People v. Rohn

• Decision Date: 18 July 1980
• Docket Number: Docket No. 78-3873
• Citation: 296 N.W.2d 315,98 Mich.App. 593
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarice ROHN, Defendant-Appellant. 98 Mich.App. 593, 296 N.W.2d 315
• Court: Court of Appeal of Michigan — District of US

Page 315

296 N.W.2d 315

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarice ROHN, Defendant-Appellant.

Docket No. 78-3873.

98 Mich.App. 593, 296 N.W.2d 315

Court of Appeals of Michigan.

July 18, 1980.

Released for Publication Sept. 24, 1980.

[98 MICHAPP 595] James R. Neuhard, State Appellate Defender, Richard B. Ginsberg, Asst. State Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter E. Deegan, Pros. Atty., Peter R. George, Asst. Pros. Atty., for plaintiff-appellee.

[98 MICHAPP 596] Before BASHARA, P. J., and RILEY and QUINNELL, ^* JJ.

RILEY, Judge.

Defendant was originally charged with aiding and abetting first-degree murder, M.C.L. § 767.39; M.S.A. § 28.979, M.C.L. § 750.157a; M.S.A. § 28.354(1), and conspiring to commit first-degree murder, M.C.L. § 750.157a; M.S.A. § 28.354(1), M.C.L. § 750.316; M.S.A. § 28.548. Following a 1975 jury trial wherein it was alleged that the defendant had arranged to have her husband killed, she was found guilty and sentenced to life imprisonment on both counts. This Court reversed and remanded, and defendant was retried on both counts, commencing February 27, 1978. She again was found guilty and sentenced to two concurrent life imprisonment terms. Defendant now appeals as of right.

Defendant asserts a plethora of errors, many of which necessitate reversal and remand for new trial. The first of these is with respect to the prosecutor's closing argument relating to the jurors' religious duties.

Prosecutors are accorded great latitude regarding their arguments and conduct. See People v. Duncan, 402 Mich. 1, 260 N.W.2d 58 (1977). However, it is paramount that prosecutors pursue any lawsuit with as equal a concern for ensuring a defendant a fair trial as for convicting him. People v. Florinchi, 84 Mich.App. 128, 135, 269 N.W.2d 500 (1978). A defendant's opportunity for a fair trial may be jeopardized when the prosecution interjects issues broader than the guilt or innocence of the accused. People v. Bryan, 92 Mich.App. 208, 221, 284 N.W.2d 765 (1979). This is particularly true when the prosecutor appeals to a jury's civic [98 MICHAPP 597] duty, People v. Biondo, 76 Mich.App. 155, 256 N.W.2d 60 (1977); People v. Meir, 67 Mich.App. 534, 241 N.W.2d 280 (1976); People v. Williams, 65 Mich.App. 753, 238 N.W.2d 186 (1975); People v. Farrar, 36 Mich.App. 294, 193 N.W.2d 363 (1971), or when extraneous racial, religious or ethnic matters are introduced at trial. See M.C.L. § 600.1436; M.S.A. § 27A.1436, People v. Bouchee, 400 Mich. 253, 253 N.W.2d 626 (1977); People v. Hill, 258 Mich. 79, 241 N.W. 873 (1932); People v. Jones, 82 Mich.App. 510, 267 N.W.2d 433 (1978). See also George v. Travelers Indemnity Co., 81 Mich.App. 106, 114-115, 265 N.W.2d 59 (1978).

In the instant case, a hybrid reversible error occurred. In closing argument, the prosecutor appealed to the jury's religious duties in calling for defendant's conviction. ¹ This was not a case where [98 MICHAPP 598] the prosecutor merely used improper argument in response to that of the defense, Meir, supra, 67 Mich.App. 537, 241 N.W.2d 280, but was a proscribed example of inflaming the jury's passions and fears. Although no curative instruction was requested by the defendant, an objection and a motion for mistrial were made below. In light of the highly prejudicial nature of the prosecutor's statement, we believe defendant's actions adequately preserved this issue for our review.

Reversal is also mandated based on the court's withholding of the presentence reports of three prosecution witnesses, all accomplices in defendant's husband's murder. Prior to trial defendant had sought access (for impeachment purposes) to those portions of the reports that related to the [98 MICHAPP 599] accomplices' versions of the murder. The lower court refused.

