People v. Lopez

• Decision Date: 18 August 2016
• Docket Number: Docket No. 327208.
• Citation: 892 N.W.2d 493,316 Mich.App. 704
• Parties: PEOPLE of the State of Michigan, Plaintiff–Appellee, v. Devaun Laroy LOPEZ, Defendant–Appellant.
• Court: Court of Appeal of Michigan — District of US

316 Mich.App. 704

892 N.W.2d 493

PEOPLE of the State of Michigan, Plaintiff–Appellee,

v.Devaun Laroy LOPEZ, Defendant–Appellant.

Docket No. 327208.

Court of Appeals of Michigan.

Aug. 18, 2016.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, John A. McColgan, Jr., Prosecuting Attorney, and Nathan J. Collison, Assistant Prosecuting Attorney, for the people.

Ronald D. Ambrose, Livonia for Devaun L. Lopez.

Before: STEPHENS, P.J., and SERVITTO and GLEICHER, JJ.

PER CURIAM.

The Due Process Clause of the Fourteenth Amendment affords an accused a constitutional right to present witnesses in his own defense. Substantial government interference with a defense witness's choice to testify violates this right.

Here, the interference involved a prosecution witness, Dennis Hoskins. Minutes after Hoskins agreed to testify at Lopez's trial, the prosecutor threatened Hoskins that deviation from his preliminary examination testimony would result in prosecution for perjury and life imprisonment on conviction. Hoskins subsequently invoked his Fifth Amendment privilege, and his preliminary examination testimony was presented to the jury. The trial court acknowledged that Hoskins refused to testify because he felt "threatened" by the prosecutor. Lopez contends that because the prosecutor's conduct procured Hoskins' unavailability, the prosecutor was precluded from relying on an exception to the hearsay rule, MRE 804(1), to support the introduction of Hoskins' former testimony.

Our Supreme Court has forcefully condemned prosecutorial intimidation of witnesses, People v. Pena, 383 Mich. 402, 175 N.W.2d 767 (1970), and so has this Court. People v. McIntosh, 142 Mich.App. 314, 370 N.W.2d 337 (1985). No principled basis exists for distinguishing between the intimidation of defense witnesses and the silencing of prosecution witnesses. Because the prosecutor's threat procured Hoskins' unavailability, the trial court erred by admitting Hoskins' recorded testimony. We vacate and remand for a new trial.

I

Lopez and his codefendant, Jarriel Reed, stood trial for the shooting death of Terry Johnson. Johnson was gunned down as he stood on a Saginaw sidewalk. He had just finished a trip to a nearby market, accompanied on the walk by his mother, Diane Austin, and a friend.

Austin immediately deduced that Johnson's ex-girlfriend, Dominique Williams, had fired the fatal shots, as Johnson and Williams had engaged in "a real raging argument" earlier that day. Following the argument, Williams had threatened to kill Johnson and brandished a knife to validate her intentions. The police cleared Williams after interviewing her and conducting a comprehensive investigation. The investigation unearthed several pieces of evidence tying Lopez and Reed to the shooting.

The investigating officers found fresh, spent .380–caliber shell casings approximately one block from the scene. One officer recognized the casings as identical in caliber, color and brand to those found near a drive-by shooting committed eight days earlier. The police suspected that Hoskins had been the shooter in that case, accompanied by Reed and Lopez. Information obtained from a resident in the neighborhood of Johnson's shooting sharpened the focus on Lopez. The witness reported seeing a man run down the sidewalk after the gunfire. During a photo show-up she picked out Lopez as appearing "most like the runner," but she could not make a definitive identification. Adding to the data pointing to Reed's involvement, a friend of his told the police that Reed had admitted to killing Johnson, confessing: "I got the wrong one, but I did it."

Dennis Hoskins supplied the core evidence tying Lopez to Johnson's murder. During his preliminary examination, Hoskins conceded that he faced a charge of assault with intent to commit murder arising from the drive-by shooting, and that Lopez had testified against him during the preliminary examination in that case. Several months after Johnson's shooting, Hoskins agreed to provide information to the police and prosecutor incriminating Reed and Lopez. He testified that both had admitted to participating in Johnson's murder, with Lopez acting as the trigger-man. According to Hoskins, Reed initially believed that Johnson was a man called "Zeke" who had shot and wounded Reed's brother some years earlier. Hoskins claimed that Reed and Lopez had openly discussed various details of Johnson's killing, including that the gun involved was a .380 caliber.

