People v. Allen

• Decision Date: 09 September 1981
• Docket Number: Docket No. 78-1990
• Citation: 311 N.W.2d 734,109 Mich.App. 147
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clinton Dale ALLEN, Defendant-Appellant. 109 Mich.App. 147, 311 N.W.2d 734
• Court: Court of Appeal of Michigan — District of US

Page 734

311 N.W.2d 734

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clinton Dale ALLEN, Defendant-Appellant.

Docket No. 78-1990.

109 Mich.App. 147, 311 N.W.2d 734

Court of Appeals of Michigan.

Sept. 9, 1981.

Released for Publication Nov. 4, 1981.

[109 MICHAPP 149] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., Appeals, and Maura D. Corrigan, Asst. Pros. Atty., for the people.

Nora J. Pasman, Asst. State Appellate Defender, Detroit, for defendant-appellant on appeal.

Before RILEY, P. J., and BASHARA and MacKENZIE, JJ.

RILEY, Presiding Judge.

Defendant, charged with first-degree murder, M.C.L. 750.316; M.S.A. 28.548, and convicted by a jury of second-degree murder, M.C.L. 750.317; M.S.A. 28.549, was sentenced to life in prison. He appeals as of right, alleging more than a dozen errors which, he asserts, require reversal and discharge.

Prior to turning to the issues raised on appeal, it is necessary that we recite some of the more salient facts, since several of defendant's allegations of error are intricately intertwined with the [109 MICHAPP 150] unique circumstances under which defendant was brought to trial.

In the early morning hours of September 21, 1976, the victim was taken in her car to the Detroit apartment of Truman Taylor. Taylor, Charles and Ronald Burgess, defendant, his girlfriend and his brother, Gary Allen, were present. Several of those present engaged in what was apparently forced sexual intercourse with the victim and, in addition, performed other deviant acts upon her such as spraying insecticide on her genital area and forcing a broomstick into her rectum.

Although the testimony is conflicting, someone came up with the idea that the victim should be killed. To that end, all left Taylor's apartment in the victim's car. Defendant's girlfriend was dropped off at defendant's house but the others drove to Belle Isle where, in a wooded area of the island, the victim was forced from her car and repeatedly stabbed. She was found later that morning, remarkably, still alive, but died on arrival at the hospital at approximately 10:45 a. m. According to the medical examiner who performed the autopsy, the victim had been stabbed some 21 times.

All participants, except defendant and his girlfriend, were arrested later that day. Defendant's brother, Gary, made a statement and was released. Complaints were issued, however, against Taylor and both of the Burgess brothers. Defendant, who was approximately 161/2 years old at the time of the offense, was arrested on September 30, 1976, by the Indiana authorities where he was living with his girlfriend at the home of his aunt and uncle. Defendant was held in Indiana as a "material witness" against the Burgess brothers and Taylor. As defendant was considered only a "witness" and not a "suspect" at that time, he was not [109 MICHAPP 151] given Miranda ¹ warnings, a lawyer, immunity, or any of the constitutional and statutory safeguards afforded juveniles.

After having been detained in Indiana for three days, defendant was interrogated by Detroit homicide detectives to whom defendant gave an inculpatory statement. Defendant and his girlfriend were then returned to Detroit where defendant was held at the Wayne County Youth Home. The day after his return, defendant testified at Ronald Burgess's preliminary examination as the prosecution's sole witness. Apparently, defendant was not advised by the judge that anything he might say could be used against him in a prosecution charging him with complicity in the murder.

At the examination, the defendant testified to the aberrant activities that took place in Taylor's apartment and their departure to Belle Isle. Defendant's testimony charged Ronald Burgess with the initial sexual attack on the victim and charged the Burgess brothers as the principal culprits who tortured the victim. According to defendant, it was Ronald who had decided that the group should go to Belle Isle to kill the girl and it was Ronald who repeatedly stabbed the victim. Finally, defendant testified that Ronald threatened to kill him if he, defendant, did not stab the victim too. So, he stated, he pretended to do so.

At the close of the examination, the Burgess brothers were bound over on charges of first-degree murder. Truman Taylor was never charged.

