Opinion
Docket No. 22800.
Decided February 26, 1976.
Appeal from Tuscola, James P. Churchill, J. Submitted December 8, 1975, at Lansing. (Docket No. 22800.) Decided February 26, 1976.
Joseph A. Payne was convicted of delivery of LSD. Defendant appeals. Reversed and remanded for a new trial.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George Holmes, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, by Lee W. Atkinson, Assistant Attorney General), for the people.
Gary J. Crews, for defendant.
Before: McGREGOR, P.J., and T.M. BURNS and N.J. KAUFMAN, JJ.
On October 23, 1974, defendant was convicted by a jury of delivery of a controlled substance (LSD). MCLA 335.341; MSA 18.1070(41). He was sentenced to 1-1/2 to 7 years in prison. Defendant appeals as of right.
When the LSD was delivered by defendant, there were three other people present: Alvis Hicks, James Roblin and Rick LaPratt. Hicks purchased the controlled substance. LaPratt and Roblin were present when the sale was made. Prior to the LSD transaction, but on the same evening, it is alleged that Hicks purchased heroin from Roblin.
Roblin was indorsed and called as a witness at defendant's trial. After Roblin had answered some introductory questions, the prosecutor conferred with the trial judge. The prosecutor informed the judge that Roblin had been charged in a separate information with an offense alleged to have occurred on the same evening as defendant's offense. The prosecutor further indicated that Roblin had been advised to exercise his right to refuse to testify. The judge then informed Roblin that if he chose to answer any questions concerning the events of that evening, he would have to answer all such questions. Defense counsel objected, arguing that because Roblin was neither a codefendant nor an accomplice, he could refuse to answer any questions he felt would tend to incriminate him, but that he could answer those which did not. The trial judge, however, ruled that Roblin's testimony as to any events of that evening would waive his right to refuse to testify to the remainder of the events. Roblin thereafter exercised his privilege to refuse to testify. A similar conflict arose as to LaPratt's testimony later in the trial with the same result. The question before us on this appeal, of course, deals with the propriety of the trial court's ruling on the exercise of the witness's Fifth Amendment rights.
When res gestae witnesses who are neither codefendants nor charged accomplices testify as to events surrounding a crime do they thereby waive the right to refuse to testify as to other events surrounding the crime on the grounds that their answers may incriminate them?
A co-conspirator who is not a codefendant and who becomes a witness for the prosecution may not be required to incriminate himself as to the commission of some other crime. In People v Robinson, 306 Mich. 167, 176; 10 N.W.2d 817 (1943), the Court stated that:
"One who is on trial for a crime cannot be compelled to testify, either on his own behalf or for the people. However, if he elects to do so, he is held to have waived his constitutional right of refusing to answer any question material to the case, even though the answer tends to prove him guilty of some other crime than that for which he is on trial. [Citations omitted] But one who is not a codefendant, while he may turn State's evidence and become a voluntary witness on behalf of the State, is not thereby required to incriminate himself as to the commission of some other crime and he may assert his constitutional privilege."
See also People v Roxborough, 307 Mich. 575; 12 N.W.2d 466 (1943), People v Thomas, 55 Mich. App. 368; 222 N.W.2d 320 (1974), People v Robert Hall, 56 Mich. App. 10; 223 N.W.2d 340 (1974).
In the case at bar the witnesses were not charged with any crime arising out of the delivery of the LSD. They were neither codefendants nor charged accomplices. They could have testified as to the delivery of LSD and refused to testify as to any other event that occurred that evening that tended to incriminate them.
The remaining question is whether the incorrect ruling constituted reversible error. Because the ruling in effect precluded the witnesses from testifying at all as to the res gestae, we cannot say that the error was harmless. They may well have denied that a crime occurred, aiding the defense. This potential harm prevents us from concluding that the error was harmless beyond a reasonable doubt.
Defendant's conviction is reversed and this cause is remanded for a new trial consistent with this opinion.