One week before the joint trial of Reed and Lopez was scheduled to begin, the prosecutor filed a motion to declare Hoskins " unavailable" as a witness and to admit his preliminary examination testimony pursuant to MRE 804(b)(1). The motion was based on a voicemail the prosecutor received from Hoskins' attorney, Robert Dunn, advising that Hoskins was no longer willing to testify.

The Court considered the prosecutor's motion on the day before trial. Hoskins asserted at this hearing, "I wish to testify at trial." A court officer then guided Hoskins from the courtroom.

The following morning, before jury selection, the prosecutor referenced an issue that had been discussed in chambers and off the record. He advised the court, "[I]t was brought to my attention[ ] that as Mr. Hoskins was leaving the courtroom and after we had the hearing on the motion to declare him unavailable, that he made comments to [Lopez and Reed] to the effect that, ‘I've got you covered, bro.’ " The prosecutor explained that he had interpreted this statement to mean that Hoskins "may intend to perjure himself during this trial, or give testimony that's inconsistent with his testimony at the preliminary examination." Citing an unpublished opinion issued by this Court in 1997, the prosecutor requested that the court summon Hoskins and advise him, outside the presence of the jury, "of his Fifth Amendment right if he does intend to give perjured testimony, to make sure he is aware of his rights, and then determine what if anything he decides to do at that point."¹

The prosecutor then brought to the trial court's attention that Reed's counsel, Edwin Johnson, III, had accused the prosecutor of "threatening or intimidating Mr. Hoskins during our colloquy with him yesterday morning." According to the prosecutor, attorney Johnson had been the first to advise Hoskins that he could face perjury charges. The prosecutor continued, "I did follow that up with I'm not going to threaten you, but we will—we could possibly charge you with perjury if you do say something that's inconsistent with what you testified to at the preliminary examination." The prosecutor urged that this Court's unpublished 1997 case supported that "if I did in fact, I suppose, quote-unquote, threaten him, ... the court says that's not a threat. That's just the reality. If you do provide perjured testimony, you could in fact be charged with perjury."

Attorney Johnson took issue with the prosecutor's reprise of the interaction. "It's not just that the prosecutor, in my view, threatened the witness," Johnson urged, "but he also stated to the witness that if he was convicted, he would be facing life in prison, which is a misstatement of the law."

Lopez's attorney interjected that he witnessed the interaction with Hoskins. He described that the prosecutor

did in fact tell the witness that he would be looking at life. And the manner in which [the prosecutor] spoke was not as he spoke here; it was more of a threatening, kind of an aggressive statement to this young man. It wasn't just, well, these are your rights, young man. You know, just the tone of his voice, it sounded like a threat to me.

One of the investigating officers was also in the room during the discussion with Hoskins. She reported, "I didn't hear any threats or anything. [The attorneys] spoke to Mr. Hoskins just as they spoke to you.... I didn't hear any threatening from either one of them."

The court noted that Hoskins consulted with his own attorney before agreeing to testify. As neither Hoskins nor his counsel was present, the court indicated it would revisit the issue outside the presence of the jury when Hoskins took the stand.

Hoskins and his counsel, Dunn, were present on the third day of the trial. Attorney Dunn indicated that he and Hoskins had discussed the issue further. The following colloquy ensued:

Mr. Dunn. I believe at this point, after considering the matter again, he wishes to exercise his Constitutional right under the Fifth Amendment of the United States Constitution and refuse to answer questions which could subject him, possibly, to a charge of perjury if he were to answer them.

The Court. Mr. Hoskins, did you hear and understand what [your attorney] has stated to the Court?

The Witness. Yes. The prosecutor's told me—they threatened me with life in prison.

The Court. Okay. With regard to your right to testify or not testify, do you wish to exercise your Fifth Amendment privilege and not testify at this time?

The Witness. Yes, sir.

After Hoskins was escorted from the courtroom, the prosecutor renewed his motion to declare Hoskins unavailable and to admit his preliminary examination testimony pursuant to MRE 804(b)(1). Reed's counsel asked that "the record ... reflect" that Hoskins had elected against testifying because he had been threatened with life imprisonment if his testimony differed from that given at the preliminary exam. Counsel requested that the jury be instructed that it was the prosecutor's duty to produce this witness who was rendered unavailable by the prosecution itself, and that the jury could "infer that his testimony would have been damaging to their case had he appeared."

Reed's counsel also objected to the admission of the preliminary examination testimony "because I can't cross-examine a transcript" and "there was evidence produced after the preliminary exam that would impeach his testimony during the preliminary exam." But counsel "reluctantly underst[oo]d that" the exam could be placed into evidence...