Opinion
Docket No. 62416.
Decided October 27, 1983. Leave to appeal denied, 419 Mich ___.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and A. George Best, II, Assistant Prosecuting Attorney, for the people.
Gerald S. Surowiec, for defendant.
The defendant was arrested in connection with a grocery store holdup on April 28, 1981, in which two persons were killed. Defendant was charged with two counts of first-degree murder, MCL 750.316; MSA 28.548, two counts of felony murder, MCL 750.316; MSA 28.548, one count of armed robbery, MCL 750.529; MSA 28.797, and one count of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2).
The jury at trial was unable to reach a verdict on the first four counts, but found defendant guilty of the latter two. On November 24, 1981, defendant was sentenced to serve 50 to 75 years for armed robbery and 2 years for felony-firearm. Defendant appeals as of right.
At a subsequent retrial on the murder charges, a jury found the defendant not guilty of those charges.
On appeal, defendant raises three issues. The dispositive question of the trilogy is whether the trial court erred in allowing the prosecutor to call defendant's accomplice as a witness, knowing that the witness would claim the privilege against self-incrimination as to matters concerning the alleged crimes, even though the accomplice did not in fact assert the privilege on the stand. We hold that the incident unfairly prejudiced defendant's right to a fair trial and reverse for the reasons stated below.
Defendant also raises two other issues. First, defendant contends that the evidence was insufficient to permit the magistrate at the preliminary examination to bind him over. Second, defendant argues that the evidence at trial was insufficient to find him guilty beyond a reasonable doubt. Since we reverse this case for the reasons stated, we do not pass upon the additional questions.
The accomplice, Herman Noble, was arrested and charged with the defendant. Mr. Noble pled guilty to two counts of second-degree murder, one count of armed robbery and felony-firearm, as part of a plea bargain with the prosecutor. Mr. Noble was endorsed as a witness in defendant's trial over objection. However, after being endorsed, and prior to sentencing, Mr. Noble sought to withdraw his plea. On the day Mr. Noble was scheduled to testify, a hearing had been scheduled on his request.
The trial judge conducted a hearing away from the jury to determine whether the prosecutor would call Mr. Noble as a witness in light of the changed circumstances. The record discloses the following discussion in pertinent part:
" The Court: All right. Do the people intend to call Mr. Herman Noble, who is endorsed on the information?
" Mr. Neaton [attorney for the people]: Yes, your Honor."
Thereafter, Mr. Noble, present with his attorney, notified the trial court that he would assert his Fifth Amendment privilege if questioned in connection with the crimes.
" Mr. Blake [attorney for Noble]: Your Honor, I have conferred with Mr. Noble with respect to his appearance as a witness in this case. Mr. Noble informed me that he had entered a plea of guilty before this court to a crime involved in this case. Mr. Noble informed me that subsequent to entering that plea of guilty he desired to withdraw his plea prior to sentencing and that he, in fact, wrote your Honor, as you've stated, advising you that he desires to withdraw this plea.
* * *
"I've advised Mr. Noble, therefore, that his posture is that there is a possibility, should the court allow him to withdraw, that he would then proceed to trial on the crime charged. * * * I've advised Mr. Noble, therefore, that should he take the stand and should the prosecution pose questions to him concerning the facts and circumstances surrounding the crime to which he faces a prospective possibility of a trial, that he has a right, your Honor, not to incriminate himself and to assert the Fifth Amendment with respect to the crime charged. Is that correct, Mr. Noble?
" Mr. Noble: Yes, sir.
" Mr. Blake: Now, I've left it up to Mr. Noble to decide what he should do. Mr. Noble has advised me that he will, in fact, assert his Fifth Amendment privilege if questions are posed to him regarding the facts and circumstances of the crimes charged."
Over the objection of the defendant's lawyer, the trial judge allowed the prosecutor to call Mr. Noble as a witness. The judge ruled that since Mr. Noble was endorsed as a witness he could be called.
Once on the stand, Mr. Noble answered the following questions:
" Q. Sir, your name is Herman Noble, is that correct?
" A. Yes, sir.
" Q. How old are you?
" A. Twenty.
" Q. Do you have a sister named Kim Noble?
" A. Yes.
" Q. How old is she?
" A. She's 21.
" Q. And do you know Lorne King?
" A. Yes, sir.
" Q. And is Lorne King your sister Kim's boyfriend?
" A. I do not know.
" Q. Do you know where your sister Kim was living or staying last April of 1981?
" A. Yes.
" Q. Where was that?
" A. West Grand Boulevard with my mother.
" Q. And is that in the same building that Lorne King stayed at that time?
" A. I don't know if Lorne King stayed there or not.
" Q. You know the address of that building?
" A. I think it's 2318.
" Q. West Grand Boulevard?
" A. Yes.
" Mr. Neaton [attorney for the people]: Thank you, That's all."
Defendant's counsel again objected and moved for a mistrial. The motion was denied. Defendant did not cross-examine Mr. Noble.
The prosecution argues that, because Mr. Noble did not assert his Fifth Amendment privilege nor testify to any fact from which the jury could infer guilt with respect to him or the defendant, the verdict should be affirmed. However, the ethical standards relating to the prosecutorial function, as well as our own decisions, compel us to reject this argument.
The Michigan Supreme Court in People v Giacalone, 399 Mich. 642, 645; 250 N.W.2d 492 (1977), established the standard which this Court must apply:
"A lawyer may not knowingly offer inadmissible evidence or call a witness knowing that he will claim a valid privilege not to testify. The American Bar Association standards relating to the prosecution and defense functions provide that it is unprofessional conduct for a prosecutor or a lawyer representing a defendant
— `knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury to offer inadmissible evidence'
— `to call a witness who he knows will claim a valid privilege not to testify, for the purpose of impressing upon the jury the fact of the claim of privilege.'" (Footnotes omitted.)
