People v. Mobley

• Citation: 199 N.W.2d 280,40 Mich.App. 551
• Decision Date: 24 May 1972
• Docket Number: Docket No. 9293,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phillip MOBLEY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 280

199 N.W.2d 280

40 Mich.App. 551

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phillip MOBLEY, Defendant-Appellant.

Docket No. 9293.

Court of Appeals of Michigan, Division No. 2.

May 24, 1972.

Released for Publication July 27, 1972.

Leave to Appeal Granted Sept. 7, 1972.

Carl L. Bekofske, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and V. J. BRENNAN and O'HARA, ^* JJ.

BRONSON, Presiding Judge.

Defendant was convicted of rape, M.C.L.A. § 750.520; M.S.A. § 28.788, and kidnapping, M.C.L.A. § 750.349; M.S.A. § 28.581, following a three-day jury trial in the Genesee County Circuit Court. He was sentenced to concurrent terms of 15 to 20 years on the former and 20 to 25 years on the latter crime. This appeal is taken as of right.

Four issues are raised by defendant on appeal. They are: (1) Was defendant denied his constitutional right to confrontation when his accomplices were allowed to raise their privileges against self-incrimination in response to questions relating to the kidnapping charge and by the trial judge's limitation of defendant's cross-examination of the police officer who conducted defendant's lineup; (2) did the prosecution use a statement made by defendant during his custodial interrogation without first showing that he had been advised of his Miranda rights; (3) was it error for the trial judge not to instruct the jury that an independently significant asportation is needed to constitute kidnapping; and (4) was the trial judge's instruction on 'reasonable doubt' erroneous. The facts are as follows. On the night of August 2, 1969, in the City of Flint, the victim, 14-year-old Pamela H, left her sister's apartment with a companion and proceeded by foot toward the companion's husband's apartment. As they were walking down Lewis Street toward Kearsley, Miss H noticed that they were being followed by two males. Before she could get to safety at the nearest house, the two men grabbed and dragged her away. She was held by one while the other went to get their car. Miss H was then pushed into the car and driven to a wooded area where she was raped by each of her assailants. During this drive she was forced to lie in the back seat. After she had been raped, the two men drove to a house where a third man, identified as the defendant, was picked up. As he was getting into the car, Miss H tried to escape but was forcibly restrained by one of her original assailants. The third man allegedly got in the front seat, subsequently moved to the back and raped the complainant. During this time, the car was driven in an aimless manner through Flint. Miss H was thrown out of the car about one-half hour after the defendant was picked up and two and one-half to three hours after she was originally abducted.

Defendant first contends that he was denied his constitutional right to confrontation when the trial judge allowed two witnesses who participated in the crimes charged to invoke their privileges against self-incrimination in response to defense counsel's questions concerning matters related to the kidnapping charges which were still outstanding against them. The two witnesses, Vincent Pounds and Carl Ellison, are the men who originally assaulted Miss H. Prior to defendant's trial, both men pled guilty to statutory rape, M.C.L.A. § 750.520; M.S.A. § 28.788. ¹ On direct examination, Vincent Pounds testified to the incidents which occurred on the night in question but denied knowledge of defendant's actually raping Miss H. His testimony corroborated that of the victim. On cross-examination, Pounds refused to answer defense counsel's question concerning a possible deal between his attorney and the prosecutor to drop the kidnapping charge against him. He later denied that a deal had been made concerning his sentencing.

Carl Ellison's testimony on direct examination was similar to Pounds'. The only difference in his testimony was that the defendant did rape Miss H. On cross-examination, Ellison refused to answer several questions dealing with the manner in which Miss H entered the car.

The prosecutor points to the fact that both witnesses only claimed the privilege a few times and only in relation to a completely separate crime. He further contends that the cases cited by defendant are distinguishable. People v. Robinson, 306 Mich. 167, 10 N.W.2d 817 (1943); People v. Roxborough, 307 Mich. 575, 12 N.W.2d 466 (1943); People v. Bortnik, 28 Mich.App. 198, 184 N.W.2d 275 (1970). We agree with this latter contention. In each of these cases the accomplice was either subpoenaed to take the stand or on the stand at defendant's request. Under these circumstances, the witnesses were not testifying of their own free will and their privileges were upheld.

