People v. Atkins

Decision Date08 July 1976
Docket NumberNo. 2,2
Citation243 N.W.2d 292,397 Mich. 163
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence ATKINS, Defendant-Appellant. 397 Mich. 163, 243 N.W.2d 292
CourtMichigan Supreme Court

Donald A. Burge, Pros. Atty., Parchment by Stephen M. Wheeler, Chief of Appellate Division, Kalamazoo, for plaintiff-appellee.

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

FITZGERALD, Justice.

Defendant Clarence Atkins stands convicted by a jury of sale of heroin. 1 His conviction was affirmed by the Court of Appeals at 47 Mich.App. 558, 209 N.W.2d 735 (1973). We likewise affirm after having examined and answered the following questions in the negative:

(1) Whether reversal is required because the trial court did not Sua sponte instruct the jury that the testimony of an addict-informer was to be received with care and caution;

(2) Whether the uncorroborated testimony of an addict-informer is insufficient as a matter of law to make a jury-submissible issue on defendant's guilt; and

(3) Whether the jury was misled by a failure to disclose the possibility of future favorable treatment for the addict-informer testifying against defendant.

The indictment alleged that the unlawful sale took place on or about March 12, 1971, in the City of Kalamazoo. Testimony at trial indicated that in the afternoon of that date, one Edward Nero telephoned the Kalamazoo Police Department and informed a Detective Walker that Nero had arranged to purchase heroin from the defendant. Nero had been an informer for that department for some six months. Around 10 p.m., Detective Walker and a policewoman met Nero near the place of the arranged purchase. Walker, who had worked with Nero on previous occasions, performed a pat-down search of Nero's person and searched Nero's car by looking on the front and rear seats, under the seats and in the glove compartment. Walker gave Nero a twenty-dollar bill after recording the serial number. Nero then drove his car to the place where the purchase was to be made. Walker and the policewoman followed in their unmarked vehicle. They saw Nero disappear behind a house located at 216 W. Patterson Street. They saw him emerge from behind that house 10 minutes later, get back into his car, and drive to the original meeting place where he turned over to them two packets of what subsequently proved to be heroin.

Nero's testimony supplied the only evidence directly linking defendant with the sale. The fact of Nero's long history of heroin use, his criminal record, and his possible motives for fabrication were thoroughly explored by defense counsel. Defense counsel highlighted several contradictions in Nero's testimony. It was also revealed that there was a breaking and entering charge pending against Nero and that he was in jeopardy of probation revocation. By questioning a Kalamazoo County Sheriff's deputy, it was revealed that when Nero was arrested in late January 1971 on the breaking and entering charge, Nero proposed a deal whereby he would become an informer for the sheriff's department in return for dismissal of the charge. However, the deputy testified that no such agreement was made.

Defense counsel did not request any special jury instructions pertaining to Nero's credibility, and stated that he had no objections to the instructions that were given. The jury, having full knowledge of Nero's character, history, and possible expectations of reward, returned a verdict on August 12, 1971, of guilty as charged.

On November 29, 1971, the prosecutor petitioned for Nolle prosequi of the breaking and entering charges pending against Nero, on the grounds that he had returned the stolen property and had 'rendered great assistance in the area of the narcotics traffic within Kalamazoo County' including testimony which had 'resulted in pleas and convictions regarding narcotics violations'. The petition for order of Nolle prosequi was granted by the circuit court.

I

The trend of Federal criminal trial practice is now to require a special cautionary instruction regarding the testimony of government witnesses who are narcotics addicts and who are paid informers or who have criminal charges against them. 2 In Michigan, there is no similar tradition of judicial decision in the area of special instructions pertaining to the credibility of addict-informers. This may be due to the fact that state courts in general have retreated further than Federal courts from the common-law tradition of liberal judicial comment on the evidence in jury trials. 3

Michigan statute 4 and court rule 5 condition the requirement of an instruction on a request therefor. This requirement is binding where, as here, defendant predicates no error on the instructions actually given, but rather contends that the trial court on its own motion should have instructed in an area where no tradition of state judicial decision exists. While this Court would not be adverse to a cautionary instruction where the uncorroborated testimony of an addict-informer is the only evidence linking the accused with the alleged offense, there must be a proper request. Focusing special attention or particular suspicion on a witness or class of witnesses can be a risky business. Both sides should be given the opportunity to develop the record with respect to the fairness of such a proposed instruction.

