People v. Manning , 434 Mich. 1 ( 1990 )


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  • Boyle, J.

    In August, 1984, appellant Robin Rick Manning and William John Luna were charged *4with first-degree murder, carrying a weapon with unlawful intent, and possession of a firearm during the commission of a felony in connection with the fatal shooting of Thomas Newvine. Newvine’s death stemmed from an argument between himself and Gilbert Morales at a neighborhood house party. During the course of the argument, New-vine forcefully ejected Morales from the party, at which time Morales threatened to return later and kill Newvine. After Morales was ejected from the party, he called William Luna’s house seeking backup in the fight he intended to continue with Newvine.

    Subsequently, the defendant and Luna drove to Morales’ home, at which time Morales, armed with two guns, a long-barreled and a shorter-barreled weapon, joined them. When the trio arrived at the party, Newvine was standing in the street immediately outside the home in which the party was being held. Shots were fired from the car and Newvine was killed.

    Defendant and William Luna were tried jointly for Newvine’s murder.1

    On the fifth day of trial, William Luna, on the basis of a plea bargain,2 pleaded guilty of second-degree murder. The defendant rejected a similar bargain against the advice of counsel.

    Outside the jury’s presence, Manning’s counsel then asserted that a new trial was necessary in order to prevent the jury from drawing from Luna’s plea an impermissible inference of Manning’s *5guilt. Defense counsel did not object to the trial court’s instruction advising the jury that Luna had pleaded guilty or limiting the substantive use of Luna’s plea, but alternatively requested that the trial court inform the jury only that Luna pleaded guilty without specifying the charge to which the plea had been entered. No request was made to limit the prosecution’s use of the plea, and no objection was interposed when the prosecution questioned Manning on direct examination regarding the plea.

    The trial court denied the motion for a mistrial and informed the jury that Luna pleaded guilty to second-degree murder, cautioning the jury that it was not to draw any inference from Luna’s guilty plea and that Manning remained entitled to the presumption of innocence. The instruction was given again prior to deliberation.

    Luna testified that Mr. Manning answered the call from Morales asking for backup and that he and Manning drove to Morales’ house where Morales brought the guns into the car and said he was going to "blow [the victim] away.” He further testified that Manning drove to the party, got out of the car, and took the .22 from the back seat where Morales had placed it. Manning then entered the front passenger side of the car, passed the .22 to Morales, took the shotgun from him, and, with Luna driving, the three continued to look for Newvine. While Luna testified that Manning did not fire the gun he had, other testimony established that guns were fired both from the front passenger and rear windows. Thus, although Luna testified that Morales fired the fatal shots, his testimony inculpated defendant Manning as an aider and abettor of first-degree murder.

    Luna was briefly questioned on direct examina*6tion about his plea.3 On cross-examination, a pointed attack on Luna’s credibility was made by defense counsel;4 following that attack, the prose*7cution on redirect examination made further reference to the plea in an effort to bolster Luna’s testimony.

    The jury found Manning guilty of first-degree murder, carrying a weapon with unlawful intent, and felony-firearm.

    After the Court of Appeals affirmed his conviction in an unpublished per curiam opinion, Manning sought leave to appeal in this Court. Leave was granted on two issues: 1) whether the trial court erred by denying the defendant’s motion for a mistrial, and 2) whether the trial court erred in denying the defendant’s request to keep from the jury the details of the codefendant’s guilty plea. For the reasons that follow, we affirm the defendant’s conviction.

    i

    THE MOTION FOR MISTRIAL

    The likelihood that Mr. Manning would be acquitted, or convicted of a lesser offense, was greatly diminished when Mr. Luna pleaded guilty and testified against him. However, the grant or denial of a motion for mistrial rests in the trial court’s sound discretion, and an abuse will be found only where denial of the motion deprived the defendant of a fair and impartial trial. People v Watson, 307 Mich 596; 12 NW2d 476 (1943). Simply put, Mr. Luna’s plea was an unfortunate turn of events for the defendant, but it did not *8constitute unfair prejudice. Luna’s testimony was competent, relevant and undeniably admissible, and the trial court’s unobjected to cautionary instruction on defendant’s right to be tried solely on the evidence of his own guilt appropriately addressed the potential prejudice inherent in the inculpatory nature of accomplice testimony.

