People v. Standifer , 425 Mich. 543 ( 1986 )

Boyle, J.

We reverse the decision of the Court of Appeals and affirm the defendant’s conviction. There was no error in the prosecutor’s impeachment of a recanting witness by inquiring into the consideration given him for his truthful testimony. Neither People v Lytal, 415 Mich 603; 329 NW2d 738 (1982), nor People v Atkins, 397 Mich 163; 243 NW2d 292 (1976), is applicable on these facts. Further, if error existed in the prosecution’s questioning concerning Mr. Burchette’s guilty plea, no manifest injustice mandates reversal of Mr. Stan-difer’s conviction. Defense counsel had the knowledge, the opportunity, and the ability to clarify any ambiguity concerning Mr. Burchette’s guilty plea. Since the witness testified to his own and Standifer’s innocence, there was no possible "guilt by association” by virtue of his testimony.

i

FACTS

Jesse Standifer, the defendant in this case, and Charles Burchette were both charged with forcing Thomas Hart to engage in sexual acts on two different dates during their mutual imprisonment at the Monroe County jail. Mr. Burchette pled guilty to a reduced charge in the incident alleged to have occurred on November 8, 1981, and agreed to testify against Mr. Standifer in trials for both the October 25, 1981, and the November 8, 1981, incidents.¹ In exchange, the charges against Bur-chette for the October 25, 1981, incident were to be dropped.

During direct examination of Mr. Burchette at Mr. Standifer’s trial for the alleged October 25, 1981, sexual assault, the first reference to Mr. Burchette’s guilty plea occurred:

Q. Okay. Now, Mr. Burchette, you know what the charges are that we’re here for today, don’t you?

A. Yes.

Q. In fact you were also charged with criminal sexual conduct; is that correct?

A. Yes.

Q. And that was — you were charged with criminal sexual conduct involving Thomas Hart; is that right?_

A. Yes.

Q. And I wonder if you can, in your own words, Mr. Burchette, explain the outcome of that charge as it applies to you.

A. What went on?

Q. Yeah. Well, you pled guilty, right?

A. Yes.

Q. And you were given a plea bargain; is that correct?

A. Yes.

Q. Could you just explain what that was so the jury knows.

A. Like what went on over here?

Q. Well, what was the bargain that was given to you? Do you understand what it was?

A. I had a three and a half to fifteen — third degree, and a three to ten on a b&e.

Q. Okay. And did you also agree to testify in this case?

A. Yes.

Defense counsel made no objection to the exchange. Contrary to his earlier statement to the police, Burchette proceeded to testify favorably to Standifer. Burchette said that after having oral sex performed on himself by the complainant in the shower, he saw Standifer go into the shower and remain a couple of minutes with the complainant. According to Burchette, the complainant voluntarily performed oral sex with Burchette, and Burchette knew nothing about whether Stan-difer had sex, forcible or consensual, with the complainant. When the prosecution sought to place Burchette’s prior statement to the police and his guilty plea in evidence as prior inconsistent statements, defense counsel objected to such impeachment of Mr. Burchette on the basis that the prosecution was impeaching its own witness. The trial court ruled that the impeachment was permissible under MRE 607(2)(C) because Mr. Bur-chette’s testimony was unexpected by and injurious to the prosecution’s case. Defense counsel then made a general objection to "the whole line of proceedings here” and moved for a mistrial, which was denied. The second reference to Burchette’s guilty plea then occurred. Confronted with his prior statement to the police, Burchette agreed that he had previously said that he forced Hart to engage in sex with himself and with Standifer. His trial testimony, however, was that he didn’t know whether Hart performed fellatio on Standifer, and he denied using force or coercion to force Hart to perform fellatio on either Standifer or himself, his guilty plea and prior statement notwithstanding.

