People v. Mobley

• Decision Date: 18 September 1973
• Docket Number: No. 12,12
• Citation: 210 N.W.2d 327,390 Mich. 57
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Philip MOBLEY, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 327

210 N.W.2d 327

390 Mich. 57

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

No. 12.

Supreme Court of Michigan.

Sept. 18, 1973.

Robert F. Leonard, Pros. Atty., Genesee County, Flint, by Donald A. Kuebler, Chief Appellate Div., Saginaw, Joel B. Saxe, Asst. Pros. Atty., for the People.

Bekofske, Donnellan & Hanflik, by Carl L. Bekofske, Flint, for defendant-appellant.

Before the Entire Bench.

COLEMAN, Justice.

On August 2, 1969 Carl Ellison and Vincent Pounds accosted a fourteen year old girl, forced her into an automobile, drove to a secluded spot and raped her. Subsequently they went to defendant's house. Mobley entered the car and allegedly raped the girl.

Prior to defendant's trial, Ellison and Pounds pled guilty to a charge of statutory rape, although charges of kidnapping were left pending. At defendant's trial the codefendants testified against him. On the day defendant was convicted of both kidnapping and rape, an order of Nolle prosequi was entered as to the kidnapping charges against Ellison and Pounds.

On February 18, 1970 defendant received concurrent sentences of 15 to 25 years for rape and 20 to 25 for kidnapping. On the same date Ellison and Pounds were sentenced to terms of 15 to 25 years for the rape. Defendant has been in prison while this appeal was being processed.

At trial, the victim positively identified defendant as the third man who raped her. On cross-examination it was shown that at a preliminary examination, she had identified defendant as one of the two men who originally abducted her. Taken as a whole, her testimony was at times contradictory and confused.

When the codefendants testified, they were permitted to have their counsel sit or stand close to the witness stand. Vincent Pounds, on direct examination, identified defendant and said he entered the back seat of the car. Pounds was unable to say defendant raped the victim because he was driving. Just prior to his testimony, the following conversation occurred:

'THE COURT: No, I think before we begin, I'll make a comment.

Mr. Pounds, I have provided you with your counsel, Mr. Crites, who is present in court, and now, if at any time, you feel that you want to privately discuss any matter in question or any questions that are presented with your counsel, I'll permit you to do it.

I want to inform you that you have a constitutional right against self-incrimination; and, I'm certain that your attorney has discussed this matter with you, hasn't he?

'THE WITNESS: Yes.

'THE COURT: Very Good.

And, Mr. Crites, you, of course, are in a position at any time that you would like to discuss this matter privately with your client, you may do so.

'MR. CRITES: Thank you, your Honor.

'THE COURT: Very good. Do you understand?

'THE WITNESS: Yes.'

During cross-examination, the court permitted the witness to leave the stand and confer with his lawyer. The following exchange between defense counsel, Pounds and the judge occurred:

'Q. And, has anyone ever told you, your lawyer, or anyone else, that you pled guilty to Rape and Kidnapping--if you pled guilty to Rape, that the Kidnapping charge would be dropped?

'A. I refuse to answer that.

'MR. GROSSMAN: (Defendant's counsel) Your Honor, I believe that the witness has to answer that question after he takes the stand.

'THE COURT: No, he doesn't give up his constitutional right because he takes the stand.

And, I informed the witness at this time that he is not required to answer any question that may have a tendency to incriminate him.

Those constitutional guarantees are for him, as well as all other defendants.

'MR. GROSSMAN: I believe that this is one total incident, and not two separate incidents.

'MR. CRITES: (Witness' counsel) Let me say that I have no objection to him answering that question.

'THE COURT: Well, you want to speak to your client.

'THE WITNESS: Well, will you repeat it?

BY MR. GROSSMAN:

'Q. Did your lawyer tell you that if you pled guilty to the charge of Rape that the Kidnapping charge against you would be dropped?

'A. I still refuse to answer that.'

When Carl Ellison took the stand, the Court asked him if he had been informed of his privilege against self-incrimination. Ellison stated on direct that defendant had intercourse with the victim while the witness was in the back seat.

On cross-examination this witness was also permitted to leave the stand and talk with his attorney. On subsequent examination this exchange occurred:

'Q. What would you say you did to get her in--get her from the street into your car?