    That Luna’s testimony was highly inculpatory is a proposition no reasonable person would dispute. However, were we to hold that the possibility of guilt by association could not be mitigated by a cautionary instruction, as the dissent suggests, it would logically follow that the only alternative would be to exclude accomplice testimony altogether. In this situation we rely on the "almost invariable assumption of the law that jurors follow their instructions . . . .” Richardson v Marsh, 481 US 200, 206; 107 S Ct 1702; 95 L Ed 2d 176 (1987).5

    We do not suggest that a trial court might not appropriately take the more drastic step of declaring a mistrial where it concludes that even the strongest curative instruction would be insufficient *9protection for a defendant. United States v Baete, 414 F2d 782 (CA 5, 1969).

    We merely hold that on this record, where there is no indication and no claim that the defendants attempted to exculpate themselves while destroying each other or that the prosecution timed the negotiations to achieve that result, the trial court’s action did not deprive the defendant of a fair trial.

    ii

    THE COURT’S INSTRUCTION REGARDING THE PLEA

    Having determined that William Luna’s mid-trial plea did not compel the declaration of a mistrial, the trial court was squarely faced with the issue regarding what to tell the jury about the absence of the codefendant from the defense table. The defense did not object to the jury being told that Luna had pleaded guilty. Rather, counsel asked only that the jury not be told that Luna’s plea was to the second-degree murder charge because "it could have some influence on their deliberations because of the magnitude of the charge.” Thus, defense counsel did not indicate any intent to forgo reference to the witness’ plea but, rather, sought to avoid an inference favorable to credibility from the magnitude of the charge. "[S]uch a limitation on the details of the plea agreements would have been both unfair to the witnesses and misleading to the jury.” United States v Whitehead, 619 F2d 523, 529 (CA 4, 1980).

    Suppression of Luna’s plea of guilty of second-degree murder could have confused and misled the jury.6 A strategic attempt to prevent the jury’s *10knowledge of the charge to which Luna pleaded could logically only rest on the possibility that the defendant could benefit if the jury incorrectly speculated that Luna had somehow wriggled out of accepting criminal responsibility for the events to which he testified and had pleaded guilty of some other lesser or entirely different offense. Indeed, the dissent’s identification of the "prejudice” to defendant Manning, on close examination, confirms that inviting such speculation is both the purpose and the function of the request to suppress. Obviously, it was not Luna’s plea, but his testimony admitting that he aided and abetted the murder that prejudiced Mr. Manning, albeit not in an unlawful sense. Since it was Luna’s testimony that incriminated Manning, it cannot logically be concluded that it was the details of the plea that "foreclosed the jury’s ability logically to come to any different conclusion regarding Manning,” post, pp 39-40. Stated otherwise, it is obvious that suppressing the charge to which he pleaded would not eliminate the risk of guilt by association inherent in Luna’s testimony but, rather, would only have the effect of preventing the jury from drawing any rehabilitating inference of Luna’s credibility from the fact that he had formally accepted criminal responsibility for his actions, a fact defense counsel alluded to in his reference to "the magnitude of the charge.”

    In sum, where it is apparent that a testifying accomplice will be impeached by his dealings with *11the government, we can perceive no unlawful prejudice to the defendant in the trial court’s telling the jury what has occurred, provided the jury is properly cautioned regarding the limited use of the plea. United States v Earley, 482 F2d 53 (CA 10, 1973), cert den 414 US 1111 (1973); United States v Beasley, 519 F2d 233, 239 (CA 5, 1975); United States v Jones, 425 F2d 1048, 1054 (CA 9, 1970).

    When a codefendant pleads guilty and is prepared to testify, a complete instruction avoids jury speculation, limits prejudice, and sets the stage for the issue the jury will almost invariably be asked to resolve, that is, the credibility of the accomplice’s testimony.

