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recognizing that acts of an FBI agent or secret service agent are "attributable to the prosecution"
Summary of this case from State v. GamlenOpinion
Docket No. 84503.
Decided February 17, 1987. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Norman R. Hayes, Prosecuting Attorney, and Tonatzin M. Alfaro Garcia, Assistant Attorney General, for the people.
Sheldon Halpern, for defendant on appeal.
Following a jury trial in Otsego Circuit Court in 1982, defendant was convicted of delivery of cocaine, MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii), and was sentenced to a mandatory twenty- to thirty-year prison term. Defendant appealed his conviction as of right, and this Court affirmed in an unpublished per curiam opinion on July 10, 1984, (Docket No. 65159).
Defendant sought leave to appeal to the Supreme Court. In lieu of granting leave to appeal, the Supreme Court vacated this Court's judgment and reversed the order denying defendant's motion to remand. 422 Mich. 875 (1985). The Supreme Court remanded the case to this Court, with directions to retain jurisdiction while remanding the case to the Otsego Circuit Court for an evidentiary hearing on defendant's claim that a defense witness was intimidated from testifying by the witness' probation officer's threat to reveal information which was confidential under MCL 791.229; MSA 28.2299.
On remand, after an evidentiary hearing and oral argument, the circuit court issued a written opinion, finding that the defense witness was not improperly threatened or intimidated from testifying.
The case is now again before this Court, limited to the issue of whether potential defense witness Theodore Rhode was intimidated from testifying. Having reviewed the proceedings below and the trial court's findings, we are satisfied that defendant was accorded a fair trial and that no violation of his constitutional rights occurred.
Drug charges were filed against both defendant and Rhode for their participation in a sale of cocaine. Rhode was convicted by jury, but, at the time of defendant's trial, had not yet been sentenced. Defendant asserted a defense of "mere presence," on the basis that he had no connection with the drug transaction.
Prior to defendant's trial, his attorney, James L. Feinberg, anticipated calling codefendant Rhode as a defense witness. After the prosecution rested, Feinberg announced at a conference in chambers that he would call Rhode as a witness. The assistant prosecutor informed Feinberg that he would use statements given by Rhode in his presentence report if Rhode's trial testimony differed from his version of the offense in the presentence report.
Feinberg discussed the presentence report, and its implications, with defendant and Rhode. Feinberg advised Rhode that impeachment of his testimony would hurt defendant, and that the prosecutor could bring perjury charges against him if his testimony substantially differed from the presentence report. Rhode's attorney, Gail Benson, also discussed with Rhode the potential for a perjury charge. The trial court found after the evidentiary hearing that it had been agreed among both defense attorneys, as well as Rhode and defendant, that Rhode should not testify on defendant's behalf. Rhode testified that it was his decision not to testify at defendant's trial, but the trial court found that Feinberg feared jeopardizing his case if Rhode testified and was impeached. The trial court concluded that the decision not to call Rhode was based on trial strategy.
Defendant argues that Rhode was intimidated from testifying by prosecutorial threats to reveal the confidential information Rhode had given to his probation officer in preparation of his presentence report. Defendant argues that, although the prosecutor did not threaten Rhode directly, the threat of impeachment and a possible perjury charge was conveyed from the prosecutor to Rhode via defense counsel Feinberg. Defendant asserts that use of information in a presentence report violates the statute calling for this information to remain confidential.
MCL 791.229; MSA 28.2299 provides:
All records and reports of investigations made by a probation officer, and all case histories of probationers shall be privileged or confidential communications not open to public inspection. Judges and probation officers shall have access to the records, reports, and case histories. The probation officer, the assistant director of probation, or the assistant director's representative, shall permit the attorney general, the auditor general, and law enforcement agencies to have access to the records, reports, and case histories. The relation of confidence between the probation officer and probationer or defendant under investigation shall remain inviolate.
