People v. Cadle, Docket Nos. 122755

CourtCourt of Appeal of Michigan (US)
Citation204 Mich.App. 646,516 N.W.2d 520
Docket Number122757 and 123273,Docket Nos. 122755
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Henry Oran CADLE, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Basil AMO, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Raymond VALIN, Defendant-Appellant.
Decision Date19 April 1994

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Carl J. Marlinga, Pros. Atty., and Eric J. Kaiser, Asst. Pros. Atty., for the People.

State Appellate Defender by Susan J. Smith and Amy Neville, Detroit, for Henry O. Cadle.

Michael J. Brady, Southfield, for Richard B. Amo.

Martin J. Beres, Mount Clemens, for Raymond Valin.

Before HOOD, P.J., and MURPHY and FITZGERALD, JJ.

PER CURIAM.

Defendants were tried together below and have raised related arguments. Their appeals, therefore, have been consolidated.

Defendants were convicted by a single jury of conspiracy to possess more than 650 grams of cocaine with intent to deliver, M.C.L. § 750.157(a); M.S.A. § 28.354(1), M.C.L. § 333.7401(2)(a)(i); M.S.A. § 14.15(7401)(2)(a)(i). Defendant Amo was also convicted of delivery of more than 650 grams of cocaine, M.C.L. § 333.7401(2)(a)(i); M.S.A. § 14.15(7401)(2)(a)(i). Defendant Cadle was acquitted of this last charge. Defendant Valin was not charged with delivery. All three defendants received mandatory life sentences without possibility of parole, and they appeal as of right. We reverse and remand.

Defendants first argue that they were entitled to separate trials. We agree.

"The general rule is that a defendant does not have a right to a separate trial." People v. Hurst, 396 Mich. 1, 6, 238 N.W.2d 6 (1976). However, "severance should be granted when the defenses of several defendants ... are antagonistic to each other." Id. Defenses are antagonistic where the defendants directly or by implication accuse each other and the trial, therefore, becomes " 'more of a contest between the defendants than between the people and the defendants' " and the defendants, thereby, are deprived of a fair trial. Id. at 7, 238 N.W.2d 6, quoting People v. Braune, 363 Ill. 551, 557, 2 N.E.2d 839 (1936). On the other hand, we will not reverse for failure to sever where defendants fail to make an affirmative showing of prejudice and the defenses, although perhaps different, are not inconsistent and do not pit the defendants against each other. People v. Carroll, 396 Mich. 408, 414, 240 N.W.2d 722 (1976).

In this case, two coconspirators--the daughters of defendant Amo--testified for the prosecution in accordance with the terms of their plea bargains. They testified that their father asked them to help transport cocaine from Florida to Michigan with defendant Valin. The cocaine was to be delivered to defendant Cadle and another person, who may have been a police informant.

Large amounts of cocaine were found in the trunk of the car Amo was driving and hidden throughout Cadle's home. The charges in this case stem only from the cocaine found in the trunk of the car. The cocaine found in Cadle's home was the subject of a separate prosecution. No charges were filed regarding small amounts of cocaine found in Cadle's car and Amo's hotel room.

At trial, Cadle's strategy was to show that he knew nothing of the cocaine found in the car Amo was driving. He claimed that Valin and one of the women had given him a suitcase for safekeeping in his home and that it had turned out to be full of cocaine. He claimed that he was being used by the other defendants to hide the drugs.

Valin argued that he had been set up by the other two. He claimed he did not know the contents of the packages found in the car Amo was driving. He denied taking a suitcase to Cadle for safekeeping and noted that surveillance teams did not see him at Cadle's residence and further that, although cocaine was found there, the alleged suitcase described by Cadle was never found.

Amo claimed that he was also unaware of the contents of the packages found in the car he was driving and that the packages belonged to the owner of the car, who was not a defendant. He disavowed any knowledge of drug activities by the others, including his daughters, and claimed no knowledge of the drugs found at Cadle's home.

As seen above, each defendant had to fend off attacks from the others in addition to those of the prosecution. As in Hurst, the people often sat back and let the defendants accuse and incriminate each other. Their defenses were clearly antagonistic, and the trial court abused its discretion in denying their repeated motions for severance. After carefully reviewing the record, we cannot say that this error was harmless beyond a reasonable doubt.

