People v. Mata

• Decision Date: 06 December 1977
• Docket Number: Docket No. 77-494
• Citation: People v. Mata, 263 N.W.2d 332, 80 Mich.App. 204 (Mich. App. 1977)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carlos MATA, Defendant-Appellant.
• Court: Court of Appeal of Michigan

Page 332

263 N.W.2d 332

80 Mich.App. 204

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carlos MATA, Defendant-Appellant.

Docket No. 77-494.

Court of Appeals of Michigan.

Dec. 6, 1977.

Released for Publication March 14, 1978.

State App. Defender, James R. Neuhard, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert Kaczmarek, Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and V. J. BRENNAN and KELLY, JJ.

DANHOF, Chief Judge.

The Supreme Court vacated our earlier disposition of this case, 68 Mich.App. 337, 242 N.W.2d 574 (1976), and remanded the case back to this Court for reconsideration in light of People v. Atkins, 397 Mich. 163, 243 N.W.2d 292 (1976). 399 Mich. 834, 250 N.W.2d 68 (1977).

Defendant Mata was found guilty of delivery of heroin in violation of M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a) on the testimony of a paid police informant. The issue which was before this Court in our earlier decision was whether the trial judge clearly erred in concluding that no promises of leniency were made to the witness for his testimony. We concluded that the trial judge did not err.

The Atkins opinion dealt with three issues:

"(1) Whether reversal is required because the trial court did not sua sponte instruct the jury that the testimony of an addict-informer was to be received with care and caution;

"(2) Whether the uncorroborated testimony of an addict-informer is insufficient as a matter of law to make a jury-submissible issue on defendant's guilt; and

"(3) Whether the jury was misled by a failure to disclose the possibility of future favorable treatment for the addict-informer testifying against defendant." 397 Mich. at 167, 243 N.W.2d at 293.

As to the first issue, the Court held that where the defendant's strategy was to put the witness "on trial", there would be no error in failing to sua sponte give a special cautionary instruction. The record in the instant case discloses the following instruction and subsequent discussion:

"In weighing the testimony and determining the credibility of all the witnesses in the case, you should take into consideration the interest or lack of interest of each witness in the outcome of the case. You should take into consideration the manner in which the various witnesses have given their testimony upon the witness stand, the opportunity that they or any of them may have had for observation or knowledge of the subject matter about which they testified, their honesty, their memory, their capacity and understanding, probability or improbability of their statements, and their bias or prejudice, if any, as shown by the evidence in the case."

"(In the absence of the jury, the following proceedings were had:)

"THE COURT: While the jury was still in the jury box and before it had retired to commence its deliberations, the Court called counsel for both sides to the bench and asked if there were any objections to the charge of the Court or any further requests for instructions which either counsel desired to present.

"At that time, the Court understood that counsel both stated that they had no further instructions and no objections to the charge as stated; is that correct, gentlemen?

"MR. MARTIN (defense attorney ): That's correct, Your Honor, on behalf of the defendant."

The record discloses no request by the defendant for a special cautionary instruction. As in Atkins, the defense strategy in the instant case was to attack the credibility of the informant-witness. As in Atkins, we find no reversible error in the instant case.

As to the second Atkins issue, the Court held that:

"We hold that the credibility of an addict-informer, like that of an accomplice, is a jury question, and that the jury may convict on such testimony alone." 397 Mich. at 172, 243 N.W.2d at 295.

As to the third Atkins issue, the Court stated in part:

"However, it is one thing to require disclosure of facts (immunity or leniency) which the jury should weigh in assessing a witness's credibility. It is quite another to require 'disclosure' of future possibilities for the jury's speculation. Indeed, if a prosecutor were required to volunteer that, although there was no agreement, he intended to recommend some sort of consideration for a witness because the witness was testifying in this and other cases or had corrected his past misdeeds, could this not be viewed as vouching for that witness's credibility? The focus of required disclosure is not on factors which may motivate a prosecutor in dealing subsequently with a witness, but rather on facts which may motivate the witness in giving certain testimony. Of the latter, this jury was made well aware by means of the thorough and probing cross-examination by defense counsel." 397 Mich. at 174, 243 N.W.2d at 296.