In the ensuing seven months there was no apparent change in the posture of the case. On April 18, 1977, however, the day scheduled for the Burgesses' trial, a bargain was struck. The Burgess [109 MICHAPP 152] brothers agreed to testify against defendant and his brother Gary in exchange for a plea by Ronald to second-degree murder with, inter alia, a 10 to 15 year sentence bargain. In addition, Charles Burgess was given complete transactional immunity for his testimony. Warrants for the arrest of defendant and his brother were obtained that day since, at the plea hearing, Ronald charged the defendant and his brother Gary with doing the same acts which defendant had previously testified that Ronald and Charles had performed. Defendant was immediately arrested and held in the Wayne County Youth Home.

The first several issues raised on appeal ask us to consider, essentially, whether the proceedings upon which this conviction is based are judicially sound and consistent with our sense of fair play. To that end we have thoroughly reviewed the record and are left with the firm conviction that error committed early in the proceedings, prior to the time of defendant's trial, resulted in substantial prejudice to the defendant and mandates a new trial.

Defendant's first allegation of reversible error is that the prosecution abused its discretion by charging the defendant with first-degree murder following the plea agreement struck with the Burgess brothers. The argument is essentially as follows. At the outset of the investigation, that is by October 4, 1976, the prosecutor deemed defendant sufficiently credible so as to use defendant as the sole witness against Taylor and the Burgess brothers. Therefore, the defendant postulates, the prosecutor abused his discretion when, seven months later, he chose to believe the testimony of the Burgesses, who formed the sole basis of the prosecution against defendant.

[109 MICHAPP 153] There can be no doubt that a prosecutor has broad discretion in exercising his charging function. People v. Evans, 94 Mich.App. 4, 6-7, 287 N.W.2d 608 (1979). As noted in Evans, however, this discretion is not without limits. It is well-settled law that a prosecutor is prohibited from exercising his discretion in such a manner as to violate constitutional principles. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).

In the instant case, the prosecutor contends that his office acted beyond reproach and that defendant was not charged initially because there was insufficient evidence to arrest him. In so arguing, however, the prosecutor has failed to substantiate this claim and has been equivocal as to what information his office possessed concerning defendant's involvement in the crime at the time it was decided to label him as a res gestae witness. To the contrary, a review of the record suggests that the prosecutor had ample information to charge all the people present at the apartment where the victim was first sexually assaulted and at Belle Isle where she was stabbed.

Given the broad, discretionary charging authority of the prosecutor, we are not prepared to hold that the prosecutor abused his discretion in charging the defendant. Beyond the fact that a prosecutor may not knowingly use false testimony, Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), Code of Professional Conduct and Canons, DR 7-103(A), we believe that the credibility of Ronald Burgess is not the responsibility of the prosecution but is more appropriately left to a jury of twelve persons.

Despite what we have said to this point, we are of the opinion that the prosecutor's original decision to characterize defendant as a material witness,[109 MICHAPP 154] only to turn around and charge him as a principal in the crime seven months later, raises serious doubts as to his motives and bears close scrutiny because, wittingly or unwittingly, this decision had a profound effect on the fairness of defendant's trial.

Our concern in this case arises from the following facts. Despite the fact that the prosecutor appeared to have sufficient evidence with which to charge the defendant, he instead characterized defendant as a material witness. Accordingly, defendant was given no lawyer, no Miranda warnings, nor any of the constitutional and statutory safeguards afforded juveniles. In addition, a statement was taken from defendant despite the fact that it contained admissions which could form a link in the chain of evidence tending to incriminate him. Finally, defendant made incriminating statements at the Burgesses' preliminary examination without being advised of his rights against self-incrimination.

The question then becomes: has there been an abuse of the prosecutor's discretion to charge which has disturbed the delicate balance between protecting the interests of society and the rights of the accused? Further, if that balance has been disturbed, can it be restored for purposes of retrial or must we find that there is no way to restore that balance and, thereby, release this defendant?

Our considered review of the record persuades us that reversal on the ground of prosecutorial abuse of discretion is not mandated here. Essentially, the prejudice claimed by the defendant is two-fold: (1) the loss of the protection of juvenile court jurisdiction and (2) the procurement of defendant's incriminating statement and testimony while he was in custody and not represented by counsel or given Miranda warnings.

[109 MICHAPP 155] As to the first claim of...