Next, defendants argue that the prosecutor's failure to produce the alleged informant was a violation of due process. We agree.

Generally, the people are not required to disclose the identity of confidential informants. People v. Sammons, 191 Mich.App. 351, 368, 478 N.W.2d 901 (1991). However, " '[w]here the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.' " Id., quoting Rovario v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 628, 1 L.Ed.2d 639 (1957). Similarly, where the informant was a participant in the underlying transaction rather than a mere supplier of information, he is a res gestae witness, and the privilege does not apply. Sammons, supra at 368, 478 N.W.2d 901. In such cases, the action may be dismissed for failure to produce identifying information. Id. The prosecution must use due diligence, that is, use all reasonable means, in helping defendants identify and locate res gestae witnesses. People v. DeMeyers, 83 Mich.App. 286, 291-293, 454 N.W.2d 202 (1990).

Here, the evidence showed that the alleged informant was a part of Amo's drug conspiracy and may have participated in this crime. There was evidence that the prosecutor had met with the informant and spoken to him on the phone, but made little or no effort to produce him or serve him.

We find that the trial court clearly erred in ruling that the informant was not a res gestae witness and that his identity need not be disclosed. The trial court also clearly erred in finding that the prosecution had rendered defendants reasonable assistance in serving and locating the informant. The court further erred in forbidding defendants from mentioning the alleged informant's name at trial. In our opinion, these errors are independent grounds for reversal, because they impinged on defendants' rights of confrontation and to a fair trial. Were we not reversing on other grounds, we would remand to allow the prosecutor to rebut the presumption that these errors prejudiced defendants. See id. at 293-294, 454 N.W.2d 202.

We briefly address the remaining issues to provide guidance in case of a retrial.

Valin and Amo argue that they were deprived of any meaningful voir dire because the trial court conducted the questioning personally. We disagree.

A trial court may not restrict voir dire in a manner that prevents development of a factual basis for the exercise of peremptory challenges. People v. Taylor, 195 Mich.App. 57, 59, 489 N.W.2d 99 (1992); see also People v. Tyburski, 196 Mich.App. 576, 585-587, 494 N.W.2d 20 (1992). Thus,

[i]f a trial court is going to take the unusual procedure of conducting voir dire, as opposed to allowing the attorneys for the parties to participate, we believe that it then had the responsibility to ask probing questions and, if necessary, to consider relevant questions posed by the attorneys. [Id. at 589, 494 N.W.2d 20.]

The court, although it asked counsel to submit written questions, conducted voir dire en masse and did not allow counsel to ask follow-up questions. However, we find that the manner in which the questioning was conducted was not so perfunctory as to constitute independent grounds for reversal. However, we caution that the method used must be undertaken with great care and that the use of this method may lead to reversal in appropriate cases.

Amo and Cadle next argue that the trial court erred in admitting evidence concerning how the police gained knowledge of the conspiracy. We agree that, because the state of mind of the police was not a fact of consequence at trial, it was error to allow officers to testify concerning background investigations and information received from an informant that led them to monitor motel registrations for defendants' names. People v. Wilkins, 408 Mich. 69, 73, 288 N.W.2d 583 (1980). This is so even if the statements were not admitted for their truth and, therefore, were not hearsay. Id. The prejudice arising from admitting an informant's unsworn statements to the jury through the police far outweighs any conceivable probative value, especially when the informant was not produced at trial. Id. at 74, 288 N.W.2d 583. Were we not reversing on other grounds, we would find that, in light of the evidence on the whole record, this error would not have provided independent grounds for reversal. 1 See MRE 103(a).

Amo and Cadle argue that the trial court committed error requiring reversal in admitting a statement allegedly made by Valin after his arrest to the effect that the other defendants would kill his children if he cooperated with the police. We disagree.

The statement was made after the end of the conspiracy and did not tend to further the conspiracy. See MRE 801(d)(2)(E). Therefore, it was inadmissible hearsay relative to Amo and Cadle. See People v. Trilck, 374 Mich. 118, 124, 128, 132 N.W.2d 134 (1965) (postarrest statements to the police do not further the conspiracy and are hearsay with respect to...

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