This Court has recently applied the Giacalone standard in several cases. While we have disagreed on its application to a defendant who calls a recalcitrant witness, compare People v Bashans, 80 Mich. App. 702; 265 N.W.2d 170 (1978), with People v Squires, 100 Mich. App. 672; 300 N.W.2d 366 (1980), lv den 410 Mich. 919 (1981), and People v Jerry Johnson (After Remand), 86 Mich. App. 430; 272 N.W.2d 672 (1978), lv den 406 Mich. 864 (1979), as to the prosecutor, our holdings have reinforced the inveterate policy in Michigan of disfavoring convictions obtained with suspicions of prosecutorial misconduct. People v Swindlehurst, 120 Mich. App. 606; 328 N.W.2d 92 (1982), lv den 417 Mich. 900 (1983); People v Squires, supra; People v Hines, 88 Mich. App. 148; 276 N.W.2d 550 (1979), lv den 406 Mich. 934 (1979); People v Savard, 73 Mich. App. 175; 250 N.W.2d 565 (1977). This policy is particularly felicitous when a prosecutor goes through the motions of calling a witness who he knows intends to assert the Fifth Amendment privilege. See Bashans, supra, p 710.
In People v Poma, 96 Mich. App. 726; 294 N.W.2d 221 (1980), this Court spoke of the unfairness inherent in merely putting a recalcitrant witness on the stand when the witness intends to assert the privilege:
"We hold that it is inherently prejudicial to place a witness on the stand who is intimately related to the criminal episode at issue, when the judge and prosecutor know that he will assert the Fifth Amendment privilege. When a judge determines at the evidentiary hearing that the intimate witness will either properly or improperly claim the protection against self-incrimination, he must not allow this witness to be called to the stand." Poma, supra, p 733.
We adopt the Poma reasoning, although we need not apply the breadth of the Poma holding; it is clear that Mr. Noble had a valid privilege to assert as to the matters the prosecutor so stealthily avoided. Mr. Noble's situation was similar to that of an accomplice in People v Swindlehurst, supra. There the defendant argued on appeal that it was improper for the prosecutor to comment in closing argument on the failure of the accomplice to testify on the defendant's behalf. This Court rejected the defendant's argument because of his failure to object during trial, however, as to the merits of his contention, the Court noted:
"The witness in question, one Evans, had pled guilty and was awaiting sentence at the time of this trial. The record is silent as to whether, if he had been called by either side, he would have claimed his Fifth Amendment privilege. Having in mind the possibilities of a withdrawal of his guilty plea, or a successful appellate challenge to his conviction, there is reason to believe that he would have invoked his Fifth Amendment privilege if called.
"It would have been error for either the prosecutor or defense counsel to call Evans as a witness under such circumstances. People v Giacalone, 399 Mich. 642; 250 N.W.2d 492 (1977). See also People v DeGoenaga, 202 Mich. 503; 168 N.W. 436 (1918)." Swindlehurst, supra, p 612.
Having found error in the fact that Mr. Noble was called to testify, we are unable to say that the error is harmless. The standard for harmless error consists of two questions:
(1) Was the error so offensive to the maintenance of a sound judicial system as to require reversal; and
(2) If not, was the error harmless beyond a reasonable doubt? People v Mobley, 390 Mich. 57, 65; 210 N.W.2d 327 (1973). People v Robinson, 386 Mich. 551, 563; 194 N.W.2d 709 (1972).
The purpose of the first question is to "deter prosecutorial and police misconduct and to safeguard those individual rights which are so fundamental that the impact of their violation cannot be fully assessed". People v Swan, 56 Mich. App. 22, 32, fn 6; 223 N.W.2d 346 (1974), lv den 395 Mich. 810 (1975), see also People v Mobley, supra, pp 65-66. As to the second element "[w]e must determine `whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction', that is, whether it might have aided in convincing an otherwise undecided juror of the defendant's guilt beyond a reasonable doubt". Swan, supra, p 33 (footnote omitted).
The case before us fails both tests. An error deliberately injected by the prosecutor cannot be upheld. Robinson, supra, p 563; People v Parks, 98 Mich. App. 87; 296 N.W.2d 195 (1980); People v Reese, 86 Mich. App. 50; 272 N.W.2d 192 (1978). Moreover, it is foreseeable that absent the prejudice caused by the calling of Mr. Noble as a witness, even one juror might have voted to acquit the defendant. Swan, supra, p 33. People v Norwood, 70 Mich. App. 53, 57-58; 245 N.W.2d 170 (1976), lv den 397 Mich. 884 (1976). The jury found the question of guilt to be a close one. They deliberated for five days, requested assistance in evaluating the evidence on at least three occasions and displayed marked uncertainty throughout the process.
When viewed in context of the entire record, we are unable to declare that the unfair prejudice brought by the calling of Mr. Noble did not contribute to or affect the result. Therefore, the error was not harmless and defendant must be retried. We reiterate the position of the Michigan Supreme Court in People v White, 401 Mich. 482, 509-510; 257 N.W.2d 912 (1977), disapproving of the practice wherein the prosecution in a criminal case calls a witness which it is under no duty to call and who it has reason to know will assert the constitutional privilege against self-incrimination, thereby adding nothing of substance to the case, for the purpose of implanting an unfair inference in the minds of the jurors. "If the witness intends to claim the protection of the Fifth Amendment at trial, there is no way to prevent prejudice to the defendant absent barring that witness." Poma, supra, p 732. See People v McNary, 43 Mich. App. 134, 140-141; 203 N.W.2d 919 (1972).
Reversed and remanded for a new trial.