In the instant case, Pounds and Ellison took the stand of their own accord for the prosecution. They testified as to their involvement with defendant in the crimes charged. The fact that each raised the privilege only a few times is of no importance. See, E.g., Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951).

The question which concerns us is what did the witnesses raise the privilege in relation to? Had the criminal charge which Pounds and Ellison sought to protect themselves against been unrelated to the transaction giving rise to the charges against the defendant, we would agree with the prosecutor. Pitcher v. People, 16 Mich. 142 (1867). That is not the case here. Defendant was charged with rape and kidnapping. These charges arose out of a single transaction. Both witnesses admitted their involvement with the defendant. The real issue before this Court is: May an accomplice who voluntarily takes the stand raise his privilege against self-incrimination after he has admitted his involvement in the criminal transaction for which defendant is on trial where the witness is still subject to a criminal charge arising out of that transaction? Our answer must be no.

The rationale for our holding was well stated in People v. Koukol, 262 Mich. 529, 247 N.W. 738 (1933). The facts in that case are similar to those in the instant case. The Supreme Court held that the accomplice waived his privilege by taking the stand and testifying for the people. 262 Mich. at 536, 247 N.W. 738. The Court quoted from Foster v. People, 18 Mich. 266, 273--277 (1869):

'It would certainly lead to most startling results if an accomplice, who has made out a clear showing of a prisoner's guilt, and has, in doing so, criminated himself to an equal degree, could refuse to have his veracity, or fairness, or bias, or corruption, tested by a cross-examination, and yet be allowed to stand before court and jury on the same footing with any other witness who has been perfectly candid, but who may have been convicted of a similar felony. It is perfectly evident that where a witness who has undertaken to give a full account of a transaction, and has not spared himself from conclusive accusation, then turns round and refuses to answer further, his motive must be something more than to save himself from the criminal exposure, and it is of great importance to learn why such a course is adopted. If, in those cases where cross-examination is most desirable, to test the credit of a man who is seeking to save his own liberty, by swearing away that of another, it can be completely prevented at the option of the witness himself, it would be difficult to justify the rule which allows codefendants to be used by the prosecution at all, when they cannot be received for the defense. I cannot conceive that the law will tolerate such a state of things. When a man has voluntarily admitted his guilt, he has done all that he can to criminate himself, and his protection from further disclosure on the same subject is no protection whatever, because it cannot undo what makes the whole mischief. * * *

'The law does not endeavor to preserve any vain privileges, and such a privilege as would allow a witness to answer a principal criminating question, and refuse to answer as to its incidents, would be worse than vain; for, while it could not help the witness, it must inevitably injure the party, who is thus deprived of the power of cross-examination to test the credibility of a person who may, by avoiding it, indulge his vindictiveness or corrupt passions with impunity. * * *

'When accomplices are allowed to testify for the purpose of furnishing evidence against a prisoner, they not only know that they are expected to criminate themselves, but they do it with the prospect of an advantage, which, if not absolutely promised, is substantially pledged to them, if they make full disclosures. If they see fit to furnish criminating proof, there is every reason to compel them to submit to the fullest and most searching inquiry. They expressly waive their privilege by giving such proof, for they could not be sworn at all without their consent, while under a joint indictment; and, if not indicted, they could still refuse to furnish evidence of joint misconduct. But there is neither reason nor show of authority which can, in any case, allow to them any privilege whatever, when they have gone so far already, as to any matters in which they and the prisoner on trial have been connected. * * *'

Foster, Supra, has been cited with approval by the United States Supreme Court. Rogers v. United States, Supra. See, also, Alderman v. People, 4 Mich. 414 (1857).

In the instant case both witnesses placed themselves at the 'scene' of the crime and admitted their involvement with the defendant. By doing so they effectively waived their privileges against self-incrimination. A witness may not admit participation in a crime and then invoke the privilege to prevent defendant from challenging his testimony. People v. Esse, 8 Mich.App. 362, ...