As in Atkins, there has been no showing of an actual undisclosed agreement or promise made by the prosecution to the witness for leniency or other reward. While it is clear that the paid informant-witness in the instant case had an expectation of consideration for his cooperation, we believe that the jury was made well aware of the facts motivating the witness through the thorough cross-examination and closing argument of defense counsel.

In his concurring opinion in Atkins, Justice Levin wrote:

"Although the record does not support a conclusion that there was an agreement, the probability is that there was a tacit understanding.

"I question the usefulness of a distinction between the 'disclosure of facts (immunity or leniency) which the jury should weigh in assessing a witness's credibility' and ' "disclosure" of future possibilities for the jury's speculation'."

"A statement by an accomplice-informer witness that no promise has been made to him is misleading although no positive promise has been made if he has a reasonable expectation of leniency or other reward. The statement is not wholly true as it conceals the witness's expectations, expectations fostered by the practice of granting concessions to accomplice-informer witnesses. The apparent purpose of knowing concealment and a failure to correct the record is to mislead the jury."

"If there is an agreement with a prosecution witness, it must be disclosed to the jury.

"If there is no agreement and charges of law violation have been or could be lodged against the witness or sentencing has been deferred, and in similar cases the prosecutor has refrained from prosecuting or has granted or sought charge reduction or leniency in sentencing for witnesses who assisted the prosecution, those facts and their significance should be fully disclosed and explained to the jury." 397 Mich. at 177-183, 243 N.W.2d at 297.

In People v. Crawl, 401 Mich. 1, 257 N.W.2d 86 (1977), Justice Levin cites Atkins stating:

"Such disclosure should * * * be full and complete to avoid misleading the jury." 401 Mich. at 34, 257 N.W.2d at 100.

At defendant Mata's trial, the jury was made aware that the paid informant witness had been able to avoid prosecution for past crimes, that the prosecutor's office had previously dismissed several criminal charges against the witness which involved a variety of crimes, that the witness was a paid informant, that the witness was presently facing several pending felony charges, that the witness was acquainted with some members of the prosecutor's staff, that the witness was "not looking forward to going to prison", and that the witness had previously gone along with "deals" worked out between his attorney and the prosecutor. In his closing argument the defense attorney contended that the prosecution witness had committed perjury, that the witness "is like a traveling minstrel, a traveling minstrel with a guitar or a he sings a song and he gets a reward. Most of the time it's money. This time it's freedom from prison." In his rebuttal the prosecutor stated in part: "We've got the detectives. They watched him do it, watched Tom (the paid informant witness). We've got Tom's testimony, nothing else. Tom is in jail today. He came over here fortunately, they didn't leave his jail clothes on him. Cases are still going against him, B and E's, to be tried very soon." We believe that this record contains a full and fair disclosure of the "facts which may motivate the witness" in giving his testimony. We do not believe the jury was misled by the witness's denial that he expected some deals to be made in those pending cases. We therefore find no error.

Affirmed.

KELLY, Judge (concurring).

I concur in the result reached by the majority principally because I cannot conceive how to reasonably implement for trial courts the unworkable mandate of People v. Atkins, 397 Mich. 163, 243 N.W.2d 292 (1976), which condemns itself out of its own text. High court decisions which arrive through a sometimes tortuous dialectic process at a pronouncement of new legal principles should not be cast on lower courts to apply retroactively.

Our decision in Mata was released April 5, 1976. The following July the Supreme Court decided People v. Atkins. The issue in Atkins for which we are ordered to reconsider Mata is "whether the jury was misled by a failure to disclose the possibility of future favorable treatment for the addict-informer testifying against defendant." 397 Mich. at 167, 243 N.W.2d at 293. The Atkins court discusses the issue in the context of a Federal "trend". Can there be any doubt that requiring a cautionary instruction on the basis of an informer's subjective expectations is innovative?

Although the court set forth broad rules, it made no application of those rules in the case before it. The distinction between "reasonable expectations" and "future possibilities" is nebulous. ¹ In the present case, one Thomas Cooper testified at trial that he did not receive any promises in exchange for his testimony or work as an informant, nor did he expect any deals. At the evidentiary hearing, held to determine if...