People v. Callington

• Decision Date: 06 May 1983
• Docket Number: Docket No. 55602
• Citation: 333 N.W.2d 260,123 Mich.App. 301
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward E. CALLINGTON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 260

333 N.W.2d 260

123 Mich.App. 301

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward E. CALLINGTON, Defendant-Appellant.

Docket No. 55602.

Court of Appeals of Michigan.

Submitted May 6, 1982.

Decided Feb. 23, 1983.

Released for Publication May 6, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., James J. Gregart, Pros. Atty., and Michael H. Dzialowski, Asst. Pros. Atty., for the People.

Wickett, Bartl, Haslett, Baugh & Laudenslager, P.C. by Mary E. Delehanty, Kalamazoo, for defendant-appellant.

Before WALSH, P.J., and WAHLS and McDONALD ^*, JJ.

McDONALD, Judge.

Defendant was convicted after a bench trial on September 4, 1980, of two counts of armed robbery, M.C.L. Sec. 750.529, M.S.A. Sec. 28.797, and was sentenced to concurrent terms of 10 to 20 years, with 254 days credit. In February 1981, application for delayed appeal was granted.

Defendant first contends that he was deprived of his right to compulsory process when his only corroborating witness pled the Fifth Amendment after the prosecutor, in the witness's presence, asked the trial court to inform the witness of his rights under the Fifth Amendment. We agree.

The defense called to the stand a witness named Anthony Brown. After the witness was sworn and gave his name for the record, the prosecutor interrupted and addressed the Court as follows:

"I would ask the Court to advise Mr. Brown, of his Fifth Amendment rights. It's our understanding that by testifying, he would be admitting to a probation violation which will subject him to prison."

Following the above-quoted prosecutor's request the defense counsel questioned the witness and elicited the contents of a previous discussion between the witness, his probation officer and defense counsel wherein the witness was told by his probation officer that his probation would not be violated as a result of his expected testimony in Court on behalf of the defendant.

Subsequent to the above-quoted examination by defense counsel the prosecutor again addressed the Court as follows:

"Your Honor, Counsel knows and the Court knows Carn Cunningham [the witness's probation officer] does not bind the Prosecuting Attorney. We are not bound by any agreement that she might have with this witness. We do intend to prosecute should he admit criminal involvement and I would request the Court to give this witness his Fifth Amendment rights."

Following the above-quoted second request by the prosecutor, the Court began to advise the witness of his rights under the Fifth Amendment. The Court's discussion with the witness was very lengthy, over fourteen pages of trial transcript, with interruptions by both defense counsel and the prosecutor. During this discussion the Court took a brief recess and called the witness's probation officer in the presence of counsel for clarification of the aforesaid alleged promise to the witness that his probation would not be violated if he testified on behalf of the defendant. The trial judge returned to the Courtroom and advised the witness that he misunderstood his probation officer and that his probation could be violated if he testified to matters that incriminated him beyond the matters discussed with his probation officer. The witness indicated to the Court that he understood.

During the lengthy discussion between the Court and the witness, the prosecutor further informed the Court that the witness was on probation for the offense of assault with intent to rob while armed and that if the witness's probation was violated "he could go to prison for the rest of his life. I want that clear. That's what our records show."

Near the end of the aforesaid lengthy discussion, the prosecutor further informed the Court that he had spoken with the witness during a recess and offered the witness use immunity and explained to the witness that he would not use what the witness said against him but reserved the right to prosecute him if the prosecution could establish a corpus.

The witness indicated to the Court that he wished to exercise his rights under the Fifth Amendment and was excused by the Court.

The Prosecutor argues that the witness was never threatened by the prosecutor or the Court but was merely advised of the facts and possible consequences should the witness choose to testify.

Defendant argues that he has the right to call his witness without having the prosecutor intimidate him and that the trial judge supported, restated, repeated and expanded upon the prosecutor's threats and consequently compelled the witness to leave the stand.

The specific question before this Court is what action the prosecutor may take, under these circumstances, in fulfilling his duty as an officer of the Court without infringing on a defendant's Sixth Amendment right to compulsory process.

In discussing compulsory process the United States Supreme Court stated:

"The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law." Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967).

In every prosecutorial abuse question, the reviewing Court must examine the pertinent portion of the record and evaluate the alleged wrongful acts in context. A limited review of previous case law on prosecutorial or judicial abuse complaints reveals that such questions are usually decided on a case-by-case basis with each decision depending heavily on the peculiar facts before the Court.

Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972), reversed where the trial judge admonished the defendant's only witness on his own initiative; United States v. Mendez-Rodriguez, 450 F.2d 1 (CA 9, 1971), reversed where the prosecutor deported three defense witnesses before the defendant had an opportunity to interview them; People v. Pena, 383 Mich. 402, 175 N.W.2d 767 (1980), reversed where the prosecutor sent an official letter to each defense witness stating he would prosecute them for perjury if they testified for the defendant and perjured themselves; People v. Butler, 30 Mich.App. 561, 186 N.W.2d 786 (1971), reversed where...