During closing arguments, counsel focused upon Burchette’s credibility, or lack thereof. The prosecution argued that the jury should not believe Burchette’s testimony exculpating Standifer because Burchette had lied about his own sexual activities with the complainant — Burchette denied using force, contrary to his prior statement to the police.² The defense argued that none of the prosecution’s inmate-witnesses were particularly truthful, but that when a prosecution witness like Burchette testified favorably to the defense, that is well worth noting.³ On rebuttal, the prosecution argued more strongly that Burchette should not be believed:

[F]or some reason all of a sudden we’re suppose [sic] to believe Burchette who was given a plea bargain to come in here and testify, and changed his story, which is pretty obvious.

I’m going to ask you something. Consider this when you’re considering things in there. Would the prosecuting attorney give a guy a plea bargain, drop a charge against him, et cetera, in exchange for his testimony if this was the kind of testimony he had promised to give? Now Burchette is the kind of guy who goes out and he’ll get whatever he can — obviously we got burned._

II

LEGAL BACKGROUND

The rule of evidence which forms the legal backdrop for the instant case is the common-law rule that parties cannot impeach their own witnesses. See generally McCormick, Evidence (3d ed), § 38, pp 82-85. The rule is based upon two grounds: that the party calling the witness vouches for the credibility of each witness called, and that allowing impeachment of one’s own witness allows too much coercive power to the calling party. Id., p 84. The rule is being abandoned. Id., p 82. See, e.g., FRE 607: "The credibility of a witness may be attacked by any party, including the party calling him.” Michigan, however, retains a modified version of the rule. MRE 607 provides:

The credibility of a witness may be attacked by

(1) an opposing party; or

(2) the calling party if

(A) the calling party is the prosecutor and he is obliged to call the witness,

(B) in a civil case, the witness is an opposite party or an employee or agent of an opposite party, or

(C) the witness’s testimony was contrary to that which the calling party had anticipated and was actually injurious to the calling party’s case.

Since the prosecution is not obliged to call an accomplice, when it does so, the prosecution is said to vouch for the witness’ testimony, and the witness cannot generally be impeached. In People v White, 401 Mich 482; 257 NW2d 912 (1977), this rule was applied to find error where a witness had been called by the prosecution with prior knowledge that the witness might recant. The Court found that in such circumstance both surprise and hostility were required before the witness could be impeached. In the instant case, there was no defense objection to the initial prosecutorial questioning concerning Burchette’s plea bargain. When defendant’s counsel objected to the plaintiffs questioning of Burchette after Burchette testified favorably to the defendant, the trial court correctly concluded that Burchette’s testimony was both unexpected and injurious.

In People v Atkins, supra, this Court held that the prosecution or the judge must disclose, on request of defense counsel, any actual or reasonably expected immunity used to obtain the testimony of an accomplice or a coconspirator. This requirement is based upon the need of the jury to know the facts relevant to the credibility of a witness. Atkins stands for the proposition that a prosecutor is obliged to disclose agreements made in exchange for a witness’ testimony.

In People v Lytal, supra, p 612, this Court cursorily adopted in three short paragraphs a rule, new,/to the jurisprudence of this state, that "the conviction of another person involved in the criminal enterprise is not admissible at defendant’s separate trial.” This rule was described as "an established rule of law,” id., with citation to Justice Levin’s minority opinion in People v Crawl, 401 Mich 1; 257 NW2d 86 (1977).⁴ The portion of Lytal with which we are today concerned held that it was error for the trial court to allow the prosecution to elicit the prior convictions after trial of two accomplice-witnesses to the same crime as that charged against Lytal. Since no plea bargain was negotiated with the two accomplices, there was no consideration to be revealed to the jury under People v Atkins, supra. Lytal, supra, p 612. Lytal apparently stands for the proposition that where no consideration is offered the prosecution may not offer evidence of the conviction by trial of an accomplice-witness, although the Court in dicta added that where consideration had been offered, that could be shown without revealing the fact of conviction. Id. Barring evidence of consideration provided in exchange for a plea is not the rule of the case, and has not been endorsed by any other authority from this Court. Nonetheless, in the instant case, the Court of Appeals construed Lytal as standing for the proposition that the "conviction of an accomplice-witness involved in the same crime as that which defendant is being tried for is not admissible.” The Court below did not make the essential distinction between a conviction by trial and a conviction by plea where a bargain is involved. Cf. People v Buschard (On Remand), 129 Mich App 160, 163-164; 341 NW2d 260 (1983) (Lytal not applicable to a plea agreement involving consideration). The Court of Appeals in the instant case did observe that, while it believed the agreement should be admissible for impeachment purposes, it felt bound by the majority opinion in People v White, supra.⁵