    Where it is clear, as it was both from the colloquy with defense counsel and counsel’s lack of objection to the prosecutor’s elicitation of the plea, that counsel did not intend to forgo use of the plea itself,7 and a cautionary instruction is given, we can perceive no error in the revelation of the offense pleaded to by a testifying codefendant. As Judge Higginbotham has observed, "[a] trial judge who is cognizant of the risks is not required to ignore his experience in trying such cases and engage in a pretended ignorance that defendant’s line of attack is yet unknown. Nor are we.” United States v Fusco, 748 F2d 996, 999 (CA 5, 1985).

    *12Ill

    THE PROSECUTION’S ELICITATION OF THE PLEA ON DIRECT EXAMINATION

    We are persuaded that the unresolved question of the intersection between the holdings in People v Atkins, 397 Mich 163; 243 NW2d 292 (1976), People v Woods, 416 Mich 581; 331 NW2d 707 (1982), and People v Lytal, 415 Mich 603; 329 NW2d 738 (1982), should be addressed for the benefit of the bench and bar. The two lines of cases represent distinct situations involving convictions of accomplice witnesses. The purpose of Atkins/Woods is preventative: to insure that conviction is not based on the prosecution’s knowing use of false material evidence. The rule that allows the factfinder to consider evidence of a guilty plea agreement is permissive and is based on the premise that the jury is ordinarily entitled to know of facts relevant to bias and motive for testimony. Because recent holdings may have furthered confusion regarding issues such as whether the prosecution’s duty to disclose is conditioned upon a request from defense counsel, or whether a plea can be revealed "when it is the plea itself which is the consideration,” People v Rosengren, 159 Mich App 492, 502; 407 NW2d 391 (1987), People v Standifer, 425 Mich 543; 390 NW2d 632 (1986), an explanation of the etiology of both lines of authority is in order.

    The Atkins/Woods disclosure requirement was squarely based on Napue v Illinois, 360 US 264; 79 S Ct 1173; 3 L Ed 2d 1217 (1959), and Giglio v United States, 405 US 150; 92 S Ct 763; 31 L Ed 2d 104 (1972), Atkins, supra, p 174, ns 11, 12, and Woods, supra, p 601. These cases stand for the proposition that the defendant’s right to due process is violated by a conviction based on false *13testimony that a witness was not promised consideration for his testimony, a fact, the Court added in Woods, that should be introduced in evidence. While it may well be that where the record establishes that defense counsel knew of the agreement and did not bring it out,8 a claim of error would be viewed as defense strategy on appeal, cf. Atkins, supra, pp 171-172 and Woods, supra, p 603, the prosecutor’s constitutional duty to disclose material evidence to defense counsel is not conditional on the defendant’s request. United States v Agurs, 427 US 97; 96 S Ct 2392; 49 L Ed 2d 342 (1976).

    To illustrate the distinction between the holdings, we assume a situation in which there is no attack on the accomplice witness. In such a situation, we do not believe Woods is the source of an affirmative right in the prosecution. In short, we do not regard the Atkins/Woods rule as giving the prosecutor a right to override a strategic decision by defense counsel to forgo attack on an accomplice and to authorize the prosecution to disclose such consideration to the jury irrespective of a request.9 In contrast, in the typical case the accomplice’s credibility is put in issue and consideration bears on that issue. In such a case, we would hold that the fact and terms of the plea agreement may be revealed to the jury during direct examination, and the timing of the revelation is within the trial court’s discretion.

    The origin of Lytal is the longstanding principle that a defendant is entitled to have the question of *14his guilt determined solely on the evidence against him. People v Crawl, 401 Mich 1, 33; 257 NW2d 86 (1977) (Levin, J.). As Justice Levin recognized in Crawl, a prosecutor is entitled on redirect examination to attempt to rebut the implication that an accomplice is testifying "in the hope of obtaining leniency . . . with evidence showing the nature of the concessions made to him.” Id., p 34.

