People v. Armentero
| Decision Date | 04 April 1986 |
| Docket Number | Docket No. 78594 |
| Citation | 384 N.W.2d 98,148 Mich.App. 120 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Emilio Pita ARMENTERO, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Deputy Chief, Civil and Appeals, and Andrea L. Solak, Principal Atty., Appeals, for people.
State Appellate Defender by R. Steven Whalen, for defendant-appellant on appeal.
Before BEASLEY, P.J., and J.H. GILLIS and KELLY, JJ.
In February, 1984, defendant, Emilio Pita Armentero, was convicted by a jury of murder in the second degree, in violation of M.C.L. Sec. 750.317; M.S.A. Sec. 28.549. After being sentenced to serve not less than 75 nor more than 150 years in prison, he appeals as of right.
This was defendant's second trial for the murder of Sorrento Bonner-Gabek on July 15, 1981. Bonner-Gabek was discovered in the vicinity of his upper flat on West Grand Boulevard in Detroit, stabbed 23 times with two different knives. Bonner-Gabek had been thrown from the window of his flat after being stabbed.
In the first trial, defendant was tried for murder in the first degree and convicted by a jury of murder in the second degree. On appeal, a panel of this Court remanded the case to the trial court for an evidentiary hearing to determine whether defendant had been rendered ineffective assistance of counsel at the first trial when his attorney failed to assert his statutory marital privilege at the preliminary examination, thus waiving it for purposes of trial. Docket No. 65638, Order of July 8, 1983 (unreported). On remand, the trial court found that the failure to assert the material privilege was ineffective assistance of counsel of a level requiring a new trial.
As indicated, on re-trial, a second jury convicted defendant of second-degree murder. In a separate nonjury trial, the codefendant, Fidel Fernandez Barrios, was convicted of murder in the first degree, and his conviction was affirmed by a panel of this Court on March 23, 1984 (Docket No. 65698, unreported).
At the second trial, the prosecutor sought to introduce defendant's testimony from the first trial. Defendant objected on the ground that the only reason he had testified in the first trial was to rebut the improperly admitted testimony of his wife. Defendant did not testify at the second trial. The court responded to defendant's objection by excising those portions of his earlier testimony that directly responded to the testimony of his wife, Guadalupe Armentero. The edited testimony was admitted at the second trial and was, for the most part, consistent with defendant's prior statement to the police, which was properly admitted.
Generally, a defendant's testimony from a prior trial may be admitted at a subsequent trial on the theory that once defendant has voluntarily waived his or her privilege against self-incrimination that waiver cannot be revoked in future proceedings in the same case. 1 An exception to this rule occurs where defendant's testimony at the earlier proceeding was prompted or impelled by the admission of illegal evidence. 2 On appeal, defendant claims that his testimony from the first trial should have been excluded at the second trial on the basis of this exception, since that testimony was prompted or impelled only by the improper admission of his wife's testimony as part of the prosecution's case in chief.
However, we find that the application of the holding in Harrison v. United States 3 to defendant's situation in the within case is inappropriate. Under the facts of this case, defendant's Fifth Amendment privilege against self-incrimination was not infringed upon by the admission of his testimony from the first trial.
Initially, we note that defendant may have given up his constitutional right to refrain from testifying because his wife's testimony was damaging to his defense. We also note that defendant's testimony from the first trial was similar, but not merely cumulative, to the admissible prior statement he had given the police concerning the killing. But, we do not agree that admission in the second trial of testimony defendant gave in the first trial violated his constitutional right to remain silent under the Harrison analysis.
