People v. Atkins

• Court: Court of Appeal of Michigan
• Writing for the Court: PETERSON
• Citation: People v. Atkins, 209 N.W.2d 735, 47 Mich.App. 558 (Mich. App. 1973)
• Decision Date: 25 May 1973
• Docket Number: Docket No. 15674,No. 3,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence ATKINS, Defendant-Appellant

Page 735

209 N.W.2d 735

47 Mich.App. 558

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence ATKINS, Defendant-Appellant.

Docket No. 15674.

Court of Appeals of Michigan, Division No. 3.

May 25, 1973.

Released for Publication Aug. 14, 1973.

Thea Rossi Barron, Daudert & Barron, Kalamazoo, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Donald A. Burge, Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and T. M. BURNS and PETERSON, ^* JJ.

PETERSON, Judge.

Defendant was indicted by grand jury for sale of heroin, ¹ and appeals his jury conviction thereof. The sale charged was of two packets of heroin for $20.00 and was alleged to have been made at approximately 10:00 p.m. on March 12, 1971, at 216 W. Patterson Street in the City of Kalamazoo. The only other person allegedly present was the purchaser, one Edward Nero, who testified against defendant.

The only facts of consequence to this appeal involve Nero: (1) his was the only testimony to prove the offense; (2) he was a police informer who arranged the 'buy' with police knowledge and money; (3) he was a narcotics addict; ² (4) he had a criminal record, was on probation, and faced possible probation revocation and had a pending breaking and entering charge against him; and (5) he was never brought to a probation violation hearing and the breaking and entering charged was subsequently dropped in consideration of his having been an informer.

Defendant proposes to couple these facts with another fact, not the subject of trial proof, of which we are in effect asked to take judicial notice, namely that every drug addict is inherently a perjurer where his own self-interest is concerned. From this major premise, defendant proceeds to the syllogistic conclusion, ergo, that all testimony of an addict-police informer which incriminates another is presumptively so incredible that no man may be convicted thereon unless such testimony is corroborated, or, in the alternative, that the trial court has a duty to instruct the jury that such testimony is only to be received with extreme caution. Neither proposition was argued to the trial court by motion or request to instruct.

No Michigan authority is offered in support of either the major factual premise or the conclusions of law proposed to be drawn from its application to this case. The premise seems first to have found judicial currency in Fletcher v. United States, 81 U.S.App.D.C. 306, 307, 158 F.2d 321, 322 (1946), where the trial court refused a specific request for a cautionary instruction akin to those accepted in the District of Columbia regarding accomplices, informers or paid investigators. ³ The Court said:

'Granting that the credibility of the testimony of a paid informer is for the jury to decide, it nevertheless follows that where the entire case depends upon his testimony, the jury should be instructed to scrutinize it closely for the purpose of determining whether it is colored in such a way as to place guilt upon a defendant in furtherance of the witness's own interest. * * * And when to this is added the well recognized fact that a drug addict is inherently a perjurer where his own interests are concerned, it is manifest either that some corroboration of his testimony should be required, or at least it should be received with suspicion and acted upon with caution. The rule in this jurisdiction for a quarter of a century has been to require that a jury be warned in the case of evidence given by a detective engaged in the business of spying for hire. The duty is more compelling where, as here, there is not a jot or tittle of other evidence and the criminal record of the witness is shown.'

Other Federal circuits have followed Fletcher, ⁴ but only the Sixth Circuit, in United States v. Griffin, 382 F.2d 823 (C.A.6, 1967), has gone so far as to hold it error on such facts to fail to give such an instruction. Similarly, only one jurisdiction, Illinois, has gone the last step, to hold that the addict-informer's testimony is not sufficient to make out a prima facie case unless corroborated. ⁵

Michigan, however, has never shared the view basic to Fletcher and its progeny, that there is some testimony which is suspect as a matter of law. To the contrary, in People v. Wallin, 55 Mich. 497, 505, 22 N.W. 15, 19 (1885), the Court said:

'The force of a witness' testimony depends upon the credit the jury think it entitled to; and no court has a right to lay down for a jury rules whereby they shall determine the force of evidence, irrespective of the credence they actually give it in their minds.'

See also People v. Zesk, 309 Mich. 129, 14 N.W.2d 808 (1944), and People v. Maybee, 44 Mich.App. 268, 205 N.W.2d 244 (1973), that it is not error to refuse...