right to remain silent and the possible use of his statements, the State could not rely on what he said to [the psychiatrist] to establish his future dangerousness.   If, upon being adequately warned, [defendant] had indicated that he would not answer [the psychiatrist's] questions, the validly ordered competency examination nevertheless could have proceeded upon the condition that the results would be applied solely for that purpose.  [Estelle, 451 U.S. at 467–468, 101 S.Ct. 1866 (citation omitted;  emphasis added) (italicized alterations in original).]

Furthermore, when a parole officer subjects a parolee to a custodial interrogation, there is always the possibility that the parole officer's questioning will lead to a criminal prosecution.   The existence of such a possibility, the Supreme Court held, necessitated the use of Miranda safeguards by an internal revenue agent:

It is true that a ‘routine tax investigation’ may be initiated for the purpose of a civil action rather than criminal prosecution․ But tax investigations frequently lead to criminal prosecutions, just as the one here did․ And, as the investigating revenue agent was compelled to admit, there was always the possibility during his investigation that his work would end up in a criminal prosecution.   We reject the contention that tax investigations are immune from the Miranda requirements for warnings to be given a person in custody.  [Mathis, 391 U.S. at 4, 88 S.Ct. 1503 (emphasis added).]

 Accordingly, given the heavy psychological pressure on a parolee to respond to a parole officer's questions the parolee would not otherwise do so freely, see Miranda, 384 U.S. at 467, 86 S.Ct. 1602;  Faulkner, 90 Mich.App. at 524, 282 N.W.2d 377;  Deaton, 468 F.2d at 544, we hold that a parole officer is a law enforcement officer for purposes of Miranda.   Statements made by a parolee to a parole officer during a custodial interrogation are inadmissible in a subsequent trial if the parolee invoked the right to counsel before questioning.4 Therefore, we conclude that the statements defendant made to Evans while he was in custody were inadmissible at trial and that the trial court erred by denying defendant's motion to suppress.

D. HARMLESS ERROR

 A preserved constitutional error occurring during the presentation of the case to a jury, i.e., a nonstructural error, is not grounds for reversal if the error was harmless.  People v. Miller, 482 Mich. 540, 559, 759 N.W.2d 850 (2008);  People v. Anderson (After Remand), 446 Mich. 392, 406, 521 N.W.2d 538 (1994).   A preserved constitutional error is harmless if it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.”  People v. Hyde, 285 Mich.App. 428, 447, 775 N.W.2d 833 (2009) (quotation marks and citations omitted).  “There must be no ‘reasonable possibility that the evidence complained of might have contributed to the conviction.’ ” Id., quoting Anderson, 446 Mich. at 406, 521 N.W.2d 538;  see also Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

 In addition to eliciting Evans's inadmissible testimony, the prosecution presented evidence that defendant smoked Marlboro cigarettes, which was the brand of cigarettes that the robber told the cashier to give him.   Defendant's brother testified that defendant returned home on the night of the robbery wearing clothes that matched the description of the clothes worn by the robber and with $152.   The $152 included a $2 bill, which corresponded to the money that the robber stole from the gas station.   Defendant's brother reported defendant to the police.   Moreover, the prosecution presented evidence that defendant frequently wore a University of Michigan fleece pullover and a University of Michigan hat that matched the description of the pullover and hat worn by the robber.

Notwithstanding this evidence of defendant's guilt, there remains a “reasonable possibility” that defendant's statements to Evans “might have contributed to the conviction.”   See Anderson, 446 Mich. at 406, 521 N.W.2d 538 (quotation marks and citation omitted).   The gas-station cashier was unable to identify defendant as the robber.   Although defendant's brother testified against him, the defense introduced evidence of the brother's prior convictions to both impeach the brother and also as a basis for arguing that the brother committed the robbery and falsely accused defendant.   Moreover, in both his opening and closing statements, the prosecutor emphasized the importance of Evans's testimony regarding defendant's incriminating statements.   In his opening statement, the prosecutor said, “[M]ost importantly, you will hear that the Defendant confessed to someone that he did this armed robbery.”   And in his closing argument, the prosecutor described Evans as “probably the most crucial” witness.   The prosecutor's statements underscore the importance of defendant's incriminating statements in the prosecution's case and demonstrate a reasonable possibility that defendant's incriminating statements might have contributed to his conviction.   See id.

Accordingly, we conclude that the trial court's failure to suppress defendant's statements to Evans was not harmless error beyond a reasonable doubt.   Therefore, we reverse defendant's conviction and remand for a new trial.

Reversed and remanded for proceedings consistent with this opinion.   We do not retain jurisdiction.

FOOTNOTES

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

2.   The trial court later entered an amended judgment of sentence, indicating that defendant's sentence was to run consecutively to his preexisting sentences related to the parole violations.

3.   We note that the present case is distinguishable from Howes because the defendant in that case was questioned by authorities while he was serving a jail sentence, i.e., while he was living in jail.  Howes, 565 U.S. at ––––, 132 S.Ct. at 1185, 1193.   Moreover, the defendant was questioned about a crime unrelated to his incarceration.  Id. at ––––, 132 S.Ct. at 1185.   In contrast, the authorities did not question defendant in the present case while he was serving a jail sentence;  rather, defendant was questioned shortly after he was arrested, and the questioning focused on the reason for his arrest.   Thus, unlike the defendant in Howes, defendant in this case was not questioned in “familiar surroundings” but was “cut off from his normal life and companions” by an arrest and “abruptly transported” to a “police-dominated atmosphere” for questioning.  Id. at ––––, 132 S.Ct. at 1190–1191.   The “inherently compelling pressures” that were lacking in Howes were present here.   Id. at ––––, 132 S.Ct. at 1191.

4.   We emphasize that we do not address whether the statements would be admissible in a subsequent parole revocation hearing.   We note, however, that the Supreme Court has stated that “the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.”   Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972);  see also People v. Hardenbrook, 68 Mich.App. 640, 644–646, 243 N.W.2d 705 (1976).

BECKERING, P.J.

OWENS and SHAPIRO, JJ., concurred with BECKERING, P.J.

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