People v. King, Docket No. 62416
| Decision Date | 20 March 1984 |
| Docket Number | Docket No. 62416 |
| Citation | 131 Mich.App. 542,346 N.W.2d 51 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lorne KING, Defendant-Appellant. 131 Mich.App. 542, 346 N.W.2d 51 |
| Court | Court of Appeal of Michigan — District of US |
[131 MICHAPP 543] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Deputy Chief, Appellate Pros. Atty., and A. George Best, II, Asst. Pros. Atty., for the People.
Gerald S. Surowiec, Farmington Hills, for defendant-appellant.
Before HOLBROOK, P.J., and WAHLS and LAMB *, JJ.
The defendant was arrested in connection with a grocery store holdup on April 28, 1981, in which two persons were killed. Defendant[131 MICHAPP 544] was charged with two counts of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, two counts of felony murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, one count of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and one count of possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2).
The jury at trial was unable to reach a verdict on the first four counts, but found defendant guilty of the latter two. 1 On November 24, 1981, defendant was sentenced to serve 50 to 75 years for armed robbery and two years for felony firearm. Defendant appeals as of right.
On appeal, defendant raises three issues. The dispositive question of the trilogy is whether the trial court erred in allowing the prosecutor to call defendant's accomplice as a witness, knowing that the witness would claim the privilege against self-incrimination as to matters concerning the alleged crimes, even though the accomplice did not in fact assert the privilege on the stand. 2 We hold that the incident unfairly prejudiced defendant's right to a fair trial and reverse for the reasons stated below.
The accomplice, Herman Noble, was arrested and charged with the defendant. Mr. Noble pled guilty to two counts of second-degree murder, one count of armed robbery and felony firearm, as part of a plea bargain with the prosecutor. Mr. Noble was endorsed as a witness in defendant's trial over objection. However, after being endorsed, and prior [131 MICHAPP 545] to sentencing, Mr. Noble sought to withdraw his plea. On the day Mr. Noble was scheduled to testify, a hearing had been scheduled on his request.
The trial judge conducted a hearing away from the jury to determine whether the prosecutor would call Mr. Noble as a witness in light of the changed circumstances. The record discloses the following discussion in pertinent part:
THE COURT: All right. Do the People intend to call Mr. Herman Noble, who is endorsed on the Information?
MR. NEATON [Attorney for the People]: Yes, Your Honor.
Thereafter, Mr. Noble, present with his attorney, notified the trial court that he would assert his Fifth Amendment privilege if questioned in connection with the crimes.
MR. BLAKE [Attorney for Noble]: Your Honor, I have conferred with Mr. Noble with respect to his appearance as a witness in this case. Mr. Noble informed me that he had entered a plea of guilty before this Court to a crime involved in this case. Mr. Noble informed me that subsequent to entering that plea of guilty he desired to withdraw his plea prior to sentencing and that he, in fact, wrote your Honor, as you've stated, advising you that he desires to withdraw this plea.
* * * I've advised Mr. Noble, therefore, that his posture is that there is a possibility, should the Court allow him to withdraw, that he would then proceed to trial on the crime charged. * * * I've advised Mr. Noble, therefore, that should he take the stand and should the Prosecution pose questions to him concerning the facts and circumstances surrounding the crime to which he faces a prospective possibility of a trial, that he has a right, your Honor, not to incriminate himself and to assert [131 MICHAPP 546] the 5th Amendment with respect to the crime charged. Is that correct, Mr. Noble?
Over the objection of the defendant's lawyer, the trial judge allowed the prosecutor to call Mr. Noble as a witness. The judge ruled that since Mr. Noble was endorsed as a witness he could be called.
Once on the stand, Mr. Noble answered the following questions:
Q. Sir, your name is Herman Noble, is that correct?
A. Yes, sir.
Q. How old are you?
A. Twenty.
Q. Do you have a sister named Kim Noble?
A. Yes.
Q. How old is she?
A. She's 21.
Q. And do you know Lorne King?
A. Yes, sir.
Q. And is Lorne King your sister Kim's boyfriend?
A. I do not know.
Q. Do you know where your sister Kim was living or staying last April of 1981?
A. Yes.
Q. Where was that?
A. West Grand Boulevard with my mother.
Q. And is that in the same building that Lorne King stayed at that time?
A. I don't know if Lorne King stayed there or not.
Q. You know the address of that building.
A. I think it's 2318.
[131 MICHAPP 547] Q. West Grand Boulevard?
