People v. Dyer

• Decision Date: 05 August 1986
• Docket Number: Docket No. 75924
• Citation: 425 Mich. 572,390 N.W.2d 645
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Albert DYER, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 645

390 N.W.2d 645

425 Mich. 572

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Albert DYER, Defendant-Appellee.

Docket No. 75924.

Supreme Court of Michigan.

Argued Dec. 18, 1985.

Decided Aug. 5, 1986.

John D. O'Hair, Pros. Atty., Wayne County, Timothy A. Baughman, Deputy Chief, Civil and Appeals, Brigid Vincent Marley, Asst. Pros. Atty., Detroit, for plaintiff-appellant.

George Stone, Southfield, for defendant-appellee.

CAVANAGH, Judge.

Defendant was convicted by a jury of carrying a concealed weapon in violation of M.C.L. Sec. 750.227; M.S.A. Sec. 28.424, and was sentenced to one year in the Detroit House of Corrections. The Court of Appeals reversed defendant's conviction and remanded the case to the trial court. ¹ This Court granted the prosecutor's application for leave to appeal. ²

The Court of Appeals summarized the facts as follows:

"At about 9:20 p.m. on December 7, 1982, two police officers approached defendant and two other men, Michael Johnson and Woodrow Taylor, who were standing close together on a sidewalk. The officers testified that they saw defendant drop a gun when they were about five feet from defendant. Defendant testified that Michael Johnson dropped the disputed gun when Johnson saw the officers approaching.

"The prosecution endorsed Johnson as a witness. During jury voir dire the trial court told the jury panel Johnson was a possible witness. After the prosecution presented its first witness, the trial court became concerned about Johnson's potential testimony. In a discussion on the record but without the jury present, the trial court asked counsel what Johnson might say on the stand. The assistant prosecutor said he had no idea. Defense counsel said he didn't know whether Johnson would admit the gun was his or whether Johnson might invoke the Fifth Amendment privilege to remain silent. The trial court appointed an attorney present in the courtroom to represent Johnson. Following a brief recess, Johnson's appointed counsel stated that, should Johnson be called as a witness, Johnson would invoke his Fifth Amendment right by refusing to answer questions regarding the CCW because answers to those questions might tend to incriminate him. Johnson also told the trial court that he would invoke the Fifth Amendment privilege if he was called as a witness. After receiving this information, the trial court held that neither the prosecutor nor the defendant could call Johnson as a witness, relying upon People v Giacalone, 399 Mich 642, 645; 250 NW2d 492 (1977). Defendant objected, stating that the trial court was applying the Giacalone rule in an overbroad manner." 140 Mich.App. 344-345, 364 N.W.2d 330.

The Court of Appeals agreed with defendant that the trial court erred by excluding Johnson as a witness. The Court of Appeals found that this Court's holding in Giacalone was limited to the prosecution despite the broad language of the opinion prohibiting either party from calling a witness who intends to invoke the Fifth Amendment privilege to remain silent.

"[W]e limit the Giacalone automatic exclusion rule to only those situations in which a prosecutor intends to call a witness knowing that the witness will invoke a testimonial privilege and, by doing so, will raise an inference prejudicial to the defendant." 140 Mich.App. 347, 364 N.W.2d 330.

The Court of Appeals distinguished Giacalone from the present case, finding that the assertion of the testimonial privilege by res gestae witness Johnson in the presence of the jury might have proven favorable to defendant.

"Had Johnson testified that he would not answer questions regarding the transaction at issue in this case on grounds that those answers might tend to incriminate him, the jury might have inferred that Johnson was covering up because he, not defendant, was the wrongdoer." 140 Mich.App. 346-347, 364 N.W.2d 330.

The Court of Appeals found Johnson's testimony relevant to defendant's defense that Johnson, not defendant, dropped the gun. MRE 401. While recognizing that Johnson's testimony would be prejudicial to the prosecution because it was not "substantial evidence" and allowed no cross-examination, the Court of Appeals found the testimony more probative than prejudicial and therefore admissible. MRE 402, 403.

The prosecutor argues that the Court of Appeals has erred in failing to apply the exclusionary rule of Giacalone to both the defense and the prosecution. We agree. Although the facts of Giacalone can be distinguished from the facts of the present case, the rule of law remains the same; a lawyer may not knowingly offer inadmissible evidence or call a witness knowing that he will claim a valid privilege not to testify.