M.C.L. § 791.229; M.S.A. § 28.2299 provides:

"All records and reports of investigations made by a probation officer, and all case histories of probationer shall be privileged or confidential communications not open to public inspection. Judges and probation officers shall have access to the records, reports, and case histories. The probation officer, the assistant director of probation, or the assistant director's representative, shall permit the attorney general, the auditor general, and law enforcement agencies to have access to the records, reports, and case histories. The relation of confidence between the probation officer and probationer or defendant under investigation shall remain inviolate."

This statute, preserving the confidentiality of presentence reports, may directly conflict with the equally protected rights of confrontation and impeachment through prior inconsistent statements. See U.S.Const.Am. VI, People v. Hallaway, 389 Mich. 265, 267, 205 N.W.2d 451 (1973). Where there is such a conflict, we believe that confidentiality must give way to other stronger interests. Compare In Matter of Baby X, 97 Mich.App. 111, 293 N.W.2d 736 (1980).

In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Supreme Court held that the Sixth Amendment right of confrontation requires that a defendant be allowed to impeach a prosecution witness by cross-examination aimed at disclosing bias due to that witness's probationary status as a juvenile delinquent. The Court further held that this should be permissible even though such impeachment conflicts with Alaska's asserted interest in preserving the confidentiality of juvenile[98 MICHAPP 600] delinquency adjudications. As stated by the Court:

"The State's policy interest in protecting the confidentiality of a juvenile offender's record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness. The State could have protected Green from exposure of his juvenile adjudication in these circumstances by refraining from using him to make out its case; the State cannot, consistent with the right of confrontation, require the petitioner to bear the full burden of vindicating the State's interest in the secrecy of juvenile criminal records." Id. at 320, 94 S.Ct. at 1112.

We believe that this reasoning is applicable to the instant case as well. Although the defendants' interests differ, the Davis defendant sought to impeach to show a witness's bias while Rohn wants to impeach to attack the credibility of incriminating information, we agree that the latter impeachment is as equally necessary as the former. It is critically important that any finding of guilt or any sentence be predicated on accurate information. See People v. Malkowski, 385 Mich. 244, 249, 188 N.W.2d 559 (1971). Thus, we must conclude that the need for impeachment of criminal accusations outweighs any need for confidentiality of presentence reports. This does not mean that defendants should receive wholesale access to the confidential records of others. We hold only that when records of prior inconsistent statements of witnesses are necessary for effective cross-examination, they should be made available to the defendant. An in camera inspection procedure should be utilized by the court to limit disclosure to those statements materially inconsistent with the witness's testimony.

The trial court also erred in allowing the prosecution[98 MICHAPP 601] to impeach its own witness, the alleged coconspirator, Frogge. It is well settled that in the absence of surprise, accomplices may not be impeached by the prosecution. People v. White, 401 Mich. 482, 508-509, 257 N.W.2d 912 (1977). Since the prosecution has not alleged any surprise and since the impeachment cannot fairly be characterized as refreshment, reversal is mandated. See People v. Brassell, 64 Mich.App. 445, 449, 236 N.W.2d 99 (1975).

Defendant further alleges that the trial court reversibly erred by allowing testimony regarding an alleged similar act by defendant, specifically, an earlier request to have her husband killed. We agree.

Evidence of similar acts may only be admitted under certain, limited circumstances.

"In any criminal case where the defendant's motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant." M.C.L. § 768.27; M.S.A. § 28.1050.

Prior to admission, it must be proved that (1) there is substantial evidence to show that defendant committed the bad act, (2) the act must tend to prove one of the statutory purposes, (3) one of those purposes must be "in issue" and (4) the probative value of admission must outweigh any prejudicial effect. People v. Smith, 87 Mich.App. 18, 22, 273 N.W.2d 573 (1978). We believe that [98 MICHAPP 602] evidence of the alleged prior act was not relevant to any statutory purpose and was highly prejudicial; thus, admission was error. See People v. Major, 407 Mich. 394, 400-401, 285 N.W.2d 660 (1979); People v. Minney, 155 Mich. 534, 538-539, 119 N.W. 918 (1909).

The lower court also reversibly erred by preventing defendant from cross- examining a witness about an alleged deal with the prosecutor. See Davis, supra 415 U.S. at 316-318, 94 S.Ct. at 1110-1111; People v. Reed, 393 Mich. 342, 351-354, 224 N.W.2d 867 (1975).

Finally, reversal is necessary because the trial court failed to give a requested instruction on the lesser offense of accessory after the fact. Since evidence was adduced which could have supported this crime, an instruction on accessory after the fact should have been given. People v. Jones, 395 Mich. 379, 390, 236...