This Court has previously recognized that this statute, preserving the confidentiality of presentence reports, may directly conflict with the equally protected rights of confrontation and impeachment through use of prior inconsistent statements. People v Rohn, 98 Mich. App. 593, 599; 296 N.W.2d 315 (1980), lv den 410 Mich. 876 (1980). The Rohn Court noted that the need for confidentiality must sometimes give way to other stronger interests, and concluded that the need for impeachment of criminal accusations outweighed any need for confidentiality of presentence reports. Id., 599-600. The Rohn panel made it clear that their holding did not permit wholesale access to these confidential records:
We hold only that when records of prior inconsistent statements of witnesses are necessary for effective cross-examination, they should be made available to the defendant. An in camera inspection procedure should be utilized by the court to limit disclosure to those statements materially inconsistent with the witness' testimony. [ Id., 600.]
The issue in Rohn was whether a defendant could use statements in a presentence report to impeach prosecution witnesses. In the instant case, the issue is whether the prosecutor may use presentence-report statements to impeach a defense witness. Impeachment of witnesses by their prior inconsistent statements is an important cross-examination tool whether the witness is for the prosecution or for the defense. Assuming that the purpose of the confidentiality of the presentence report is to encourage full disclosure, and assuming the possibility of impeachment with these statements may discourage full disclosure, it matters not, in weighing impeachment versus confidentiality, whether the subsequent impeachment comes from the prosecutor or from the defense counsel. To the convicted person, the threat of a possible breach of confidentiality is the same. The very limited breach of confidentiality sanctioned by Rohn is no greater a breach when the prosecutor uses the information for impeachment than when the defense counsel does.
Moreover, the statute specifically instructs the probation officer to permit the Attorney General and law enforcement agencies to have access "to the records, reports, and case histories." As the trial court noted, the statute, while specifying that the case reports are not to be "open to public inspection," still permits judges, probation officers, and law enforcement agencies to have access to them, apparently distinguishing the latter from the general public. We do not disagree with the trial court's conclusion that the Legislature contemplated the use of this information by the various officers enumerated in the statute. Cf., Havens v Roberts, 139 Mich. App. 64, 68; 360 N.W.2d 183 (1984) (insurance company denied access to probation-officer reports).
Defendant points out that prosecutorial intimidation of a proposed defense witness has consistently been regarded as improper by our state and federal appellate courts. People v Pena, 383 Mich. 402; 175 N.W.2d 767 (1970); People v Butler, 30 Mich. App. 561; 186 N.W.2d 786 (1971); People v Callington, 123 Mich. App. 301; 333 N.W.2d 260 (1983); United States v Thomas, 488 F.2d 334 (CA 6, 1973). Federal courts have also held that attempts by the prosecution to intimidate witnesses from testifying, if successful, amount to a denial of a defendant's constitutional right to due process of law. Thomas, supra; United States v Morrison, 535 F.2d 223 (CA 3, 1976); United States v MacCloskey, 682 F.2d 468 (CA 4, 1982); United States v Hammond, 598 F.2d 1008 (CA 5, 1979). A threat from an FBI agent or secret service agent is attributable to the prosecution. Thomas, supra; Hammond, supra.
However, courts have distinguished these cases based on whether the prosecution directly contacted or threatened the potential defense witness. United States v Teague, 737 F.2d 378 (CA 4, 1984); United States v Whittington, 783 F.2d 1210, 1219 (CA 5, 1986). In this case, no threats were made to witness Rhode which could be attributed to the prosecution. We do not consider the prosecutor's threat of impeachment to be intimidation. It was the defense attorneys, not the prosecutor, who brought up the possibility of perjury with witness Rhode. Moreover, the prosecutor announced the possibility of impeachment in chambers, not in the presence of the witness or the jury, just as the Callington Court recommended to avoid the appearance of intimidation.
The trial court in this case found that the state took no action to intimidate Rhode to keep him from testifying. Nothing in the record causes us to disturb that finding. Defendant was not denied his right of due process.
Affirmed.