People v. Jones

• Decision Date: 08 October 1999
• Docket Number: Docket No. 208249.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Bennie JONES III, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

600 N.W.2d 652

236 Mich. App. 396

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Bennie JONES III, Defendant-Appellee.

Docket No. 208249.

Court of Appeals of Michigan.

Submitted February 3, 1999, at Detroit.

Decided June 25, 1999, at 9:30 a.m.

Released for Publication October 8, 1999.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Janet A. Napp, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by David A. Moran), for the defendant on appeal.

Before: TALBOT, P.J., and NEFF and SMOLENSKI, JJ.

TALBOT, P.J.

This case is on remand from the Michigan Supreme Court for consideration as on leave granted. 456 Mich. 893, 572 N.W.2d 5 (1997). The prosecution appeals from an order granting defendant's motion for a new trial on the ground that certain immunized witnesses had been improperly coerced by the actions of the prosecutor and the original trial judge. We reverse and remand with instructions to the trial court to reinstate defendant's convictions and sentences.

On May 30, 1992, Tyronne Hackett, a fourteen-year-old boy, was shot while in front of his grandmother's house. Eight days later he died as a result of his injuries. Defendant was convicted by a jury of second-degree murder, M.C.L. § 750.317; MSA 28.549, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; MSA 28.424(2), for his role in Hackett's death. The trial court sentenced defendant to consecutive terms of two years' imprisonment for the felony-firearm conviction and eight to fifteen years' imprisonment for the murder conviction. The prosecution's theory was that defendant shot Hackett with a shotgun from an automobile while Hackett was engaged in an altercation with Genmante Gaither in front of the house.

After the incident, Gaither was arrested and charged with first-degree murder. The police also arrested Kenneth McFarland, Charles Arrington, Andre Arrington, and Charles Jones—four men present with defendant and Gaither at the time of the shooting. Gaither gave a statement to police implicating defendant as the shooter. Soon after that the other four men gave similar statements and were released without being charged with any crimes. Defendant was then arrested and charged with first-degree murder. At the first session of defendant's and Gaither's joint preliminary examination, McFarland, Andre Arrington, and Charles Jones asserted their Fifth Amendment rights against self-incrimination. Three days later they were granted "use" immunity.¹ The written immunity agreements provided as follows:

IN THE MATTER OF [Witness], that if [Witness] provides a truthful statement to the Detroit Police Department concerning his knowledge of the killing of Tyrone [sic] Hackett and testifies truthfully in all trials, proceedings and hearings in connection with that killing the Wayne County Prosecutor's Office will not use [Witness'] testimony to bring charges against him.

While it would appear from the text of the immunity agreements that the witnesses agreed to give a truthful statement to the police in the future, that was not the agreement contemplated by the parties. It is undisputed that the police statements referred to in the immunity agreements were those given by the witnesses when they were first arrested.

McFarland and Andre Arrington testified at the second session of the joint preliminary examination. Although they described the incident in which the shot was fired at Hackett, they did not implicate defendant as the shooter. Accordingly, the district court granted defendant's motion to dismiss the charges against him. The charges against defendant were reinstated when Gaither agreed to plead guilty of assault with intent to do great bodily harm less than murder in exchange for his promise to "testify truthfully against [defendant] as the shooter of Tyronne Hackett in any and all proceedings." After another preliminary examination, at which Gaither testified that he saw defendant fire a shot at Hackett, defendant was bound over on a charge of first-degree murder. Defendant then moved to quash the information. Granting defendant's motion, in part, the circuit court reduced the charge to second-degree murder.

At the outset of defendant's trial, the prosecutor asked the trial court to appoint separate lawyers for each of the immunized witnesses for the purpose of advising them of their potential exposure. She was concerned that McFarland's and Andre Arrington's testimony at the preliminary examination did not satisfy their obligations under their immunity agreements. She was also concerned with the fact that the immunized witnesses were represented by a single attorney who shared office space with defense counsel. The trial court agreed that each immunized witness should be advised by independent counsel and appointed three lawyers for that purpose. On the following day, the trial court explained the purpose of the appointments:

[The immunized witnesses] were to consult with the lawyers about two things, one the possible exposure they might have had in terms of immunity being withdrawn if they did not testify in the manner consistent with their original statement and two what might happen if it should ever develop that perjury was committed.

