People v. Parsons

• Decision Date: 15 August 1985
• Docket Number: Docket No. 76081
• Citation: 371 N.W.2d 440,142 Mich.App. 751
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Bradley PARSONS, Defendant-Appellee, and Arthur R. Reibel, Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 440

371 N.W.2d 440

142 Mich.App. 751

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Bradley PARSONS, Defendant-Appellee and Arthur R. Reibel, Defendant.

Docket No. 76081.

Court of Appeals of Michigan.

Submitted Oct. 10, 1984.

Decided May 8, 1985.

Released for Publication Aug. 15, 1985.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and E. David Brockman, Asst. Atty. Gen., for the people.

Scodeller, Wilson, DeLuca & Vogel by Robert C. Vogel, Lansing, for defendant-appellee.

Before DANHOF, C.J., and GRIBBS and SHUSTER ^*, JJ.

PER CURIAM.

TYPE OF CASE

Defendant successfully argued to the courts below that he was entitled to immunity from prosecution because he had been ordered under threat of prosecution to give a statement. The attorney general, on behalf of the prosecution, appeals by leave granted, arguing that defendant was not required to give the statement and therefore is not entitled to transactional immunity.

APPLICABLE LAW

M.C.L. Sec. 205.3; M.S.A. Sec. 7.657(3).

ISSUE AND DECISION

Is a person entitled to immunity from prosecution under M.C.L. Sec. 205.3; M.S.A. Sec. 7.657(3) because the person felt compelled to make a statement although there was no court order or subpoena requiring him to do so?

In this case, where defendant had not been subpoenaed, never refused to testify, and never invoked his privilege against self-incrimination, defendant was not entitled to immunity from prosecution under the statute.

FACTS

This criminal action resulted from an investigation by the Special Investigation Division of the Michigan Department of Treasury concerning compliance with state tax laws by the Castle Farms Music Theatre. As part of the investigation, a search warrant was issued on August 28, 1980, and executed at the premises of Castle Farms and the residence of defendant-appellee's codefendant, Arthur Reibel. David Nummer, an investigator with the Michigan Department of Treasury, participated in the execution of the warrant and met defendant at that time. Defendant testified that he was subsequently contacted by telephone by either Nummer or Paul Bricker, an assistant attorney general, and was informed that if he did not agree to cooperate in the investigation he would be criminally prosecuted.

On September 2, 1980, defendant was interviewed by Bricker and Nummer. Before questioning commenced, defendant talked with his attorney. He was also given his Miranda ¹ warnings. He was again told that if he did not answer the questions he could be criminally prosecuted. The present criminal proceedings were subsequently commenced against defendants, charging them with tax evasion under M.C.L. Sec. 208.101; M.S.A. Sec. 7.558(101).

At the preliminary examination for both defendants, a Walker ² hearing was held on defendant's motion to suppress the statement he gave to Nummer and Bricker. The district court suppressed the statement, finding it was coerced and therefore involuntarily given. The district court then proceeded to dismiss the charges against both defendants on the basis that the statute barred prosecution because defendant was "ordered" to give the statement, within the meaning of the statute. The Charlevoix County Circuit Court affirmed the dismissal of the charges against defendant, but reversed the district court's dismissal of charges as to codefendant Reibel. The propriety of the court's actions concerning Reibel is not before this Court at this time.

DISCUSSION

The statute at issue in this case, M.C.L. Sec. 205.3(a); M.S.A. Sec. 7.657(3)(a), enumerates the powers and duties of the commissioner of revenue. It authorizes the commissioner or any of the commissioner's agents to examine a taxpayer's books, records, and papers. The commissioner or agents "may issue a subpoena requiring a person to appear and be examined" concerning tax matters, may administer oaths to witnesses, and may invoke the aid of the circuit court in conducting its inquiry. The statute provides that the circuit court "in case of contumacy or refusal to obey a subpoena, may issue an order requiring the person to appear before the department," with failure to obey the court order resulting in contempt. Finally, the statute specifies:

"No person shall be excused from testifying or from producing any books, papers, records, or memoranda in any investigation, or upon any hearing when ordered to do so by the commissioner, upon the ground that the testimony or evidence, documentary or otherwise, may tend to incriminate or subject him to a criminal penalty; but no person shall be prosecuted or subjected to any criminal penalty for or on account of any transaction made or thing concerning which he may testify or produce evidence, documentary or otherwise, before the board or its agent." M.C.L. Sec. 205.3(a); M.S.A. Sec. 7.657(3)(a). (Emphasis added.)

