People v. Longuemire, Docket No. 77-1156

• Decision Date: 05 December 1978
• Docket Number: Docket No. 77-1156
• Citation: 87 Mich.App. 395,275 N.W.2d 12
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. John E. LONGUEMIRE, Defendant-Appellee. 87 Mich.App. 395, 275 N.W.2d 12
• Court: Court of Appeal of Michigan — District of US

Page 12

275 N.W.2d 12

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. John E. LONGUEMIRE, Defendant-Appellee.

Docket No. 77-1156.

87 Mich.App. 395, 275 N.W.2d 12

Court of Appeals of Michigan.

Dec. 5, 1978.

Released for Publication Feb. 9, 1979.

[87 MICHAPP 396] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Eugene C. Penzien, Pros. Atty., Peter F. Dahm, Asst. Pros. Atty., for plaintiff-appellant.

James R. Neuhard, State Appellate Defender, for defendant-appellee.

Before DANHOF, C. J., and BRONSON and CYNAR, JJ.

DANHOF, Chief Judge.

Defendant was charged with perjury, see M.C.L. § 750.422; M.S.A. § 28.664, ¹ on the basis of his testimony at a prior trial, in which he was defending against charges of breaking and entering, larceny over $100 and larceny in a building. On February 25, 1976, defendant was found guilty [87 MICHAPP 397] of these larceny and burglary charges. ² The perjury information was in three counts. Count one alleged perjury by defendant's testimony as follows: "I didn't commit that B & E. I didn't. I ain't never broke into people's houses." The second charged perjury by answering "no" to a question whether defendant had committed a breaking and entering in the neighborhood of a witness Mrs. Smith. The last count complained of knowing falsification by the statement: "I didn't commit no B & E. I'm innocent of that. If I ever did something wrong, I didn't do that. I didn't commit it."

The trial court granted defendant's motion to quash the information relying "solely on the authority of People v. Taylor (Jacoboni ), 34 Mich.App. 84, (190 N.W.2d 720) (1971)", and holding the perjury prosecution to constitute double jeopardy.

We disagree that the prosecution of this charge places defendant in double jeopardy for the reason that the alleged perjury and breaking and entering were clearly separate transactions. People v. White, 390 Mich. 245, 212 N.W.2d 222 (1973). However, we affirm the quashing of the information for the reasons stated below.

Any threat of prosecution for perjury based on testimony by the defendant in a criminal proceeding raises a potential conflict of interest. On the one hand, the fear of collateral repercussions from testifying may discourage an accused from taking the stand on his own behalf. Scott v. United States, 135 U.S.App.D.C. 377, 419 F.2d 264 (1969). A defendant's right to testify on his own behalf is of constitutional[87 MICHAPP 398] magnitude, Guilty Plea Cases,395 Mich. 96, 235 N.W.2d 132 (1975), and is expressly safeguarded by our own court rules, GCR 1963, 785.7(1)(g)(x). On the other hand, excusing defendants from liability for perjury might encourage false testimony and thereby diminish the integrity of our factfinding system. In a related context, the United States Supreme Court recently held that a criminal defendant has no protected right to commit perjury. United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978).

As a rule of law to resolve this conflict, we hold that although a criminal defendant taking the stand on his own behalf does not have a license to lie, United States v. Grayson, supra, he must be protected from threats of perjury prosecutions that Unnecessarily chill his right to testify. Cf. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968).

In determining whether a perjury information unnecessarily discourages a defendant from exercising his right to testify, a careful distinction must be drawn between perjury as to basic adjudicative facts and perjury as to issues of ultimate fact or law mixed with fact. Basic adjudicative facts pertain to who did what, where, when, how and with what motive or intent. Davis, Administrative Law, § 7.03, p. 160. They may be proved for both substantive and impeachment purposes. Ultimate fact questions concern the legal definitions and effects ascribed to the basic facts or combinations of basic facts as found. ³ At common law, it is [87 MICHAPP 399] doubtful that false testimony as to the latter can ever be a basis for a perjury charge, since a court would most likely construe it as mere opinion or as a conclusion of law beyond the realm of common knowledge. See 18 Mich.Law & Practice, Perjury, § 1, p. 458. But see Hoch v. People, 3 Mich. 552 (1855); Cf. Guilty Plea Cases, supra, (for purposes of informing defendant of the nature of the charges against him, it can be expected that most persons will understand the generic term "breaking and entering"). To the extent such a charge is valid at common law, it is constitutionally impermissible as it discourages defendants from exercising their rights to testify, without substantially benefiting the administration of justice. The chance that a defendant will lie about the ultimate fact at issue in his case does not significantly threaten the integrity of the fact-finding process. Knowing the primary historical events, the fact-finder can judge guilt or innocence on its own. The discouraging effect of potential perjury liability in such a situation, while not overwhelming, ⁴ is "unnecessary and therefore excessive". Cf. United States v. Jackson, supra, 390 U.S. 582, 88 S.Ct. 1209.

United States v. Grayson, supra, is not inconsistent with this approach. That case dealt with the validity of sentence enhancement for perjury rather than separate and subsequent liability for perjury. Hence, the decision implicates a different policy choice; rather than seeking to ensure the integrity of the fact-finding process, the Grayson Court was concerned with the relevancy of a defendant's mendacity to sentencing. Moreover, the [87 MICHAPP 400] alleged perjury in Grayson went to basic adjudicative facts rather than ultimate questions of fact and law. Grayson, while on...