Each of the appointed attorneys then indicated on the record that their clients had been so advised and were prepared to adhere to the immunity agreements. Likewise, each of the immunized witnesses indicated satisfaction with their appointed attorneys.

The fourth witness at issue in this appeal, Charles Arrington, was granted "use" immunity immediately before his testimony at trial. All four witnesses testified for the prosecution at defendant's trial. Consistent with their police statements, each of them testified in a manner implicating defendant as the shooter. All four witnesses were also extensively cross-examined by defense counsel regarding the specific circumstances of their police statements and of their immunity agreements. In its charge to the jury, the trial court gave a general instruction concerning the evaluation of witnesses and then advised the jury to specifically consider how the immunity agreements might have affected the witnesses' credibility and tended to show bias.

In his first appeal to this Court, defendant argued that "the prosecutor and the trial court violated his due process rights by intimidating witnesses to testify untruthfully against him." See People v. Jones, unpublished opinion per curiam of the Court of Appeals, issued November 17, 1995 (Docket No. 167946). While the majority concluded that defendant's due process rights were not violated, a dissenting judge opined that the case should have been remanded for an evidentiary hearing pursuant to MCR 7.216(A)(5) in order to more fully develop defendant's allegations of the "witnesses altering their accounts" of the incident. In lieu of granting defendant's application for leave, the Supreme Court vacated the Court of Appeals judgment and ordered this Court to remand the case to the trial court "for an evidentiary hearing as proposed in the dissenting opinion in the Court of Appeals." People v. Jones, 453 Mich. 925, 554 N.W.2d 915 (1996). This Court, retaining jurisdiction, remanded the case for an evidentiary hearing.

The evidentiary hearing was held before a different judge on remand. At the hearing, McFarland, Charles Arrington, Andre Arrington, and Charles Jones asserted their Fifth Amendment rights against self-incrimination and did not testify. Linda Borus, the chief investigator for the State Appellate Defender's Office, testified that she had interviewed all four of the witnesses. According to Borus, the "gist" of their comments to her was that before defendant's trial they felt "intimidated" into testifying in accordance with their police statements. Following Borus' testimony, defendant's appellate counsel, David Moran, took the stand and testified similarly.² The only other witness to testify was Nancy Westveld, the prosecutor at defendant's trial. Although Westveld was not involved in the case when the first three immunity agreements were made, she testified that it was her understanding that the witnesses had agreed to testify "consistent with their statements to the police." She also indicated that the police statements were consistent with the physical evidence and with what the prosecution "knew about the facts of the case." Finally, she explained that she had no reason to believe that the police statements had been untrue.

At the close of the hearing on remand, the court explained that defendant was entitled to a new trial because the actions of the prosecution and the original trial judge had deprived defendant of a fair trial. In particular, the court explained that the testimony of the four immunized witnesses was tainted because the prosecution had improperly bargained for "specific testimony." According to the court, by conditioning immunity on both (1) the witnesses' assurances that their police statements had been "truthful" and (2) their promises to testify "truthfully" at trial, the prosecution had placed "undue pressure" on the witnesses to conform their trial testimony to their police statements. In other words, the witnesses had been "boxed in." The court explained that this problem was exacerbated by the original trial judge's decision to appoint independent counsel for three of the immunized witnesses, and by the "comments and statements" made by the trial judge to the appointed attorneys.

After the case was returned to this Court, the prior panel entered an order dismissing the appeal pursuant to a stipulation by the parties.³ Three days after the appeal was dismissed, the prosecution sought leave to appeal from the trial court's order granting defendant's motion for a new trial. This Court...