Ill

ANALYSIS

Justice Levin’s basis for affirming the Court of Appeals reversal of the trial court in the instant case is unclear. Justice Levin writes that "[t]he prosecutor did not bring out the fact that Bur-chette’s plea of guilty was for an act of criminal sexual conduct that occurred about two weeks after the act for which Standifer was standing trial.” Justice Levin further complains that the disclosure made by the prosecution was "incomplete and misleading.” Justice Levin also says that the prosecutor did not "bring out that Burchette pled guilty at the same time to breaking and entering an unoccupied dwelling and was sentenced to serve three to ten years.” Justice Levin concludes that the prosecution "thus was able to paint a picture of Standifer’s guilt by association with Burchette,” presumably in violation of Lytal.

Any omission by the prosecutor concerning the date of the offense to which Burchette pled guilty was simply unimportant. Mr. Standifer’s counsel was quite attuned to the circumstances of Mr. Burchette’s plea, and simply chose as a matter of trial tactics not to dwell upon Burchette’s guilty plea on cross-examination.

Mr. Garrett, the defense counsel below, was aware from the first that two different incidents were charged against both his client and Mr. Burchette. At a February 19, 1982, pretrial conference held for all the defendants involved in both incidents, Mr. Garrett moved to consolidate the October 25, 1981, and November 8, 1981, charges against Mr. Standifer and to separate Mr. Standi-fer’s trial(s) from Mr. Burchette’s. Furthermore, Mr. Garrett was familiar with and in possession of a copy of Mr. Burchette’s plea transcript for the November 8 incident. Indeed, at the trial in the instant case, it was Mr. Garrett who provided the copy of Burchette’s bargain which the trial judge read into the Standifer record.

Thus, the only remaining basis for Justice Lev-in’s opinion is that the bare fact that Burchette pled guilty to a similar offense requires reversal, presumably under this Court’s opinion in Lytal. Lytal is not, however, clearly applicable to this case. As Justice Levin concedes, a plea bargain was reached with Burchette. It provided that in exchange for his testimony, the prosecution would dismiss the esc i charge in the October 25 case, accept a plea to esc n in relation to the November 8 incident, and recommend a three- to fifteen-year sentence. Lytal does not in terms apply to this situation because a determinative factor in Lytal was the complete absence of any bargain.⁶

Justice Levin also appears sub silentio to limit Atkins to promises of consideration given to an accomplice who testifies favorably to the prosecution. This is contrary to the rationale of Atkins— the need for the jury to know facts relevant to the credibility of a witness. The effect of this reasoning would be that the jury would be permitted to know those facts where the accomplice testifies favorably to the people, but would be deprived of the same facts where an accomplice unexpectedly recants and gives testimony which exculpates the defendant.

Justice Levin’s opinion would have the effect of creating a rule of reversal per se whenever a conviction of an accomplice, by trial or by plea, is used by the prosecution to impeach that accomplice’s testimony in the separate trial of another defendant. Such a per se rule would keep facts relevant to an essential jury function — assessment of the credibility of witnesses — away from the jury without any sound policy reason or solid Michigan decisional base. MRE 607, while narrower than FRE 607, was found by the trial court to allow the impeachment challenged in this case. While MRE 403⁷ and MRE 609(a)⁸ recognize that prejudicial effect may require exclusion of otherwise relevant evidence in a given case, there was no objection in this case on the grounds of prejudice. Hence, the trial court had no opportunity to balance the probative value of Mr. Burchette’s plea against the prejudice, if any, to Mr. Standifer.

