People v. McIntire

Decision Date09 October 1998
Docket Number194362,Docket Nos. 194301
Citation591 N.W.2d 231,232 Mich.App. 71
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Charles Raymond McINTIRE, Defendant-Appellee. People of the State of Michigan, Plaintiff-Appellee, v. Charles Raymond McIntire, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Vicki P. Kundinger, Prosecuting Attorney, Donald J. McLennan, Special Prosecuting Attorney, and J. Ronald Kaplansky, Assistant Attorney General, for the people.

State Appellate Defender (by C. Joseph Booker ), for the defendant on appeal.

Charles R. McIntire, In Propria Persona.

Before YOUNG, Jr., P.J., and MARKMAN and SMOLENSKI, JJ.

MARKMAN, J.

In Docket No. 194301 of these consolidated appeals, the prosecutor appeals as of right an order dismissing charges against defendant of open murder, M.C.L. § 750.316; MSA 28.548, and possession of a firearm during the commission of a felony (felony-firearm), M.C.L. § 750.227b; MSA 28.424(2). We reverse and remand for reinstatement of the charges. In Docket No. 194362, defendant appeals as of right his convictions of four counts of perjury committed in court, M.C.L. § 750.422; MSA 28.664, and resulting concurrent sentences of ten to fifteen years' imprisonment. We affirm.

I

Sometime during Sunday night, December 19, 1982, or early Monday morning, December 20, 1982, Nolan Fritz died in his home in Montmorency County. Fritz' body was discovered on December 21, 1982. The cause of death was determined to be multiple gunshots to the head by a .32 caliber gun. Defendant and Tom Fleck were suspected of being involved in the shooting, with Fleck being the suspected shooter. A Montmorency County circuit court judge directed that an inquiry (also known as a one-man grand jury) be made into the shooting, M.C.L. § 767.3; MSA 28.943, and defendant, but not Fleck, was summoned to testify as a witness. On January 26, 1983, defendant appeared before the judge and answered several preliminary questions before defendant's counsel asserted defendant's constitutional right against self-incrimination. The prosecutor moved in writing for an order granting defendant immunity and the judge entered an order to this effect. 1 MCL 767.6; MSA 28.946.

Defendant then testified that on the night of December 19, 1982, he was not with Fleck, but rather he was playing cards at the home of John Knight beginning at approximately 6:00 p.m. Defendant testified that present at Knight's home was defendant's wife, Knight, Knight's wife and children, and several neighbors. Defendant testified that he and his wife left the Knight residence after 1:00 a.m. and went home. Defendant testified that shortly thereafter he left home, went to a grocery store, bought beer, and then went to Fleck's home at approximately 2:00 a.m. Defendant testified that he and Fleck then drove to a number of locations, including stores, bars, restaurants, and houses, finally ending up at a bar in Rogers City at 8:00 a.m.

Defendant testified that he had known Fritz for approximately ten years and that he had delivered wood to Fritz. Defendant testified that he was not at Fritz' home on either the night of December 19, 1982, or the morning of December 20, 1982. Defendant denied being given a gun by Walter Crenshaw. Defendant also denied that he had owned a .32 caliber gun "on that particular day" or that he gave a .32 caliber gun to Fleck.

After the inquiry, the shooting remained unsolved. In July 1984, defendant moved from Michigan to South Carolina with his family. In approximately 1992, a Michigan State Police officer began reviewing the case. This officer subsequently contacted Fleck, who in 1994 finally implicated himself and defendant in the shooting. In August 1994, complaints were filed accusing defendant of open murder and felony-firearm and, in a separate case, of perjury committed in court. Warrants were issued for defendant's arrest Defendant moved to dismiss the murder and felony-firearm charges on the ground of immunity. The prosecutor responded that the immunity order was void or voidable if defendant either perjured himself or did not provide incriminating answers during the inquiry. The trial court determined that resolution of the immunity issue was premature because the perjury issue needed to be addressed first. The court therefore ordered that defendant's perjury case be tried first.

and he was finally returned to Michigan between late 1994 and early 1995.