    The well-established rule that a plea of a co-defendant or an accomplice is not evidence of a defendant’s guilt is only the starting point for discussion. It is equally well recognized that it is the purpose for which evidence is admitted that governs its proper use. Thus, while a host of cases hold that substantive use of the guilty plea of a codefendant is error, see, e.g., United States v Solomon, 795 F2d 747 (CA 9, 1987); United States v Baez, 703 F2d 453 (CA 10, 1983); United States v Duff, 707 F2d 1315 (CA 8, 1983), the guilty plea of an accomplice is admissible for impeachment or rehabilitation, where its use is appropriately limited. So much was recognized in Crawl and is otherwise well established. See United States v Rothman, 463 F2d 488 (CA 2, 1972); United States v Baete, supra, p 782; United States v Romeros, 600 F2d 1104 (CA 5, 1979); Baker v United States, 393 F2d 604 (CA 9, 1968).

    Lytal addressed a situation in which the prosecutor on direct examination elicited the fact of the plea agreement, including the charge to which the accomplices pleaded. Although not mentioned in the text of the opinion, a complete analysis of the admissibility on direct examination of a plea of guilty that is the "consideration,” id., p 612, also requires consideration of the effect of MRE 607(2) (A). The rule is entitled "Who May Impeach” and in relevant part provides:

    *15The credibility of a witness may be attacked by
    (2) the calling party if
    (A) the calling party is the prosecutor and he is obliged to call the witness.

    By contrast, FRE 607 provides:

    The credibility of a witness may be attacked by any party, including the party calling the witness.

    Thus, the federal rules reject the common-law rule that a party vouches for the credibility of the witnesses it calls, while MRE 607(2)(A) retains the rule for witnesses the prosecution is not "obliged to call.”

    Professors Weinstein and Berger observe that the only surprising aspect of the abandonment in the federal rules of the voucher rule is "that it has taken so long to be effected.” 3 Weinstein & Berger, Evidence, § 607[01], p 607-15. The common-law rule is based on an assumption that a party exercises free choice in soliciting witnesses and therefore guarantees the trustworthiness of a witness called by him. In fact, as the United States Supreme Court noted in Chambers v Mississippi, 410 US 284, 296; 93 S Ct 1038; 35 L Ed 2d 297 (1973):

    Whatever validity the "voucher” rule may have once enjoyed, and apart from whatever usefulness it retains today in the civil trial process, it bears little present relationship to the realities of the criminal process. It might have been logical for the early common law to require a party to vouch for the credibility of witnesses he brought before the jury to affirm his veracity. Having selected them especially for that purpose, the party might reasonably be expected to stand firmly behind their testimony. But in modern criminal trials, defen*16dants are rarely able to select their witnesses: they must take them where they find them.

    The common-law rule also undermines the law’s truth-seeking function, a principle endorsed by this Court in Rule 401 of the Michigan Rules of Evidence. As Weinstein and Berger further observe, the result of such a rule is to leave the calling party and the factfinder at the mercy of the adversary. If the truth lies on the side of the calling party and the witness tells the truth, he can be attacked by the adversary; if he tells a lie, he will not be attacked, and the calling party under the rule cannot attack unless it can show hostility and surprise. People v White, 401 Mich 482, 508-509; 257 NW2d 912 (1977).

    We are unable to reconstruct the reason for retention of the common-law voucher rule in MRE 607(2)(A). The Court’s rejection of the federal approach to prior inconsistent statements, compare FRE 801 and MRE 801, may evidence that a primary concern was the moré troublesome problem of the potential for admission of unreliable evidence in the guise of impeaching one’s own witness.10 See Weinstein & Berger, supra, pp 607-16 and 607-18. This was the issue that divided this Court as long ago as its decision in People v Elco, 131 Mich 519; 91 NW 755 (1902), where on rehearing, p 523, the Court held that the prosecution could impeach witnesses it was obliged by law to call. While the precise holding was limited to hostile "res gestae” witnesses, p 528, the Court’s discussion in Elco presaged by fifty years the United States Supreme Court’s observations concerning the voucher rule.11 The Court in Elco stated:_

    *17Whatever force [the voucher rule] may have in civil cases, it has no force in criminal ones, under the decisions of this court. In numerous decisions this court has held that the prosecuting attorney is bound to produce before the jury facts which tend to prove, not only guilt, but those which tend to prove innocence. . . . [M]any of the witnesses in criminal cases do not come from the ranks of those entitled to the presumption of truth-tellers. They are often the accomplices of criminals and participants in crime, who have confessed and promised to testify to escape punishment. . . . Witnesses are not manufactured by the prosecution to order. It must take them as it finds them. [Id., pp 525-526.]