IV

NO MANIFEST INJUSTICE

Generally, to preserve an allegedly erroneous admission of evidence for appellate review, timely objection must be made which states the specific ground of objection. MRE 103(a)(1). The standard of review for unobjected-to error is "whether manifest injustice has occurred.” People v Kelly, 423 Mich 261, 277, 281; 378 NW2d 365 (1985). The proper standard in this case is whether manifest injustice has occurred rather than Justice Levin’s rule of automatic reversal. Under that standard, Mr. Standifer’s conviction is affirmed.

At the time of this trial, the first discussion of Mr. Burchette’s plea was error because MRE 607 precluded impeaching one’s own witness. However, there was no objection and no finding even of prejudice to the defendant, much less of manifest injustice. The mere mention of Burchette’s plea, in these circumstances, could not constitute error requiring reversal. Defense counsel certainly did not think so. Unless counsel’s failure to object constituted lack of effective assistance of counsel, the first discussion of Burchette’s plea should provide no basis for reversal.

Neither should the second discussion of Bur-chette’s guilty plea furnish the basis for reversal. Once Burchette testified in Standifer’s favor, impeachment of his testimony became relevant to the prosecution rather than the defense. Under MRE 607, the impeachment was permissible because Burchette’s testimony was unexpected and actually injurious. There was no objection based upon possible prejudice to Mr. Standifer, and there was no finding by the trial court of such prejudice as would outweigh the probative value vis-á-vis Bur-chette’s credibility. The inconsistent stories told by Burchette on the stand, in his plea, and in his statement to the police certainly would cast grave doubt upon any witness’ truthfulness.⁹

Even if the Court had determined to limit Atkins or to expand Lytal, the instant case does not present any manifest injustice. This is not a case in which the prosecutor placed a witness he knew would recant on the stand for the purpose of revealing the conviction and engendering prejudicial effect on the issue of the defendant’s guilt or innocence. This is not a case in which the prosecution buttressed the truthfulness of the testimony of a cooperating accomplice. This is a case in which the initial inquiry into the plea was so innocuous as to call for no objection at all by defense counsel. In the inquiry which drew an objection, the prosecutor was seeking to impeach a recanting witness. That critical factual distinction is illustrated by the trial conduct of defense counsel. Any omission by defense counsel of a full explanation of the plea bargain was a deliberate election not to pursue any omitted facts with the jury.

The record clearly establishes that Mr. Garrett was not surprised or misled concerning the date of the offense to which Burchette pled guilty. Mr. Garrett could, on cross-examination of Burchette, have cleared up any ambiguity concerning the incident to which Burchette had pled guilty.¹⁰ That he not only did not do so, but also objected to the prosecutor’s inquiry, was quite obviously because it was in his client’s interest to prevent Burchette’s exculpatory testimony from being impeached. Having received the benefit of Burchette’s testimony that he did not see the defendant engage in a sexual act, defense counsel made a wise tactical decision not to pursue the issue further by reminding the jury of Burchette’s plea.

The result of Justice Levin’s reasoning would be that where, as here, the defense has little interest in fully exploring the issue, information is kept from the jury regardless of whether the prejudicial effect, if any, is outweighed by the probative value of the conviction on the witness’ credibility. The jury’s ability to evaluate credibility would be needlessly hindered by a rule of exclusion which amounts to little more than gamesmanship.* ¹¹

The Court of Appeals read Lytal to preclude the revelation of Mr. Burchette’s conviction. We con-elude that neither Lytal nor Atkins precludes the showing of consideration to, and conviction of, an "accomplice” witness where a favorable plea bargain creates the possibility of witness bias or otherwise is relevant to a witness’ credibility. If a prosecution witness testifies against a defendant, Atkins provides that the defense can compel disclosure of a bargain. Where a prosecution witness presents unexpected testimony favorable to the defense, as occurred in the second discussion of Burchette’s plea in this case, there is no tactical reason for the defense to impeach that witness. In such a case, the prosecution should, subject to MRE 607, 609, and 403, be able to impeach the wdtness with disclosure of a plea bargain where relevant to the witness’ credibility. Any other rule elevates form over substance and keeps relevant evidence from the jury, despite the fact that not a single consideration of policy or equity is advanced for its adoption.

