People v. Pena, 7
| Decision Date | 13 April 1970 |
| Docket Number | No. 7,7 |
| Citation | 175 N.W.2d 767,383 Mich. 402 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ramon PENA, Defendant-Appellant. |
| Court | Michigan Supreme Court |
George E. Thick, II, Pros.Atty., by H. Michael Dwan, Asst. Pros. Atty., Saginaw, for plaintiff-appellee.
George LaPlata, Detroit, for appellant.
Before the Entire, Bench.
Ramon Pena was convicted of selling narcotic drugs without a license 1 and sentenced to a prison term of 20 to 25 years.
Within ten days after the arraignment, defendant's counsel gave notice of intent to claim an alibi and listed as witnesses Manuala Garza, Irene Bustinza and Nickhol Pena. On April 9, 1964, six days before the case was set for trial, an assistant prosecuting attorney for Saginaw County wrote to each of the witnesses on official stationery the following letter:
'Dear Madam:
'In the interests of justice I am quoting Michigan Statutes Annotated 28.644, which provides as follows:
Any person who, being lawfully required to depose truth in any proceeding in a court of justice, shall commit perjury shall be guilty of a felony, punishable, if such perjury was committed on the trial of an indictment for a capital crime, by imprisonment in the state prison for life, or any term of years, and if committed in any other case, by imprisonment in the state prison for not more than fifteen (15) years.
Very truly yours,
G. E. Thick
Assistant Prosecuting Attorney'
Before the jury was impaneled, the defendant's counsel moved to dismiss the charges on the ground that the prosecutor's 'letter' violated the 14th Amendment of the United States Constitution by intentionally intimidating the defense witnesses.
After listening to argument on the motion the trial judge concluded:
'THE COURT: Well, let me just say that the court definitely does not approve of this procedure. It is the first time that I have ever seen this technique used. I did discuss the matter with the prosecutor yesterday and was informed that he knew not of this procedure.
I surely hope that this will be the last time that the procedure will be used.
I will at this time deny the motion, although I indicated that I do not approve of the procedure. I do not feel that this will prevent the defendant from having a fair and impartial trial in this case.
It is a matter which could be brought to the attention of the witness or any witnesses as they take the stand by the court, and, of course, as all witnesses are to understand that they are to tell the truth, the whole truth and nothing but the truth as they testify in this very serious matter.
The motion will be denied.'
We do not consider this adequate.
The impact of the prosecutor's official letter talking about life imprisonment to these poorly-educated Spanish-speaking people could scarcely be calculated to be anything but terrifying.
For the court to conclude that the defendant could have a fair trial without directly questioning the witnesses, without ascertaining the effect of the letter and without attempting to reassure them, if possible, is not acceptable.
The Constitutional right of a defendant to call witnesses in his defense 2 mandates that they must be called without intimidation. The manner of testifying is often more persuasive than the testimony itself.
A prosecutor may impeach a witness in court but he may not intimidate him--in or out of court.
As the trial court recognized, this 'procedure' is indefensible. Because we are convinced that the court alone might have corrected the prosecutor's actions, but did not, we must set aside the conviction.
Upon retrial the court's efforts to undo the damage should appear of record.
Reversed and remanded.
Before the Entire Bench.
I would remand to the trial court for a determination by that court as to whether or not the prosecutor's letter did intimidate the witnesses. If the court finds it did, the court should grant a new trial and the court's efforts to undo the damage upon such retrial should appear of record. If the court finds that no intimidation took place, the court should so find, stating its reasons for the finding, and a new trial should be denied.
I vote to remand for a hearing as proposed above.
The opinion of Mr. Justice Thomas Giles Kavanagh in this case neglects to include in its statement of facts that of the three persons listed as witnesses by the defendant in his notice of intent to claim an alibi, two of them were called by defendant as witnesses, at trial, that both...
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People v. Harrison
...v. Utter, 217 Mich. 74, 185 N.W. 830 (1921); People v. Pena, 3 Mich.App. 26, 141 N.W.2d 677 (1966), reversed on other grounds, 383 Mich. 402, 175 N.W.2d 767 (1970). Names of witnesses cannot be endorsed at time of trial where their existence and identify were known earlier, the delay is not......
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People v. Layher
...not intimidate witnesses in or out of court. People v. Clark, 172 Mich.App. 407, 409, 432 N.W.2d 726 (1988), citing People v. Pena, 383 Mich. 402, 406, 175 N.W.2d 767 (1970), and People v. Crabtree, 87 Mich.App. 722, 725, 276 N.W.2d 478 (1979). However, a prosecutor may inform a witness tha......
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People v. Dyer
...made such a comment prior to the court's action, it may have constituted intimidation of a witness requiring reversal. People v. Pena, 383 Mich. 402; 175 N.W.2d 767 (1970).The proper procedure is for the prosecutor to inform the court, out of the presence of the witness, of the possible nee......
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State v. Wiegers
...by the state's interference with his Sixth Amendment right to compulsory process as established in Washington. In People v. Pena, 383 Mich. 402, 175 N.W.2d 767 (1970), the prosecuting attorney sent a letter written on official stationery to defendant's alibi witnesses, informing them of ele......