    We need not consider an amendment of MRE 607 to resolve the tension between this Court’s preference for the admission of all relevant evidence, MRE 401, that is not more prejudicial than probative, MRE 403, and the anachronistic consequences of applying the voucher rule to bar revealing during direct examination the fact and terms of a plea concession given to an accomplice.12

    In the typical case the argument regarding admissibility of a plea agreement is one of timing, that is, whether the prosecutor may draw the sting from the defendant’s anticipated cross-examination by eliciting the agreement on direct examination or whether the defendant has a right to draw first blood. Lytal converted the rule that a codefendant’s plea of guilty cannot be used as substantive evidence of another’s guilt into a rule requiring reversal on the basis of an anticipatory rehabilitation of an accomplice impeached by a prosecution *18concession. Such arguments exalt strategy over substance. In the typical case, the existence of an agreement is "a double-edged sword,” and prejudice is rarely, if ever, to be found on review because the record reveals that each side has attempted to have its side cut more deeply. United States v Arroyo-Angulo, 580 F2d 1137, 1146 (CA 2, 1978), and People v Benton, 402 Mich 47; 260 NW2d 77 (1977).

    Although one option may be for the judge to call the witness for the purpose of placing the terms of the agreement in evidence, which is an exception to the voucher rule that the federal system had developed to cushion the effect of the nonimpeachment rule years before FRE 607 eliminated the voucher rule, United States v Browne, 313 F2d 197, 199 (CA 2, 1963); anno: Court’s witnesses (other than expert) in criminal prosecution, 67 ALR2d 538, we would not create a hard-and-fast rule that this is the only acceptable practice. Such an approach might only seed new ground for disputes regarding perceived strategic advantages at trial and claims of error on appeal.

    We would hold, therefore, that the trial court’s authority to control the order of proofs, MRE 611, and the completeness rule set forth in MRE 106, vest the trial court with appropriate discretion to determine when the fact and terms of an accomplice’s plea agreement may be admitted. As with other preliminary matters, the trial court should assure itself that a witness’ credibility will be put in question.13 Where it has done so, the court may either permit the prosecution to anticipate cross-examination by eliciting the terms of the agree*19ment on direct examination or direct that the terms and conditions of the agreement may be brought out first by defense counsel. The first approach is justified on the theory that in the case of a plea agreement, the prosecutor’s failure to allude to the facts may confuse or mislead the jury. As Judge Posner described it:

    A party ought to be able to extract the complete testimony of his witness, including the essential circumstances bearing on its believability, rather than forced to leave gaping holes to be poked at by his opponent. This is particularly true in the matter of a plea or immunity agreement, since the jury is bound to wonder from the outset why someone should be testifying to all these things that damn him along with the defendant, and having wondered may be shocked or puzzled to discover the reason for the first time on cross-examination. ... It is on this theory that defense counsel, in beginning their examination of a defendant, will often ask him about his criminal record, knowing that if they do not ask, the prosecutor will do so on cross-examination. [United States v LeFevour, 798 F2d 977, 983-984 (CA 7, 1986).]

    The second approach is justified both because in a given case a prediction (that the witness will be attacked) "may be inaccurate” and anticipated impeachment "has a tendency to become [a] self-fulfilling prophecy,” United States v Fusco, supra, pp 998-999 (opinion of Higginbotham, J.), and because of the trial judge’s superior position in evaluating the shifting existential realities of the trial process. As Professors Weinstein and Berger state in the preface of their work, there is

    the need for flexibility and discretion in the court’s conduct of particular cases and particularly in its application of the rules of evidence. . . . [T]he *20subtle interplay of a wide variety of factors . . . make a trial of any length take on a personality as strongly differentiated from other trials as one human being is from another. . . . These litigation psychodynamics, but dimly if at all perceived from the record, are nevertheless critical in trial supervision. In dealing with them, the oral tradition of the bar and a sense for what is proper, often furnish the best guides. [1 Weinstein & Berger, Evidence, p iv.]