There was no objection to the prosecutor’s initial inquiry into Burchette’s plea. Since no manifest injustice has been shown, that inquiry cannot be the basis for reversal of Mr. Standifer’s conviction. The fact that Burchette admitted the offense to the police and pled guilty, then at trial denied committing the offense that was the basis of the plea, has a clear bearing on his credibility. Since the prosecution elicited discussion of the plea a second time because Burchette unexpectedly testified in favor of Standifer, there was no error in relation to this second inquiry into his plea which would require reversal. Indeed, while the initial inquiry may have been error under MRE 607, it would be harmless error, even if an objection had been made, in light of the later permissible admission of the plea for impeachment purposes.

V

CONCLUSION

Defense counsel had the ability to correct any misconception held by the jury which he wished to correct concerning Mr. Burchette’s plea bargain. He quite properly determined that it was not in his client’s interest to do so. Defense counsel cross-examined Burchette concerning the plea bargain at issue in this case, but made no attempt to clarify the factors complained of on appeal because his examination had as its raison d’étre not the impeachment of Burchette, but rather the theory that Burchette alone among the other inmates should.be believed. Therefore, we reverse the judgment of the Court of Appeals and reinstate the defendant’s conviction.

Williams, C.J., and Brickley, J., concurred with Boyle, J.

1 rhe actual plea bargain to which Mr. Burchette agreed for the November 8,1981, incident follows:

Mr. Lockwood: The entire plea bargain, your Honor, is that the Defendant Charles Burchette will plead guilty to Count n of the amended information in case 19131 [November 8, 1981 incident], that being criminal sexual conduct in the third degree — it carries a maximum of fifteen years. The People will dismiss Count i, the original count of criminal sexual conduct in that case. The People also will dismiss a charge of criminal sexual conduct in the first degree in case 19139 [October 25, 1981 incident] which is before this court scheduled for trial on May the 5th, I believe. Further, the Defendant will plead guilty to breaking and entering an unoccupied dwelling in case 18984 presently pending before Judge Sullivan.

Mr. Lockwood: The Defendant Charles Burchette has also agreed to give truthful testimony in People versus Jesse Standi-fer, case 19132 [November 8, 1981 incident] and case 19140 [October 25, 1981 incident], which are companion cases to the two criminal sexual conduct cases in front of your Honor. The People have further agreed in each of these cases to — in their recommendation in sentencing — to recommend a minimum of three years — a minimum of no more than three years. I believe the police have agreed to recommend a minimum in these cases of no more than five years.

2 In reviewing the testimony for and against Mr. Standifer, the prosecutor urged the jury to believe the witnesses testifying against the defendant and to disregard Burchette’s testimony:

The only testimony that we have [favoring Mr. Standifer] are [sic] Mr. Burchette’s, which I would ask you to totally disregard —you saw him on the stand. A person who has pled guilty to forcing Mr. Hart to give him a head job, he comes before you and says it never happened, I never forced him. And Mr. Standifer basically says — he comes before you, I didn’t do it. That’s all. Not that Mr. Hart had a grudge against him, or whatever happened. He says Mr. Hart didn’t have any money— we know that he did — and that he approached me for sexual favors to get money. I don’t think that story is believable at all.

I’d ask you to believe Mr. Hart, Mr. England, and I ask you to find the defendant guilty ....

3 Defense counsel argued:

The Prosecutor says to you: We called Charlie Burchette. He was going to be our star witness. He pled to one of the offenses of criminal sexual conduct in the third degree on November 8th. He gets up on the stand, but he doesn’t say that Standifer forced him to pick on Tom Hart. In fact, what the prosecution attempts to do when they don’t like what Burchette testifies to is do what’s known as impeach their own witness. By impeaching their own witness, whom they called, they grab a statement and they have him read through the statement. Burchette said to you, look, when I gave that statement, I’m 18,1 didn’t have a lawyer, I wanted a lawyer, the cops wouldn’t give me a lawyer, I said it, whatever had to be said, and said it that way, but that was not the truth what I said, what I’m telling you in court is the truth.