Thus, when the commissioner orders a person to testify, the person may not refuse to testify on the grounds that the testimony would tend to incriminate him, but the person cannot be prosecuted based on his testimony. The issue in this case is whether defendant Parsons was "ordered" to testify within the meaning of the statute so as to make him immune from prosecution.

When the meaning of statutory language is questioned, a reasonable construction must be given by looking to the purpose subserved thereby, Frost-Pack Distributing Co v. Grand Rapids, 399 Mich. 664, 682-683, 252 N.W.2d 747 (1977), and the meaning must be derived from the statutory context within which the language is used. CAF Investment Co v. State Tax Comm, 392 Mich. 442, 454, 221 N.W.2d 588 (1974). A transactional immunity provision which requires a person to give testimony, but prohibits prosecuting that person for crimes which relate to the testimony given, must be at least as broad as the constitutional protection against self-incrimination for which it is a substitute. In re Colacasides, 379 Mich. 69, 84, 150 N.W.2d 1 (1967); In re Watson, 293 Mich. 263, 276, 291 N.W. 652 (1940). Thus, it would be reasonable to construe the statute as preserving a person's state and federal constitutional privileges against self-incrimination, but at the same time allowing the commissioner to gather testimony and information to carry out his duty to enforce the tax laws.

The self-incrimination prohibition in the constitution provides: "No person shall be compelled in any criminal case to be a witness against himself * * *." Const.1963, art. 1, Sec. 17. The constitutional protection is triggered when a person is "compelled" to testify; the statutory immunity provision which substitutes for the constitutional protection is triggered when a person is "ordered" to testify. We question whether the Legislature intended to extend the benefits of transactional immunity to a person who may have answered questions involuntarily under threat of prosecution, but who was never formally ordered to answer the questions as by a subpoena or court order.

The statutory provision under scrutiny in this case empowers the commissioner to issue a subpoena. That is the only type of "order" the commissioner is authorized to give. It also authorizes the commissioner or agents to enlist the aid of the circuit court, which may issue an "order". One of the grounds on which the circuit court may issue an order is refusal to obey a subpoena. The statute does not use the word "order" in connection with the commissioner or agents, only with the circuit court--until, in the penultimate sentence, it specifies that a person may not be excused from testifying "when ordered to do so by the commissioner". Since the only order the commissioner is directly authorized to give is a subpoena, we must conclude that this is what the statute is referring to. As the circuit court may also issue an order at the commissioner's request, the phrase could logically be extended to cover court orders as well. But as the statute does not mention other situations in which the commissioner may order a person to testify, we have no grounds for extending the transactional immunity provision to such situations.

Of the many other Michigan statutes offering immunity in exchange for incriminating testimony, many specify that immunity is available only to a witness who has been subpoenaed: oil and gas conservation, M.C.L. Sec. 319.9; M.S.A. Sec. 13.139(9); railroad commission, M.C.L. Sec. 462.27; M.S.A. Sec. 22.46; bribery, M.C.L. Sec. 750.125; M.S.A. Sec. 28.320; trusts and monopolies, M.C.L. Sec. 750.560; M.S.A. Sec. 28.828; cigarette tax, M.C.L. Sec. 205.517; M.S.A. Sec. 7.411(17); antitrust, M.C.L. Sec. 600.2155; M.S.A. Sec. 27A.2155; supplementary proceedings, M.C.L. Sec. 600.6110; M.S.A. Sec. 27A.6110. Statutes in the penal code refer to a witness "required" to testify: conspiracy M.C.L. Sec. 750.157; M.S.A. Sec. 28.354; incest, M.C.L. Sec. 750.334; M.S.A. Sec. 28.566; prize fighting, M.C.L. Sec. 750.446; M.S.A. Sec. 28.701; prostitution, M.C.L. Sec. 750.453; M.S.A. Sec. 28.708. The statute authorizing discovery of corporate assets applies to testimony compelled at "the direction of the court", M.C.L. Sec. 600.3630; M.S.A. Sec. 27A.3630. The immunity provision in the Insurance Code is triggered when the person asks to be excused from testifying and is then "directed" to testify. M.C.L. Sec. 500.2033; M.S.A. Sec. 24.12033.

The uniform securities act immunity provision reads much like the statute at issue in this case, except that immunity from prosecution is granted only after the witness has claimed his privilege against self-incrimination. M.C.L. Sec. 451.807; M.S.A. Sec. 19.776(407). The code of criminal procedure provision grants immunity only per a written order entered by the judge pursuant to a written motion by the prosecutor, setting forth verbatim the questions the witness has refused to answer. M.C.L. Sec. 767.6; M.S.A. Sec. 28.946. This statute, like the federal witness immunity statute, leaves no room to argue about whether...