    In sum, we would modify the voucher rule in favor of the trial court’s discretionary authority to permit or to limit the elicitation of matters concerning a witness’ credibility on direct examination. When the purpose of reference to a plea agreement is to further the task of evaluating credibility, the agreement is relevant and admissible without reference to the identity of the offering party. United States v Halbert, 640 F2d 1000 (CA 9, 1981).14 The record establishes the defendant’s intention not to forgo use of the guilty plea, his affirmative employment of it, and a cautionary instruction regarding the limited use of the evidence. We would hold that the fact that the agreement was revealed during direct examination of the accomplice does not constitute prejudicial error.

    CONCLUSION

    The trial court did not abuse its discretion in *21denying the motion for mistrial and, in view of the cautionary instruction, did not err in revealing the fact of the plea and the offense to which the plea had been given. Where it is clear that the credibility of a witness/accomplice’s testimony will be put in question, the order in which facts regarding bias are elicited is within the discretion of the trial judge.

    The decision of the Court of Appeals is affirmed.

    Riley, C.J., and Griffin, J., concurred with Boyle, J.

    Gilbert Morales was charged separately and convicted of first-degree murder and possession of a firearm during commission of a felony.

    Lima was charged with first-degree murder, felony-firearm and carrying a dangerous weapon with unlawful intent. In exchange for his plea of second-degree murder, and his testimony, the prosecutor dismissed the remaining charges.

    Following the trial court’s instruction, the prosecution called William Luna as a witness. On direct examination, the prosecution questioned Luna about his plea:

    Q. [Prosecutor]: Mr. Luna, you were a Defendant in this particular trial before today, were you not?
    A. [Mr. Luna]: Yes.
    Q. And earlier this morning, you pled guilty to second degree murder?
    A. Yes.

    On redirect examination, the prosecution made further reference to the plea in an effort to bolster the credibility of the codefendant. However, this was only after a pointed attack on Luna’s credibility by the defense:

    Q. [Defense Counsel]: In response to one of the Prosecuting Attorney’s questions, you stated or at least agreed with her statement that when you talked to the police, you were trying to, in effect, save your neck. Would that be an accurate statement?
    A. Yes.
    Q. Were you still trying to save your neck when you entered into a plea bargain agreement?
    A. Say that, you know.
    Q. Were you still trying to save your neck when you entered into the plea bargain agreement today?
    A. Well, all I just want to do is tell the truth like it was because. . .
    Q. Why did you suddenly want to tell the truth after you lied so much?
    A. Because, you know, that’s the way I feel about it, you know.
    Q. What happened that suddenly changed your mind that you feel this way?
    A. I just didn’t want to take it to trial because, you know, I’m guilty — we’re guilty, you know.
    Q. Mr. Luna, isn’t the truth of the matter that you didn’t want to take it to trial because you didn’t want to risk being found guilty by the jury?
    A. No, not that. It’s just like I said. I wanted to plead guilty because I am guilty.
    Q. You wanted to take the sure thing, didn’t you?
    A. What’s that?
    Q. You wanted to take the plea bargain and take the sure thing, didn’t you?
    *7Mrs. McLeod: Objection, Your Honor. I think that counsel and I should approach the bench at this point.
    (Whereupon a discussion was held off the record.)
    Q. I’m not certain that you answered the last question, Mr. Luna. My question to you was: Didn’t you want to take the plea bargain because you knew what was going to happen?
    A. No. I took it because, you know, it’s the way it is.

    The dissent fails to articulate the standard by which it determines that the instruction given in this case presents a situation distinct from the myriad of instances where jurors are asked to give effect to evidence for one purpose and not for others. The dissent places heavy reliance on Bruton v United States, 391 US 123, 135-136; 88 S Ct 1620; 20 L Ed 2d 476 (1968), where it was held that the admission of a nontestifying codefendant’s "powerfully incriminating’’ statements in violation of the defendant’s confrontation right could not be cured by a limiting instruction. Not only were the improperly admitted statements of the nontestifying codefendant "devastating,” they were incapable of testing through cross-examination.