A. Yes.
MR. NEATON [Attorney for the People]: Thank you, That's all.
Defendant's counsel again objected and moved for a mistrial. The motion was denied. Defendant did not cross-examine Mr. Noble.
The prosecution argues that, because Mr. Noble did not assert his Fifth Amendment privilege, nor testify to any fact from which the jury could infer guilt with respect to him or the defendant, the verdict should be affirmed. However, the ethical standards relating to the prosecutorial function, as well as our own decisions, compel us to reject this argument.
The Michigan Supreme Court in People v. Giacalone, 399 Mich. 642, 645, 250 N.W.2d 492 (1977), established the standard which this Court must apply:
(Footnotes omitted.)
This Court has recently applied the Giacalone standard in several cases. While we have disagreed on its application to a defendant who calls a recalcitrant witness compare People v. Bashans, 80 [131 MICHAPP 548] Mich.App. 702, 265 N.W.2d 170 (1978), with People v. Squires, 100 Mich.App. 672, 300 N.W.2d 366 (1980), lv. den. 410 Mich. 919 (1981), and People v. Jerry Johnson (After Remand ), 86 Mich.App. 430, 272 N.W.2d 672 (1978), lv. den. 406 Mich. 864 (1979), as to the prosecutor, our holdings have reinforced the inveterate policy in Michigan of disfavoring convictions obtained with suspicions of prosecutorial misconduct. People v. Swindlehurst, 120 Mich.App. 606, 328 N.W.2d 92 (1982), lv. den. 417 Mich. 900 (1983); People v. Squires, supra; People v. Hines, 88 Mich.App. 148, 276 N.W.2d 550 (1979), lv. den. 406 Mich. 934 (1979); People v. Savard, 73 Mich.App. 175, 250 N.W.2d 565 (1977). This policy is particularly felicitous when a prosecutor goes through the motions of calling a witness who he knows intends to assert the Fifth Amendment privilege. See Bashans, supra, 80 Mich.App. p. 710, 265 N.W.2d 170.
In People v. Poma, 96 Mich.App. 726, 294 N.W.2d 221 (1980), this Court spoke of the unfairness inherent in merely putting a recalcitrant witness on the stand when the witness intends to assert the privilege:
Poma, supra, p. 733, 294 N.W.2d 221.
We adopt the Poma reasoning, although we need not apply the breadth of the Poma holding; it is clear that Mr. Noble had a valid privilege to assert as to the matters the prosecutor so stealthily [131 MICHAPP 549] avoided. Mr. Noble's situation was similar to that of an accomplice in People v. Swindlehurst, supra. There the defendant argued on appeal that it was improper for the prosecutor to comment in closing argument on the failure of the accomplice to testify on the defendant's behalf. This Court rejected the defendant's argument because of his failure to object during trial, however, as to the merits of his contention, the Court noted:
"The witness in question, one Evans, had pled guilty and was awaiting sentence at the time of this trial. The record is silent as to whether, if he had been called by either side, he would have claimed his Fifth Amendment privilege. Having in mind the possibilities of a withdrawal of his guilty plea, or a successful appellate challenge to his conviction, there is reason to believe that he would have invoked his Fifth Amendment privilege if called.
It would have been error for either the prosecutor or defense counsel to call Evans as a witness under such circumstances. People v Giacalone, 399 Mich 642; 250 NW2d 492 (1977). See also People v DeGoenaga, 202 Mich 503; 168 NW 436 (1918)." Swindlehurst, supra, 120 Mich.App. p. 612, 328 N.W.2d 92.
Having found error in the fact that Mr. Noble was called to testify, we are unable to say that the error is harmless. The standard for harmless error consists of...
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