People v. Dietrich

Decision Date27 November 1978
Docket NumberDocket Nos. 19792,23417
Citation274 N.W.2d 472,87 Mich.App. 116
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence Eugene DIETRICH, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry Louis COLE, a/k/a Terry Letts, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

George S. Buth, Grand Rapids, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., David H. Sawyer, Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and V. J. BRENNAN and CAMPBELL, * JJ.

DANHOF, Chief Judge.

These two felony-murder cases arose out of an armed robbery. On October 18, 1972, defendants allegedly robbed a pharmacy and during the perpetration of that robbery shot and killed the pharmacist, Dr. Werra. On October 4, 1973, after a jury trial, defendant Dietrich was found guilty of first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548. Defendant Cole's trial was not held until November 18, 1974, because of difficulties in locating him and securing his presence at trial. He was also found guilty by a jury of first-degree murder. Both defendants were sentenced to life imprisonment and appeal as of right. The evidence introduced at each of the defendants' trials, if believed by the jury, clearly established each defendant's guilt beyond a reasonable doubt. The evidence indicated that on the night in question, the defendants were riding around in an automobile with two other friends when they asked to be let out. After letting the defendants out of the car, the friends drove around the block. At approximately 8:40 p. m., two persons entered the Butterworth Pharmacy. The only other people in the store at that time were the pharmacist and a stock boy, Thomas Howland, who was stocking shelves. Howland heard the front door open and someone talking to the pharmacist. He heard two loud noises which he presumed were firecrackers, so he stopped stocking the shelves and went to see what had happened. He then saw one man run past him out the door and another man, wearing a ski mask, standing near the cash register. The man with the mask told Howland to stay where he was because they had a gun. He then took some money from the cash register and ran out the door. Defendants returned to the car and Cole said, "Get out of here. I shot someone". The four people then returned to an address on Wavell where they had been staying with Susan Ellis.

Early the next morning, defendants had a conversation with Ms. Ellis in which defendant Cole explicitly admitted his participation in the robbery and defendant Dietrich implicated himself in the robbery by correcting some of Cole's misstatements concerning the events that took place during the robbery. Later that day, these individuals left in an automobile for Kentucky. On the way, Dietrich, who was riding in the back seat, tossed an article of clothing to Cole, who was in the front seat. It was of black and blue woolen material. Dietrich said he could not be identified since he was wearing a ski mask. Cole then threw the article out of the car.

These cases were consolidated on appeal because they raised one common issue and were both remanded back to the trial court for an evidentiary hearing on this issue. However, except for this one common issue, these cases raise different issues. For this reason and because defendants were tried separately, this opinion will discuss the issues raised by each defendant separately.

THE DIETRICH TRIAL

After trial, defendant's attorney learned that some of the prosecution's witnesses received monetary rewards from various organizations, such as Silent Observer and the Kent County Pharmaceutical Association (KCPA), in connection with this case. Defendant contends that the prosecutor knew or should have known of these rewards or at least of the possibility of them, because of the cooperation between the prosecutor, the police, and these organizations. The prosecutor did not disclose any information relating to these rewards either to the defendant before trial or to the jury at trial. Defendant claims that the failure to disclose this material information pertaining to the credibility of these witnesses requires reversal, see United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); People v. Atkins, 397 Mich. 163, 243 N.W.2d 292 (1976); People v. Mata, (On Remand), 80 Mich.App. 204, 263 [87 Mich.App. 126] N.W.2d 332 (1977); People v. Nettles, 41 Mich.App. 215, 199 N.W.2d 845 (1972).

As mentioned before, on appeal this case was remanded for an evidentiary hearing on this issue. At that hearing, a witness connected with the Silent Observer Program testified that he did not contact any of the witnesses in defendant's trial either before or during trial. He testified that a reward was paid to Roger Mollema but that he was not contacted about it until November 16, 1973. Another witness testified that she received an award from a veteran's club in which the victim was a member but that she was not contacted about this until after trial. Also, she testified that prior to trial she had no expectation of receiving a reward. A police detective testified that he was aware that rewards were paid by the KCPA on March 6, 1974, but that he did not become aware of these rewards until after trial. A newspaper article, dated October 20, 1972, was introduced into evidence and it stated that a $500 reward was being offered by the KCPA for information leading to the arrest of the defendants. After the hearing, the trial judge denied defendant's motion for a new trial since he found that none of the witnesses were offered rewards until after trial. This finding will not be set aside unless it is clearly erroneous, GCR 1963, 517.1.

Defendant's argument is premised on the basis that the prosecutor has the duty to protect the interests of all citizens and to seek justice, not just convictions, Hurd v. People, 25 Mich. 405 (1872); People v. Nettles, supra. The prosecutor is obligated to present the trier of fact not only with incriminating evidence against the defendant but also with any material evidence exculpating the defendant. This duty to disclose also extends to material impeaching information, Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).

The general standard for materiality in this context is set out in United States v. Agurs, supra, 427 U.S. at 112-113, 96 S.Ct. at 2401.

"The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt." (Footnotes omitted.)

Almost all the impeaching evidence cases cited by defendant involve a promise or expectation of leniency for an accomplice and/or addict informer, see People v. Atkins, supra, People v. Mata, supra, People v. Nettles, supra. Defendant argues that the only difference between these addict/accomplice-informer cases and this monetary reward case is the degree and kind of benefit conferred upon the witness in exchange for the testimony. Defendant claims that this difference does not justify the prosecutor's failure to disclose and that this information should have been presented to the trier of fact to be considered together with all the other evidence.

Although defendant's arguments are not unreasonable, there are other factual differences in this case which distinguish it from cases in which testimony was given in exchange for a promise of leniency. One important distinction in this case is that there was no evidence that any of the witnesses were promised rewards, expected to receive a reward or even knew of the possibility of a reward before they testified at defendant's trial. As the Supreme Court stated in People v. Atkins, supra, 397 Mich. at 174, 243 N.W.2d at 296, "The focus of required disclosure is not on factors which may motivate a prosecutor in dealing subsequently with a witness, but rather on facts which may motivate the witness in giving certain testimony".

The possibility of receiving a monetary reward would influence and motivate a witness to give false testimony only if the witness was aware of the possibility of a reward. In this case, there is no evidence that any of the witnesses were aware, before trial, of the possibility of a reward. Furthermore, this is not a case in which it would be atypical for a witness to not have an expectation of consideration for his cooperation, Cf. People v. Atkins, supra. These witnesses are not addict informers, accomplices or co-conspirators. In United States v. Washington, 550 F.2d 320 (CA 5, 1977), the Court even questioned whether this type of monetary reward offer was the type of "exculpatory evidence" contemplated by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

After a review of the record, we conclude that the trial judge's findings that the witnesses were not aware of the reward until after trial and did not testify with an expectation of consideration were not clearly erroneous. Since none of the witnesses knew of these rewards before testifying, the prosecutor was not under a duty to disclose this information concerning these future possibilities, see ...

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