He says that Standifer didn’t put him up to anything, that he had sex with Charlie — with Thomas Hart on a number of occasions, that Hart propositioned him — I think he referred to him as a homosexual, that under no circumstances did Standi-fer use or threaten force or coercion on Hart.

The prosecution says to you, well, we had to call these other guys but don’t you believe the other guys we called. They called Anthony Willert. Willert didn’t observe anything. They called Carl Trouten. Trouten did not observe any so-called sex acts. They also called I think a Kenneth Lorton, and Lorton himself didn’t observe any so-called sex acts. Maybe they didn’t observe any so-called sex acts because — whether you think it’s disgusting or not — the defendant and Hart went back into the shower while the other guys were watching tv and a sex act was performed.

4 In People v Crawl, no Michigan case was cited for the proposition that "[a]s a long-established rule of the common law, an accomplice’s plea of guilty ... is not admissible against another person.” Id., p 33, n 24. One Michigan Court of Appeals case was cited for the proposition that a "conviction following a trial is not admissible against another person.” Id. The Michigan case cited, People v Eldridge, 17 Mich App 306, 312-313; 169 NW2d 497 (1969), found that reversal was required due to the overwhelming prejudice created in that case by impeachment testimony. It is certainly an established rule that conviction of an accomplice is not substantive evidence of a defendant’s guilt, but it is certainly not an established rule that consideration received in exchange for testimony is barred when offered for impeachment purposes.

5 Contrary to Justice Levin’s opinion, the Court of Appeals in this case did not state that "[i]t was apparent to the Court of Appeals . . . that the prosecutor sought .... to create the impression that Bur-chette had pled guilty to forcing Hart to commit a sexual act with Standifer, contrary to Burchette’s testimony at the trial. . . .”

6 In his opinion, Justice Levin alleges for the first time that Burchette was not an accomplice. It is unclear why Lytal is even cited as a basis for reversal in the instant case if Burchette was not an accomplice.

7 MRE 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

8 MRE 609(a) provides:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if

1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and

2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination.

While MRE 609(a), by its terms, applies to cross-examination rather than direct examination, the policy behind the rule may be relevant in a situation where a party impeaches its own witness on direct. However, since there was no proper objection in the instant case, there is no need to determine the degree to which the MRE 609(a) requirements would apply to impeachment on direct examination.

9 Justice Levin misconstrues the prosecutor’s argument to the jury when he says it was used to "reinforce the implication of guilt by association.” The argument quoted by Justice Levin was used by the prosecutor to argue that Burchette had lied in the past and should therefore not be believed. This was a perfectly legitimate and relevant argument once Burchette unexpectedly testified favorably to the defense.

10 Indeed, during closing argument defense counsel told the jury, "[A]nd also they brought in Charles Burchette who pled guilty to apparently an offense on November 8th, and yet we’re dealing with October 25th.”

11 As noted in the partial concurrence and partial dissent in White, supra:

At retrial, unless the defense calls Hodges as a witness, thereby opening him up for impeachment, the jurors will never hear unquestionably relevant evidence that is at least as credible as Hodges’ subsequent testimony exculpating the defendant. . . .

The jurors should hear both sides of the story before making a decision on the defendant’s guilt or innocence. They should hear Hodges’ prior inculpatory testimony, his present exculpatory testimony and any explanation he may have for the change. Then, presented with the whole picture, the jurors can intelligently decide who they will believe.

[Then] [proposed Michigan Rule of Evidence 607 permits a party to impeach his or her own witness. This case demonstrates the necessity for such a rule. [Id., pp 514-515 (Williams and Coleman, JJ., concurring in part, dissenting in part).]