PEOPLE v. BROWN (1997)

ON REMAND

This matter has been remanded to us by our Supreme Court for reconsideration in light of People v. Bender, 452 Mich. 594, 551 N.W.2d 71 (1996).  454 Mich. 885 (1997).   We reverse.

 The underlying facts are set out in Judge Shepherd's thorough dissenting opinion in People v. Brown, 206 Mich.App. 535, 541, 522 N.W.2d 888 (1994).   At issue was whether defendant's statements to police were given voluntarily and without coercion where the police did not tell defendant that an attorney hired by defendant's mother was present at the time of interrogation.   It is now clearly the law in Michigan that a defendant is precluded from making a knowing and intelligent waiver of his rights to remain silent and to counsel if the police fail to inform him that a retained attorney is immediately available to consult with him.  Bender, supra at 597, 551 N.W.2d 71.

 Moreover, it has been determined by a panel of this Court that Bender is to be applied retroactively.  People v. Young, 222 Mich.App. 498, 565 N.W.2d 5 (1997).   We are bound by Administrative Order No. 1996-4 ¹ to follow this Court's decision in Young.   Accordingly, we reverse defendant's conviction and remand for a new trial at which defendant's second statement is to be suppressed.

Reversed and remanded.   We do not retain jurisdiction.

FOOTNOTES

1.   451 Mich. xciii.

PER CURIAM.