A
prosecutor charged Michael Glenn with first-degree murder
armed robbery, and attempted armed robbery. The charges arose
from a homicide that occurred during a robbery of two persons
attempting to buy drugs. Before trial, Glenn notified the
prosecutor that he intended to assert an alibi defense. Glenn
claimed that, when
the homicide had occurred, he had hosted a barbecue at his
home and watched a football game on television. Also, Glenn
notified the prosecutor that he intended to call Lanier as a
witness at trial.
Before
trial, the prosecutor deposed Lanier. After the deposition,
Glenn, who was detained, telephoned Derrick Ellis, who
telephoned Lanier. During the three-way telephone call
recorded by the jail, Glenn and Lanier spoke about
Glenn's criminal case (Respondent's Exhibit 1b at
212-21)[2]:
[Recording:] Hello. This is [a] collect call from
Hillsborough County Jail. To accept charges press - to refuse
charges press one. Thank you for using T-Medix.
Hello? What's up, (unintelligible). Hey man, I got
(unintelligible) f*cked over, man. You got what? . . . What?
I got the depo (unintelligible) got typed up. He came out
here yesterday, um, the guy subpoenaed us. Hey, ah, you told
him about the depo? No, I forgot to ask him. (Unintelligible)
all right. (Unintelligible) f*ck, see what's going on
(unintelligible).
...
Man, you supposed to tell him straight up, man, man.
(Unintelligible) oh, man, you listen (unintelligible) you
listen up. Man, this is my sh*t, and see what I said.
(Unintelligible) you I didn't, man? Okay (unintelligible)
you say I didn't say that. I did say that, bro. You was
home doing house arrest, bro. (Unintelligible) football game
(unintelligible) I know for a fact you didn't do that
(unintelligible). Straight up. (Unintelligible) look at me. I
(unintelligible) verify that up, man.
(Unintelligible) man. I got two charges (unintelligible). I
fittin' to get ready to go to court at 1:30, man. Yeah.
(Unintelligible) same time, you know what I'm saying? You
put me down (unintelligible). You need to come up and step
up, my man. They got me (unintelligible) they got me
(unintelligible). Nick-nick, put me down on the schedule, I
will come see you (unintelligible) I work from like six in
the morning (unintelligible).
I really need you in court today, man. Bro, (unintelligible)
know what's going on, bro. That's what I'm
telling you. Lace me up. Lace me all the way up.
...
I said - I told - I told (unintelligible). Look, man, I
fittin' to (unintelligible) and hear motions, man. To
hear who? To hear my motions, man. (Unintelligible) illegally
arrested for (unintelligible). You going to a motion, right?
Go ahead, go ahead. Pre-trial and everything, man.
(Unintelligible) ain't nothing (unintelligible) going for
a motion, ain't it (unintelligible) pre-trial today
(unintelligible) pre-trial today. (Unintelligible). Man, man,
trial, you know what I'm saying? (Unintelligible) just
put me on the schedule (unintelligible). Just [put] me down
on the schedule tomorrow (unintelligible).
...
Trying to feed me to the wolves (unintelligible), don't
nobody know that? (Unintelligible). Hey, all we have are
dreams (unintelligible) other attorneys who [are] willing to
take this case (unintelligible). Yeah. (Unintelligible)
[took] my money, playing around with it, man. And I got
charged - I got charged
- everybody else wants 25, 30, 40, 50. Now I got to trying
[to] figure out (unintelligible) just for - just for
get[ting] on my case. Then he tell me (unintelligible) he
going to run with it all the way and get me cleared because
he know I ain't do it. (Unintelligible) out to the wolves
like that.
...
The subpoena only thing cover for you, man. (Unintelligible)
listen, I talked to Morris before I left St. Pete
(unintelligible). Morris (unintelligible) told me exactly
what [to] say down here. Hey, look here now, man, check this
out, man. (Unintelligible). Look (unintelligible) pre-trial
(unintelligible) you could be, you know what I'm saying
(unintelligible) a good witness for me, man. (Unintelligible)
Miranda rights and all that junk, man. You can't
just show up in court like that (unintelligible) you hear me?
You got to be subpoenaed or you got to be on the docket or
something, bro. I just can't show up, walk in there and
be, like, “Yeah, yeah, this is really what
happened.” [It] don't go like that.
...
I told them exactly what the game plan was, you dig? Yeah,
man. I just told him, look, I wasn't able to make it out
there to your house to watch the game (unintelligible) b*tch,
you dig? I seen that there, man. I seen everything, man....