'A. I refuse to answer that.

'MR. GROSSMAN: Your Honor, I believe that the witness has testified how he followed the girls, and he testified to these actions, and I have a right to question him further.

'THE COURT: No, I don't believe there has been a waiver of his constitutional rights, and I assume that what the witness is saying, after speaking to his attorney, is that he is availing himself of his right against self-incrimination.

May I indicate, Mr. Ellison, if you feel that the question has a tendency to incriminate you, that you may reply that you refuse to answer, that you believe that the answer may incriminate you, and then I'll make a decision as to whether or not it does have a tendency to incriminate you.'

Ellison's lawyer was permitted on several occasions to interrupt the questioning and confer with his client.

In his opinion on appeal, Judge Bronson said:

'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.' 40 Mich.App. 551, 557, 199 N.W.2d 280, 282 (1972)

However, he went on to declare the error to be harmless. In their concurrence, Judges O'Hara and Brennan said there was sufficient testimony to show defendant guilty 'beyond any reasonable doubt.' As to any procedural errors they saw 'no suggestion of a miscarriage of justice.' (p. 566, 199 N.W.2d p. 286.)

Although many errors are claimed by defendant, and at least one other with possible merit, the focus of this opinion is on the issues of confrontation and harmless error. Defendant claims the trial judge unduly restricted the scope of cross-examination and erroneously permitted witnesses to invoke the privilege against self-incrimination.

The issue of confrontation requires an analysis of two constitutional provisions. Art. 1, § 20 of the Mich.Const. of 1963 sets forth in part that 'in every criminal prosecution the accused shall have the right . . . to be confronted with the witnesses against him. . . .' Also see the U.S.Const., Am. VI. Const.1963, art. 1, § 17 provides in part that 'No person shall be compelled in any criminal case to be a witness against himself. . . .' Also see the U.S.Const., Am. V.

A review of the cases conclusively demonstrates that once a codefendant voluntarily testifies against another, he may not, on cross-examination, claim the protection provided by art. 1, § 17.

In People v. Henderson, 382 Mich. 582, 171 N.W.2d 436 (1969) defendant was convicted in a trial where a prosecution witness' attorney was permitted to make objections to questions put on cross-examination. This Court said that this was a denial of due process of law because the activity was 'so inconsistent with our adversary system.' The Court agreed that a witness has the right to the assistance of counsel but said at p. 587, 171 N.W.2d at p. 439:

'If the client chooses to testify in the other defendant's case, then his constitutional right to the assistance of counsel consists only in being afforded the advice of counsel with respect to his testimony. That advice must be given only at such times and in such manner as does not deprive the actual defendant in those proceedings of his right to a fair, impartial, and adversary trial.'

People v. Robinson, 306 Mich. 167, 10 N.W.2d 817 (1943) was one of the many cases 'arising out of official corruption, gambling and the administration of justice in Wayne County' during the 1930's. Defendant was convicted of conspiring to obstruct justice. One question on appeal was whether a coconspirator, testifying for the prosecution, could invoke his privilege against self-incrimination after partially testifying.

The Court, in answering yes to the question, emphasized that the witnesses were coconspirators not codefendants. If the reverse had been true, the result would have been different as reflected in this passage from p. 176, 10 N.W.2d p. 820:

'Had Brouillet and Farrish been codefendants with Robinson and voluntarily elected to testify in the trial, they could not have been granted immunity from answering questions that might incriminate them. One who is on trial for a crime cannot be compelled to testify, either on his own behalf or for the people. However, if he elects to do so, he is held to have waived his constitutional right of refusing to answer any question material to the case, even though the answer tends to prove him guilty of some other crime than that for which he is on trial. People v. Dupounce, 133 Mich. 1, 94 N.W. 388, 103 Am.St.Rep. 435, 2 Ann.Cas. 246; People v. Gray, 135 Mich. 542, 98 N.W. 261; People v. Koukol, 262 Mich. 529, 247 N.W. 738, 87 A.L.R. 878.'

A similar result was reached in People v. Roxborough, 307 Mich. 575, 12 N.W.2d 466 (1943).

In People v. Koukol, 262 Mich. 529, 247 N.W. 738 (1933) defendant was indicted with three others on a charge of embezzlement. The three subsequently testified for the prosecution. During...