People v. Smith, Docket No. 148305.

• Citation: 870 N.W.2d 299,498 Mich. 466
• Decision Date: 30 July 2015
• Docket Number: Docket No. 148305.,Calendar No. 3.
• Parties: PEOPLE v. SMITH.
• Court: Supreme Court of Michigan

498 Mich. 466

870 N.W.2d 299

PEOPLE

v.SMITH.

Docket No. 148305.

Calendar No. 3.

Supreme Court of Michigan.

Argued Jan. 13, 2015.

Decided July 30, 2015.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, David S. Leyton, Prosecuting Attorney, and Michael A. Tesner, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Valerie R. Newman, Detroit and Katherine L. Marcuz) for defendant.

Opinion

McCORMACK, J.

In this case, we consider whether the prosecution breached a duty to correct the substantially misleading, if not false, testimony of a key witness about his formal and compensated cooperation in the government's investigation. Given the overall weakness of the evidence against the defendant and the significance of the witness's testimony, we conclude that there is a reasonable probability that the prosecution's exploitation of the substantially misleading testimony affected the verdict. See Napue v. Illinois, 360 U.S. 264, 271–272, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). We therefore reverse the judgment of the Court of Appeals in part, vacate the defendant's convictions, and remand this case to the Genesee Circuit Court for a new trial.

I. FACTS AND PROCEDURAL HISTORY

The defendant was charged with, among other things, armed robbery, MCL 750.529, and first-degree felony murder, MCL 750.316(1)(b), after the police found known drug dealer Larry Pass, Jr., dead in Pass's own home. At the defendant's trial, two prosecution witnesses claimed to have been present when the defendant allegedly shot Pass. The first witness was codefendant Tarence Lard, who testified for the prosecution as part of a plea agreement for his part in the crime. The second witness was Mark Yancy, who maintained his innocence with respect to the shooting but admitted collecting Pass's drugs, helping dispose of the murder weapon, and using cocaine with the defendant and Lard after the shooting. Yancy and Lard contradicted one another in important ways, although both testified that Yancy and the defendant had had a violent dispute over money in the weeks leading up to the murder. No other evidence connected the defendant to the crime or confirmed that he had ever been at the scene, and no murder weapon was ever recovered.

Yancy was a paid informant;¹ he had been compensated for his assistance in a Federal Bureau of Investigation (FBI) inquiry into Pass's murder and a suspected criminal enterprise involving the defendant. This fact was made clear in a pretrial hearing, during which the prosecutor² specifically called the investigation's FBI task force leader and informant coordinator, Special Agent Dan Harris, to address informant compensation in the case. Harris testified that Yancy was paid for his cooperation relating to “the Larry Pass homicide[,] which was information against Mr. Lard and Mr. Smith [the defendant].”³

At trial, however, the fact and extent of Yancy's participation in the investigation that lead to the prosecution of the defendant and the compensation Yancy received for it was never made known to the jury. On the contrary, Yancy testified that he was not paid for his cooperation in relation to “this case,” i.e., the prosecution of the defendant for Pass's murder. The topic first arose during direct examination, during which Yancy admitted in response to the prosecutor's question that he had been “paid by a federal agency for [his] cooperation.” Neither the prosecutor's question nor Yancy's answer tied his cooperation to his involvement in the investigation of the defendant as the prime suspect in Pass's murder. In order to avoid linking Yancy's compensated cooperation to the investigation and prosecution of the defendant, the prosecutor carefully limited her subsequent questions to whether he was specifically paid for the testimony he was giving, which Yancy denied.⁴ By itself, such cautious presentation of testimony might not have been problematic because the prosecution was careful not to elicit outright false testimony. But then Yancy took this denial further during cross-examination:

[Defense Counsel ]: Do you deny—first of all, it sounds like you agreed that you were paid $4,500 for cooperating with law enforcement, correct?

[Yancy ]: Correct.

[Defense Counsel ]: But you deny that it was with regards to this case, correct?

[Yancy ]: Correct. [Emphasis added.]

The prosecutor revisited the topic during redirect examination, again limiting her question to whether Yancy had been paid for his “testimony” in particular. Yancy again denied being compensated:

[Prosecutor ]: Okay, and just so we're clear, you were not paid to testify in this case, correct?

[Yancy ]: Correct.

