People v. Torrez
| Decision Date | 21 May 1979 |
| Docket Number | Docket No. 31097 |
| Citation | 282 N.W.2d 252,90 Mich.App. 120 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Henry Anthony TORREZ, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Nicholas Smith, Westland, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert L. Kaczmarek, Pros. Atty., Michael C. Weiss, Asst. Pros. Atty., for plaintiff-appellee.
Before CYNAR, P. J., and R. B. BURNS and BREIGHNER, * JJ.
Defendant was charged with delivery of heroin, a violation of M.C.L. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a). Following a lengthy jury trial in August of 1976, he was found guilty as charged. On November 22, 1976, defendant was sentenced to a term of 10 to 20 years imprisonment. He now appeals as of right.
The prosecution's case was established primarily by the testimony of Alfredo Velasquez, a police informant. On August 26, 1975, Velasquez met with two members of the Michigan State Police to arrange a heroin purchase from defendant. Pursuant to this plan, Velasquez called the LaFamilia restaurant in Saginaw and arranged to meet defendant there later in the day.
Before departing for this meeting Velasquez was strip-searched and his car searched as well. The officers then followed the informant in separate cars to the restaurant. Upon arrival at the restaurant, the officers maintained surveillance over Velasquez, who entered the restaurant and ordered a meal. Once defendant arrived, he and Velasquez departed and drove to the DeLaCruz home in Saginaw. The officers followed the pair, maintaining their surveillance.
Upon arrival at the DeLaCruz home, Velasquez and defendant met with two other persons, identified as Manuel Lozano and Jose DeLaCruz. DeLaCruz entered the house with Velasquez and defendant. At this time, according to Velasquez, defendant sold him a "quarter" of heroin for $350 which had been provided by the police. Defendant denied having participated in such a sale.
After the alleged sale was consummated, Velasquez and defendant returned to the restaurant. Upon emerging from the DeLaCruz home, the informant was again under constant surveillance until a later meeting with the two officers. At this time he turned over the heroin and was strip-searched again. This search revealed no other drugs other than those contained in a tinfoil packet allegedly bought from defendant.
Defendant contends that reversible error occurred as a result of the prosecution's failure to reveal the existence of perjury charges pending against the informant Velasquez at the time of defendant's trial.
The suppression by the prosecution of evidence favorable to an accused violates due process if the evidence is "material either to guilt or to punishment" and a request for the information is made by defendant. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Where no request is made for the information, the prosecutor is under a more limited duty to disclose potentially exculpatory evidence. United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).
The record tends to support defendant's contention that a request for information concerning charges pending against Velasquez was made by defense counsel. A teletype printout of Velasquez's record was provided, but no reference to the perjury charges is contained therein.
The prosecution argues that it had no duty to disclose the pending perjury charges against Velasquez, because such evidence was inadmissible at trial. In support of their position, the prosecution cites People v. Falkner, 389 Mich. 682, 695, 209 N.W.2d 193, 199 (1973), where the Court states:
"We hold that in the examination or cross-examination of any witness, no inquiry may be made regarding prior arrests or charges against such witness which did not result in conviction; neither may such witness be examined with reference to higher original charges which have not resulted in conviction, whether by pleas or trial."
Although the prohibition noted in Falkner is proclaimed in very broad terms, subsequent opinions construing Falkner have limited its scope to use of prior arrests for purposes of impeaching the witness's credibility, the use for which they were offered in Falkner. See People v. Rappuhn, 390 Mich. 266, 270-271, 212 N.W.2d 205 (1973), and People v. Sanders, 394 Mich. 439, 440, 231 N.W.2d 639 (1975). As a result the prohibition in Falkner does not apply in the present situation. Although the record does not support the conclusion that any promises regarding these charges were made to Velasquez in return for his testimony against defendant, defense counsel is permitted to use evidence of pending charges to bring out the witness's bias or interest, if any, affecting the outcome of the case. People v. Harrington, 76 Mich.App. 118, 121, 256 N.W.2d 52 (1977), People v. Sesson, 45 Mich.App. 288, 298-302, 206 N.W.2d 495 (1973), and People v. Crutchfield, 62 Mich.App. 149, 233 N.W.2d 507 (1975).
Under these circumstances we conclude that a violation of the Brady rule has occurred. Since the withheld information could have been admitted to assist defense counsel in attacking the key witness's credibility, we conclude that this evidence is material as to guilt. As noted in People v. Reed, 393 Mich. 342, 354, 224 N.W.2d 867 (1975):
"(E)vidence concerning the credibility of a witness is relevant toward ensuring that defendant receives a fair trial."
Since the evidence in question certainly related to the trustworthiness of Velasquez's testimony, we conclude that its suppression by the prosecution requires that a new trial be ordered.
Although the resolution of the above issue requires a remand for a new trial, we find it necessary to confront three additional issues which may recur on retrial.
Defendant alleges that the trial judge erred in admitting into evidence testimony by Velasquez regarding another heroin buy from defendant, occurring after the sale for which defendant was being tried. No details of the subsequent sale were brought out at trial. Therefore, we are unable to conclude that the evidence was admissible under M.C.L. §...
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