In Giacalone, the defendant appealed his conviction, arguing that the prosecutor acted improperly in calling a codefendant to testify knowing that the codefendant would claim the privilege against self-incrimination and, in so doing, would raise an inference adverse to defendant in the minds of the jury. Giacalone's defense counsel had objected to the calling of this witness. Giacalone, supra, 399 Mich. pp. 643-644, 647, 250 N.W.2d 492. In reversing Giacalone's conviction, this Court cited the American Bar Association standards relating to unprofessional prosecutorial and defense conduct.

"A lawyer may not knowingly offer inadmissible evidence or call a witness knowing that he will claim a valid privilege not to testify. The American Bar Association standards relating to the prosecution and defense functions provide that it is unprofessional conduct for a prosecutor or a lawyer representing a defendant

"--'knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury to offer inadmissible evidence'; ⁴

⁴ ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function (Approved Draft, 1971), Sec. 5.6(b) (the prosecution function) and Sec. 7.5(b) (the defense function).

"--'to call a witness who he knows will claim a valid privilege not to testify, for the purpose of impressing upon the jury the fact of the claim of privilege.' ⁵

⁵ Id., Sec. 5.7(c) (the prosecution function) and Sec. 7.6(c) (the defense function)."

Giacalone, supra, 399 Mich. p. 645, 250 N.W.2d 492.

While the holding in Giacalone is based on evidentiary trial error, this Court recognized that a number of decisions finding error in these circumstances were based on a denial of defendant's Sixth Amendment right of confrontation, as a defendant cannot effectively cross-examine a witness who invokes his testimonial privilege. ³ This Court declined to reach the constitutional issue in Giacalone.

In the present case, Johnson was a res gestae witness. ⁴ Defense counsel had no objection to Johnson testifying. Johnson was not an accomplice or a codefendant. No charges had been brought against him. ⁵ If Johnson had testified that the gun was his or Woodrow Taylor's and if the jury had believed his testimony, defendant would have been acquitted of the charge against him. Defendant contends that calling Johnson to the stand in order to invoke his Fifth Amendment rights in the presence of the jury was necessary to corroborate defendant's alibi by raising an inference beneficial to his defense.

Johnson had a right under both the federal and state constitutions to exercise his privilege against self-incrimination. This privilege is held by the witness. However, the witness is not the sole judge of whether the testimony is or may be incriminating. The constitutional privilege against self-incrimination must not be asserted by a witness too soon, that is, where there is no reasonable basis for a witness to fear incrimination from questions which are merely preliminary. In re Schnitzer, 295 Mich. 736, 740; 295 N.W. 478 (1940). However, a trial court may compel a witness to answer a question only where the court can foresee, as a matter of law, that such testimony could not incriminate the witness. 5 Callaghan's Michigan Pleading & Practice (2d ed), Sec. 37.143, p 464.

Defendant claims that Johnson should have been called to the stand and compelled to answer questions which were not incriminating. We find that the trial court properly appointed counsel for Johnson and held an evidentiary hearing outside of the jury's presence in order to establish Johnson's intention to "plead the Fifth" on the record. We agree with the trial court and Johnson's counsel that answering any questions concerning the evening of defendant's arrest, even as to Johnson's presence at the scene of the crime, might have tended to incriminate Johnson.

Placing Johnson on the stand to invoke his Fifth Amendment privilege may have allowed the jury to infer that Johnson, not defendant, was guilty of the present charge. However, as the Court of Appeals noted, this procedure would produce no "substantial evidence." A witness who exercises his Fifth Amendment right is not confessing or admitting guilt. Therefore no inferences may be drawn from his refusal to testify.

"There is disagreement whether a claim of the self-incrimination privilege logically supports an inference of guilt. While the law draws no such inference, 'the layman's natural first suggestion would probably be that the resort to privilege in each instance is a clear confession of crime.' 8 Wigmore, Evidence (McNaughton rev), Sec. 2272, p 426." 399 Mich. 646, n 6, 250 N.W.2d 492.

In People v. Thomas, 51 N.Y.2d 466, 434 N.Y.S.2d 941, 415 N.E.2d 931 (1980), the New York Court of Appeals held that defense counsel had no absolute right to call an alibi witness whom counsel knew would refuse to testify on the basis that his testimony might be self-incriminating. In Thomas, as in the present case, defense counsel wanted the witness to invoke his testimonial privilege in front of the jury.

"[A] witness' refusal to testify on constitutional grounds does not, in and of itself, have any real probative...