To arrive at this conclusion, we distinguish the type of evidence in Harrison from the type of evidence here, which, as indicated, tended to impel the defendant's testimony in the first trial. The Harrison Court relied on the general evidentiary rule that a defendant's testimony at a former trial is admissible in evidence against him in later proceedings. The Court then went on to carve out a narrow exception for testimony impelled from the introduction of "illegal" evidence, stating:
"Here, however, the petitioner testified only after the Government had illegally introduced into evidence three confessions, all wrongfully obtained, and the same principle that prohibits the use of confessions so procured also prohibits the use of any testimony impelled thereby--the fruit of the poisonous tree, to invoke a time-worn metaphor." (Footnote omitted.) 4
The key to applying Harrison to situations beyond the illegal confessions evidence category lies in defining what the Court meant by "illegal" evidence which impelled the defendant's testimony. The wrongful confession evidence which impelled the defendant's first trial testimony in Harrison was constitutionally illegal under the Fifth Amendment. This type of "illegal" evidence is barred for two general reasons. First, it is barred in order to preserve the basic human dignity value found in the constitutional prohibition against compelled self-incrimination. Second, such evidence is barred in order to assure the reliability of evidence upon which a criminal conviction is based. Wrongfully obtained confessions have not proved to be reliable evidence. Thus, such evidence infringes upon a defendant's right to a fair trial and is considered "illegal".
The application of the Harrison exception to the general rule of allowing into evidence a defendant's prior testimony depends upon the existence of evidence which is illegal in one of the two ways described above. The evidence impelling the defendant's prior testimony must infringe upon a basic constitutional value (such as the Fifth Amendment right to be free from being compelled to incriminate oneself), or it must threaten the credibility of the verdict, because of the unreliability of the evidence (such as unlawfully obtained confessions), thus infringing upon the defendant's constitutional right to a fair trial.
By defining "illegal" evidence in this way, the application of the Harrison exception is not restricted to situations where police misconduct has produced the evidence that impels defendant's prior testimony. Such a narrow limitation of Harrison to the traditional "fruits of the poisonous tree" doctrine is not warranted and is unnecessary for a decision in this case. Harrison is only limited to situations where the evidence impelling a defendant's prior testimony is illegal in the sense that it infringes upon basic constitutional values or, to put it another way, upon a defendant's right to a fair trial. Only when evidence is "illegal" in this sense is a defendant's Fifth Amendment right to remain silent infringed upon when he is impelled to testify in response to the admission of the evidence. Evidence which impels a defendant to testify, even though technically inadmissible due to general policies of state statutory or common law, is "legal" evidence for the Harrison exception if it does not infringe upon basic constitutional values or present a situation where the result is likely to rest upon inherently unreliable evidence.
The evidence that impelled the within defendant to testify was "legal" evidence for purposes of applying Harrison. The testimony of defendant's wife at the first trial was inadmissible on two grounds. First, the admission of this evidence violated defendant's statutory spousal privilege. 5 Second, the failure of defendant's counsel to assert the spousal privilege constituted ineffective assistance of counsel under this state's two-prong test set forth in People v. Garcia. 6 Neither of these flaws render the testimony of defendant's wife "illegal" evidence for purposes of the Harrison exception.
This Court extensively traced the history of, and policy behind, the statutory spousal privilege in People v. Wadkins. 7 There, the Court noted that the only modern justification for the spousal privilege is preservation of marital harmony. The Wadkins Court also found that this underlying justification has led federal courts to vest the spousal privilege only in the testifying spouse. The United States Supreme Court recently held that under federal decisions, if the testifying spouse was willing to testify (as in this case), then there was no marital harmony to preserve by allowing the defendant spouse to invoke the privilege. 8 Thus, under the common law spousal privilege followed in the federal courts, defendant herein could not have asserted the spousal privilege and barred his wife's testimony; only she could have invoked the privilege with respect to her testimony.
However, the Wadkins Court also noted that the language of the Michigan statutory spousal privilege does not allow for adoption of the federal rule. But, the Wadkins Court went on to conclude that the spousal privilege in Michigan is narrow in its justification and ought to be correspondingly narrowly construed in its scope. 9
This narrowing of the justification for the statutory spousal privilege was reinforced by this Court's decision in People v. Love, 10 where the Court clearly stated that the Michigan statutory spousal privilege did not have a constitutional foundation. This leads...
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Brown v. State, 617
...because it violated a constitutional provision, a statute, a case, or a court rule." We disagree. In Michigan v. Armentero, 148 Mich. App. 120, 384 N.W.2d 98 (1986), the defendant was charged with murder. Id. at 100. At his first trial, testimony by the defendant's spouse was introduced, wh......
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People v. Hamacher, Docket No. 81202
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