People v. Giacalone

• Citation: 399 Mich. 642,250 N.W.2d 492
• Decision Date: 15 February 1977
• Docket Number: No. 13,13
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph GIACALONE, Defendant-Appellant. 399 Mich. 642, 250 N.W.2d 492
• Court: Supreme Court of Michigan

Page 492

250 N.W.2d 492

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph GIACALONE, Defendant-Appellant.

No. 13.

399 Mich. 642, 250 N.W.2d 492

Supreme Court of Michigan.

Feb. 15, 1977.

Donald A. Kuebler, Chief Appellate Division, Joel B. Saxe, Senior Asst. Pros. Atty., Robert F. Leonard, Prosecuting Atty., Genesee County, Flint, for plaintiff-appellee.

Thomas R. McCombs, Flint, for defendant-appellant.

LEVIN, Justice.

Joseph Giacalone, Caesar Montevecchio and Loren Jolly were charged with armed robbery. ¹

Jolly was separately tried and convicted. Giacalone and Montevecchio were tried together and convicted.

In this appeal of Giacalone's conviction, ² he asserts that, in calling Jolly as a witness knowing that he would claim the privilege against self-incrimination, the prosecutor acted improperly.

Charles Kinsman, a confederate turned state's witness, testified that he drove a getaway car. Jolly and Montevecchio entered a jewelry store and committed the robbery. Giacalone drove another getaway car.

Giacalone's roommate testified that on the morning of the robbery Giacalone awakened him and told him to leave the apartment because he thought the police were outside. Jolly was in the living room sorting jewelry. Montevecchio came in as the roommate was leaving.

Kinsman identified a necklace he had retrieved from Giacalone's sister; he said Giacalone had taken it from the stolen jewelry. The sister testified that Giacalone had given her a necklace two months after the robbery, that Kinsman had stolen the necklace from her, and that the necklace introduced at trial was not the one her brother gave her. Giacalone's mother corroborated her daughter's testimony.

Jolly's attorney advised the judge and other counsel that Jolly would claim his Fifth Amendment privilege and refuse to testify. ³ The prosecutor was permitted, over objection, to call Jolly to the stand. He asked two questions and when Jolly invoked the privilege sat down:

'Q. What is your name?

'A. Loren Jolly.

'Q. Mr. Jolly, do you recall the date of August 15, 1967?

'A. By advice of Counsel, I refuse to answer on the ground that it may tend to incriminate me.'

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 Giacalone to testify. There was, however, no 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

--'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

The rationale of the rule has been explained by the Supreme Court of Iowa:

'When an alleged accomplice invokes the privilege in the presence of the jury, prejudice arises from the human tendency to treat the claim of privilege as a confession of crime, creating an adverse inference which an accused is powerless to combat by cross-examination.' State v. Allen, 224 N.W.2d 237, 241 (Iowa, 1974). ⁶

A number of state courts have reversed convictions where a prosecutor called an accomplice knowing that he would exercise his Fifth Amendment privilege. State v. Duhon, 332 So.2d 245 (La.1976); Johnson v. State, 158 Tex.Cr.R. 6, 252 S.W.2d 462 (1952); De Gesualdo v. People, 147 Colo. 426, 364 P.2d 374, 86 A.L.R.2d 1435 (1961). Cf. State v. Vega, 85 N.M. 269, 511 P.2d 755 (Ct.App.1973).

Michigan case law recognizes the danger that an adverse inference may be drawn from a claim of testimonial privilege. It has been held to be error for a prosecutor to call a witness, forcing the defendant in the jury's presence to claim the marital privilege or the attorney-client privilege. ⁷

When Jolly declined to answer whether he recalled 'the date of August 15, 1967,' the date of the offense, on the ground that his answer 'may tend to incriminate me' the jury may have inferred that the answer if given would have been favorable to the prosecution. The jurors were informed through Kinsman's testimony that Jolly and Giacalone had committed the offense. Jolly was thus connected to Giacalone. An adverse inference from Jolly's refusal to answer may have carried over to Giacalone.

Giacalone's counsel vigorously objected to the calling of Jolly. No instruction concerning Jolly's claim of privilege was given. ⁸

Reversed and remanded.

KAVANAGH, C.J., and WILLIAMS, COLEMAN, FITZGERALD and RYAN, JJ., concur.

MOODY, J., not participating.

1 M.C.L.A. § 750.529; M.S.A. § 28.797.

2 Montevecchio appealed separately; his conviction was reversed because of improper closing argument by the prosecutor. People v. Montevecchio, 32 Mich.App. 163, 188 N.W.2d 186 (1971).

Giacalone's conviction was affirmed by a different panel of the Court of Appeals, People v. Giacalone, 52 Mich.App. 428, 217 N.W.2d 444 (1974), which found the same remarks not to be sufficiently prejudicial to merit reversal in the absence of timely objection and request for a cautionary instruction.

'Jolly's conviction was affirmed on appeal but sentence was vacated and the cause was remanded for sentencing because 'the trial judge impermissibly considered certain matters in the sentencing process.' People v. Jolly, 51 Mich.App. 163, 214 N.W.2d 849 (1974).

3 Although Jolly had already been convicted, an appeal was pending. He could still exercise the privilege. See People v. DenUyl, 318 Mich. 645, 29 N.W.2d 284 (1947).

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

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

6 The commentary accompanying the ABA Standards similarly states that the rule against calling a witness knowing that he will exercise a valid privilege not to testify is grounded in "the impossibility of effective cross-examination and the possibility that the jury may give inferences from the claim of privilege more weight than they deserve.' Note, (Exercise of the Privilege Against Self-Incrimination by Witnesses and Codefendants: The Effect Upon the Accused,) 33 U.Chi.L.Rev. 151, 154 (165) (1965).' ABA Standards, Supra, commentary accompanying the prosecution function, § 5.7, p. 125. See, generally, Anno: Prejudicial effect of prosecution's calling as witness, to extract claim of self-incrimination privilege, one involved in offense with which accused is charged, 86 A.L.R.2d 1443.

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.), § 2272, p. 426.

Our holding is based on evidentiary trial error. A number of recent decisions finding error in a prosecutor's calling and questioning a witness he knows will claim the privilege do so on Sixth Amendment grounds--the defendant was denied his right of confrontation because the inference is not subject to cross-examination. See State v. Nelson, 72 Wash.2d 269, 432 P.2d 857 (1967); Commonwealth v. Terenda, 451 Pa. 116, 301 A.2d 625 (1973); and Robbins v. Small, 371 F.2d 793 (CA 1, 1967), Cert. den. 386 U.S. 1033, 87 S.Ct. 1483, 18 L.Ed.2d 594 (1967). See also Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).

We see no need to reach the constitutional issue. Difficulty in obtaining effective cross-examination has been a traditional reason for excluding evidence--for example, hearsay.

7 See People v. Trine, 164 Mich. 1, 129 N.W. 3 (1910) (marital) and People v. Dahrooge, 173 Mich. 375, 139 N.W. 22 (1912) (attorney-client).

8 The judge instructed that Jolly was not a party to the case and that the disposition of his case had no bearing on the guilt or innocence of Montevecchio and Giacalone. He further instructed that no...