In People v. McCoy, 392 Mich. 231, 236--238, 220 N.W.2d 456 (1974), this Court dealt with a related area of jury instructions regarding the credibility of accomplices. A majority of this Court therein held prospectively that it would be reversible error 'to fail upon request to give a cautionary instruction concerning accomplice testimony and, if the issue is closely drawn, it may be reversible error to fail to give such a cautionary instruction even in the absence of a request to charge.' 6 This holding does not require reversal in the instant case, nor are we of the opinion that in the interests of justice it should be so extended. First, the McCoy rule under discussion was given prospective application for the reason that it went beyond long-established Michigan precedent to the effect that special instructions regarding credibility was a matter within the sound discretion of the trial court. Second, there was no imbalance in the instructions given in the instant case. In McCoy, error was found in the trial court's failure to balance care and caution language actually used in the instruction on alibi with similar language relating to the accomplice who testified against the defendant. Third, the jury in the case at bar was fully apprised of the criminal past, and possible motivation of witness Nero. It would not be an unfair assessment of the record herein to say that as much testimony was elicited on the issue of Nero's credibility as on that of defendant's guilt or innocence. Defense strategy from the outset was to put witness Nero on trial. In the face of this clear strategy, we cannot assume that defense counsel lightly disregarded the possibility of requesting a cautionary instruction or that such an instruction would have been refused if requested. Under the circumstances, M.C.L.A. § 768.29; M.S.A. § 28.1052, and GCR 1963, 516.1 and 516.2 are controlling.

II

Defendant urges this Court to follow the Illinois rule 7 that the uncorroborated testimony of an addict-informer is insufficient as a matter of law to make a jury-submissible case, and that his motion to dismiss at the close of the people's proofs should have been granted. Most recently, this Court has stated that it 'has steadfastly supported the right of the trier of fact, particularly the jury, to believe or disbelieve, in whole or in part, any of the evidence presented.' 8 We hold that the credibility of an addict-informer, like that of an accomplice, 9 is a jury question, and that the jury may convict on such testimony alone.

III

Defendant has produced no facts of record, by way of a motion for new trial based on newly discovered evidence or otherwise, indicating that an agreement for Nero's testimony existed at the time of trial. Instead, he asserts that it would be incredibly naive to believe that there was neither an actual or incipient deal; that if there was no actual bargain at the time of trial, Nero and the prosecutor knew there would be one within a short period of time. The prosecutor maintains that there was no agreement at the time of defendant's trial, and that subsequent dismissal of the charge against Nero resulted from several factors, some of which had no relation to defendant's trial. Nero, says the prosecutor, returned the property stolen during the breaking and entering and, most importantly, 'blew his cover' by testifying at this trial and others so as to be of no further use in undercover work.

It would be atypical if an addict-informer did not have an expectation of consideration for his cooperation in a given case. The well of informer cooperation would soon run dry if law enforcement consistently adhered to a policy of no consideration. Furthermore, we would not be so paternalistic as to believe that jurors are not well aware of these facts of life.

Where an accomplice or co-conspirator has been granted immunity or other leniency to secure his testimony, it is incumbent upon the prosecutor and the trial judge, if the fact comes to the court's attention, to disclose such fact to the jury upon request of defense counsel. 10 The same requirement of disclosure should also be applicable if reasonable expectations, as opposed to promises, of leniency or other rewards for testifying resulted from contact with the prosecutor. It has been held to be a denial of due process for a prosecutor not to correct the testimony of such a witness against the defendant, where the witness testifies that he has been promised no consideration for his testimony and the prosecutor knows this statement to be false. 11 In regard to this duty to disclose, the...

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