Four times, then, Yancy denied having been paid in connection with the defendant's case—specifically, that he had not been compensated for his testimony at the defendant's trial and also that he had not been otherwise compensated for “cooperating” “with regards to this case.” Clearly, the jury could have interpreted this statement to indicate that Yancy had never been paid for his involvement with the investigation of the Pass homicide, not merely that the Genesee County Prosecuting Attorney's office had not compensated him for “testimony” or cooperation with the defendant's formal prosecution. The latter point might have been true; the former point was plainly misleading and likely untrue, as the prosecutor well knew, having elicited Harris's testimony at the pretrial hearing. This former point, however, was never corrected or clarified at trial, nor was the true nature or extent of Yancy's participation or compensation as an informant put before the jury. Rather, the prosecutor exploited the potential confusion Yancy's testimony created by reminding the jury of Yancy's denials during closing argument, cementing the false notion that Yancy had only been paid for his cooperation in other cases, and attempting to advance his credibility as a result of that fact:

Mark Yancy was here, ladies and gentlemen, and he talked to you about [sic] he wasn't charged in this homicide, and that he admitted he was in the house at the time of the homicide, and that he got the cocaine, and gave it to Lard and the defendant. He told you he did not get consideration on this case for testifying, that he got consideration on other cases that the task force was involved with. [Emphasis added.]

The jury found the defendant guilty of armed robbery and felony murder, but acquitted him of the other charges. On June 30, 2011, the defendant was sentenced as a fourth-offense habitual offender to life in prison for the murder conviction and to 20 years, 10 months to 35 years for the armed-robbery conviction. The defendant appealed and, among other issues, argued that the prosecution's failure to correct Yancy's false testimony violated his right to due process and denied him a fair trial. The Court of Appeals affirmed his convictions because it was unpersuaded that the failure to correct Yancy's false testimony made a difference in the jury's estimation of his credibility.People v. Smith, unpublished opinion per curiam of the Court of Appeals, issued October 29, 2013 (Docket No. 304935), p. 5, 2013 WL 5811899. The defendant then sought this Court's review, and we granted leave to appeal.⁵

II. LEGAL BACKGROUND

A due process violation presents a constitutional question that this Court reviews de novo. People v. Wilder, 485 Mich. 35, 40, 780 N.W.2d 265 (2010). It is inconsistent with due process when the prosecution allows false testimony from a state's witness to stand uncorrected. Napue, 360 U.S. at 269, 79 S.Ct. 1173 ; see also People v. Wiese, 425 Mich. 448, 453–454, 389 N.W.2d 866 (1986) ; Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). It is well established that “a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction....” Napue, 360 U.S. at 269, 79 S.Ct. 1173. Indeed, the prosecution has an affirmative duty to correct false testimony, and this duty specifically applies when the testimony concerns remuneration for a witness's cooperation. See Giglio, 405 U.S. at 154–155, 92 S.Ct. 763 ; Wiese, 425 Mich. at 455–456, 389 N.W.2d 866. The responsibility “does not cease to apply merely because the false testimony goes only to the credibility of the witness.” Napue, 360 U.S. at 269, 79 S.Ct. 1173. Nor is the blameworthiness of the prosecutor relevant. Smith v. Phillips, 455 U.S. 209, 220 n. 10, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Rather, while “not every contradiction is material” and the prosecutor need not correct every instance of mistaken or inaccurate testimony, United States v. Martin, 59 F.3d 767, 770 (C.A.8, 1995), it is the effect of a prosecutor's failure to correct false testimony that “is the crucial inquiry for due process purposes,” Smith, 455 U.S. at 220 n. 10, 102 S.Ct. 940. A prosecutor's capitalizing on the false testimony, however, is of particular concern because it “reinforce[s] the deception of the use of false testimony and thereby contribute[s] to the deprivation of due process.” DeMarco v. United States, 928 F.2d 1074, 1077 (C.A.11, 1991) ; see Jenkins v. Artuz, 294 F.3d 284, 294–295 (C.A.2, 2002) (stating that the prosecutor's promotion of the false testimony at summation “plainly sharpened the prejudice,” “ ‘ha[d] no place in the administration of justice[,] and should neither be permitted nor rewarded’ ”) (citations and quotation marks omitted); Mills v. Scully, 826 F.2d 1192, 1195 (C.A.2, 1987) (“[T]here may be a deprivation of due process if the prosecutor reinforces the deception by capitalizing on it in closing argument....”). A new trial is required if the uncorrected false testimony “could ... in any reasonable likelihood have affected the judgment of the jury.”

Napue, 360 U.S. at 271–272, 79 S.Ct. 1173 ; see also Giglio, 405 U.S. at 154, 92 S.Ct. 763. Furthermore, as one federal circuit court of appeals has stated:

Regardless of the lack of intent to lie

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