And I ain't got no attorney, man. You (unintelligible)
big conspiracy, dog. I'm playing up against the State,
man. All them all against me, man. That's why I ain't
(unintelligible) gather facts on my behalf, man. Right, my
man, right, my man. I'm pro se. I'm
representing myself, man. I got stand-by counsel and an
investigator, but I'm pro se right now.
...
[Y]ou don't really know too much about the law like that,
bro. Man, (unintelligible) I know enough about the law, man.
(Unintelligible) I know these people playing games with me,
man. They won't give me no good attorney who really
(unintelligible) go out there today. You got to get you [ ] a
lawyer. Hey, man, I'm going to get back at you, man. All
right, blood. Hey, I love you (unintelligible)....
During
the recorded telephone call, Lanier spoke with Glenn about
Glenn's former attorney, who withdrew because of a
conflict but kept the fee that Glenn paid, and about Mark
Moore, the cousin of Martin Moore, who planned to testify on
behalf of Glenn at trial. Lanier told Glenn, “I already
talked to Mark. He laced me up.” Lanier asked Glenn to
“put [him] on the viso,” which meant the
visitation list at the jail. Also, Lanier advised Glenn,
“You need to talk to your lawyer,” and told him,
“Get your lawyer to subpoena me.”
During
the murder trial, Glenn represented himself, and Lanier
testified on behalf of the defense. Lanier testified that he
prepared meat for the barbecue but denied attending the
barbecue and denied knowing if Glenn remained at the barbecue
when the homicide occurred. On cross-examination, Lanier
further denied that he spoke with Glenn on the telephone
about Glenn's criminal case (Respondent's Exhibit 1b
at 225-29):
[Prosecutor:] Have you ever talked to Mr. Glenn about his
case?
[Lanier:] Not really.
[Prosecutor:] You never talked to - you never talked to him
on the phone about his case?
[Lanier:] No, not really. I went to see him one time. When
you locked up like that you try and keep your case in there,
man. What's going on in the outside world, it really is
irrelevant.
[Prosecutor:] Mr. Lanier, have you ever talked to Mr. Glenn?
[Lanier:] I just told you.
...
[Prosecutor:] It is simply a yes or no question. Have you
ever talked to Michael Glenn on the phone about his case?
[Lanier:] No.
...
[Prosecutor:] You said no, correct?
[Lanier:] Have I ever talked to him about his case? No.
[Prosecutor:] Have you ever talked to Mr. Glenn on the phone?
[Lanier:] What do you mean, like a phone call conversation?
[Prosecutor:] Yes.
[Lanier:] Yeah.
[Prosecutor:] How many times when he was in jail?
[Lanier:] Maybe like once or twice. I just got out of prison.
I've been gone myself.
[Prosecutor:] What did you talk about on the phone?
[Lanier:] Good to see you. Glad I'm home, man.
...
[Prosecutor:] Did Mr. Glenn ever talk to you on the phone and
get mad at you because you wouldn't verify that he was at
the barbecue?
[Glenn:] Plead the Fifth.
[Lanier:] Plead the Fifth.
[Prosecutor:] Excuse me? You mean you're pleading the
Fifth Amendment?
[Lanier:] Yeah, I'm pleading the Fifth, tada, tada, tada
(stutter).
[Prosecutor:] Isn't it a fact Mr. Glenn wanted you to say
you were at the barbecue and that you saw him there?
[Lanier:] I plead the Fifth.
After
Lanier denied that he had spoken with Glenn about Glenn's
criminal case, the prosecutor introduced into evidence the
recorded telephone call to impeach Lanier. (Respondent's
Exhibit 1b at 250-51)
An
information charged Lanier with perjury for his testimony
during Glenn's trial. Lanier exercised his right to a
jury trial. At the perjury trial, Lanier testified in his own
defense. Lanier testified that during Glenn's trial he
felt frustrated and nervous. Lanier claimed that he did not
believe that he had discussed Glenn's criminal case with
Glenn because Glenn mostly spoke during the telephone call.
Lanier claimed that he truthfully responded, “not
really,” when the prosecutor asked him if he had spoken
with Glenn about Glenn's case. During the telephone call,
Lanier wanted Glenn to know that he supported Glenn. Lanier
further claimed that
his testimony during Glenn's trial was not material
because his testimony did not support an alibi. Lanier
contended that he asserted his right against
selfincrimination under the Fifth Amendment because he did
not understand the prosecutor's questions.