Fleck was a primary witness against defendant at defendant's January 1996 perjury trial. Following is a summary, in relevant part, of Fleck's testimony. On December 19, 1982, defendant came over to Fleck's house between 5:00 p.m. and 7:00 p.m. The two of them visited and drank beer. Neither of them had any money, but defendant told Fleck that he, defendant, knew where they could get money to buy more beer because he had borrowed money at this place before. Defendant and Fleck left Fleck's house between 11:00 p.m. and 1:00 a.m. and defendant drove the two of them to an elderly man's house. Upon entering the house, Fleck immediately proceeded to the restroom. Fleck was in the restroom approximately two or three minutes and during this time he heard "two bangs." Upon leaving the restroom, Fleck observed defendant pointing a gun in Fleck's direction. The gun was an old, small, chrome-plated revolver. Fleck also observed the elderly man slumped in a chair, apparently dead. Defendant handed the gun to Fleck and told Fleck to shoot the elderly man, and Fleck did so. Defendant and Fleck then drove away from the elderly man's house and went to a number of locations, including stores, bars, restaurants, and houses. During this time, Fleck became aware that defendant had taken a wallet containing approximately $60 from the victim's house. They bought beer and food and burned the wallet alongside a road. Within a week or two after the shooting, Fleck observed defendant throw the gun from a bridge into a river.

In addition, Walter Crenshaw's wife testified at trial that sometime before the Fritz homicide she observed her husband either sell or give defendant a small, possibly silver-plated, rusty, old handgun. She testified that she did not know much about guns and that she did not actually touch this particular gun, but that she recalled that this gun did not look like it had a cylinder and that it was not a revolver. Another witness testified, after his recollection was refreshed, that before the Fritz homicide, defendant displayed to him a small pistol that he described as a "thirty-two."

Defendant was convicted of four counts of perjury committed in court for testifying falsely at the judicial inquiry about (1) his whereabouts on December 19 or 20, 1982, 2 (2) his companions on December 19, 1982 "and/or" December 20, 1982, 3 (3) his ownership or transfer of a .32 caliber gun, 4 and (4) his Defendant thereafter renewed his motion to dismiss the charges of murder and felony-firearm on the ground of immunity. The trial court granted this motion. It found that defendant had been granted absolute transactional immunity that could not be voided by perjured testimony. Although describing this result as a "travesty," the court noted that the only "remedy" available in such a case was a charge of perjury.

receipt of a [232 Mich.App. 81] gun from Walter Crenshaw. 5

II

We first turn to the prosecutor's appeal of the dismissal of the charges of murder and felony-firearm in Docket No. 194301. The issue we address here is simply whether testimony must be truthful in order to qualify for immunity from prosecution, i.e., whether a statutory requirement that one "answer" questions in a legal proceeding be construed as requiring that one answer such questions truthfully. In this case, defendant was granted immunity for his testimony at a one-man grand jury investigation pursuant to M.C.L. § 767.6; MSA 28.946, part of the Code of Criminal Procedure. The purpose of this act, as indicated by the title of the act as first enacted in 1917 PA 196, is "to authorize proceedings for the discovery of crime, and to provide penalties for a violation of such procedure." People v. Birch, 329 Mich. 38, 45, 44 N.W.2d 859 (1950). MCL 767.6; MSA 28.946 provides in relevant part as follows:

No witness shall upon such inquiry be required to answer any questions, or shall be convicted for contempt upon refusal to do so, when the answers might tend to incriminate him. A written order granting to such witness immunity from such incrimination may be entered by said judge pursuant to a written motion by the prosecuting attorney ..., which order shall set forth verbatim the questions which such witness refused to answer.... No person required to answer such questions shall thereafter be prosecuted for any offense concerning which such answers may have tended to incriminate him. [Emphasis added.]

The prosecutor contends that by perjuring himself at the inquiry, defendant forfeited his immunity from prosecution. 6

A fundamental right of a witness who fears that his testimony may incriminate him in a proceeding of any kind for which an oath is legally required, M.C.L. § 750.423; MSA 28.665, is the Fifth Amendment privilege against compulsory self-incrimination. U.S. Const., Am. V. A witness may invoke this exception to the government's power to compel testimony in a criminal, civil, administrative, or legislative proceeding and choose to remain silent. Kastigar v. United States, 406 U.S. 441, 444-445, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); People v. Cheatham, 453 Mich. 1, 10, n. 12, 551 N.W.2d 355 (1996). However, in order to facilitate the effective prosecution of crime, the practice of witness "immunity" has been developed as an accommodation between the government's power to compel testimony and the...

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