    The United States Supreme Court has cautioned that Bruton creates only a "narrow exception” to the rule that juries are presumed to follow instructions unless there is an "overwhelming probability” that the jury cannot follow the instruction and the result would be devastating to the defendant’s case. Richardson, supra, p 208. The dissent simply has not explained why the jury in this case should be presumed to have disregarded the instruction that the defendant was to be tried solely on the evidence of his own guilt, without reference to Luna’s plea of guilty of second-degree murder.

    If the issue in this case was whether the defendant was entitled to have the jury learn all the terms of the plea agreement, Justice Levin’s observation that the jury was left to speculate on the extent of the consideration would be relevant. It is not. Defendant’s claim is *10not that error occurred because of the jury’s lack of knowledge; it is that his conviction should be reversed because truthful facts were revealed to the jury. Further, since Luna received the very concession he was promised, a concession which the defendant apparently did not want presented to this jury, presumably for the same reasons he did not want the jury to know the offense to which Luna pled, we are unable to understand how it could be argued that the defendant should have been granted a mistrial so that he would have the opportunity to show this concession at a second trial.

    The dissent incorrectly assumes that this opinion would preclude introduction of an accomplice/witness’ guilty plea "where a defendant chooses not to impeach the credibility of that witness on the basis of that plea.” Post, p 36, n 9, p 44. This case does not present that situation. The answer to that question must await a case in which a defendant claims that the plea was not relevant to the credibility issue and the prosecution claims it was. To be sure, it is the defendant’s prerogative to decide whether he will pursue impeachment, but it is the trial judge’s prerogative to initially determine what facts are relevant to the line of impeachment pursued. Hence, our basic disagreement here is with the dissent’s conclusion that counsel may choose to pursue a line of relevant impeachment but prevent exploration of facts undeniably relevant to that issue.

    Quaere: Would defense counsel’s waiver of the jury’s knowledge of such facts constitute ineffective assistance of counsel?

    Where defense counsel eschews impeachment of the accomplice and the purpose of disclosure is solely to protect the defendant’s right not to be convicted on false testimony, the canons suggest that the prosecutor’s duty to disclose may be satisfied by bringing the agreement to the attention of counsel and the court. ABA Model Rule of Professional Conduct, Rule 3.8(d); Michigan Rules of Professional Conduct, Rule 3.8(d).

    A plea concession given to a counseled defendant, which is typically of record, does not present the same concerns.

    Chambers v Mississippi, supra, p 296.

    The current statute, 1986 PA 46, MCL 767.40a; MSA 28.980(1) provides:

    (6) Any party may within the discretion of the court impeach or cross-examine any witnesses as though the witness had been called by another party.

    If the defendant makes a timely objection to elicitation of the plea agreement, the inevitability of impeachment may become apparent. It would then fall to the defendant to disclaim any intent to impeach and on the trial judge to either sustain the objection or permit the questioning.

    The United States Courts of Appeals for the First, Second, Fourth, Fifth, Sixth, Seventh, and Ninth Circuits permit elicitation of the agreement on direct examination to assess credibility. United States v Winter, 663 F2d 1120 (CA 1, 1981); United States v Freeman, 302 F2d 347 (CA 2, 1962); United States v Henderson, 717 F2d 135 (CA 4, 1983); United States v Veltre, 591 F2d 347 (CA 5, 1979); United States v Townsend, 796 F2d 158 (CA 6, 1986); United States v Hedman, 630 F2d 1184 (CA 7, 1980); United States v Roberts, 618 F2d 530 (CA 9, 1980). The court observes in Halbert, p 1005, that the plea agreement may be misused "on the level of prejudicial error” in certain circumstances such as where the plea is clearly offered as substantive evidence of guilt.

Document Info

Docket Number: 81682, (Calendar No. 6)

Citation Numbers: 450 N.W.2d 534, 434 Mich. 1

Judges: Archer, Boyle, Brickley, Cavanagh, Griffin, Levin, Riley

Filed Date: 1/5/1990

Precedential Status: Precedential

Modified Date: 8/7/2023