People v. Wiese

• Decision Date: 28 July 1986
• Docket Number: Docket No. 74438
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Scott Edward WIESE, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 866

389 N.W.2d 866

425 Mich. 448

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Scott Edward WIESE, Defendant-Appellant.

Docket No. 74438.

Supreme Court of Michigan.

Argued June 4, 1986.

Decided July 28, 1986.

Rolf E. Berg, Asst. Defender, State Appellate Defender Office, Detroit, for defendant-appellant.

RILEY, Justice.

Defendant was convicted by a jury of breaking and entering an occupied dwelling with intent to commit larceny, MCL Sec. 750.110; MSA Sec. 28.305, and was sentenced to a prison term of eight to fifteen years. We granted leave to appeal to consider whether defendant was denied due process of law, requiring reversal of his conviction, because: (1) the prosecution failed to correct the false preliminary examination testimony of its principal witness concerning the nonexistence of any promise of consideration in return for his testimony and, (2) the prosecution capitalized on that false testimony at trial by eliciting the witness' conviction for the same offense and implying that no consideration had been promised in return for his testimony when, in fact, such consideration had been promised. We hold that defendant was denied a fair trial consistent with due process in violation of the Fourteenth Amendment of the United States Constitution ¹ and, therefore, that his conviction cannot stand. We reverse the decision of the Court of Appeals affirming defendant's conviction, and remand this matter for a new trial.

I

The key prosecution witness against defendant was codefendant Dean Piper who had been charged and convicted of the same breaking and entering offense. Piper pled guilty in accordance with the favorable plea agreement set forth by the prosecution which included a requirement that Piper testify in any proceedings regarding defendant. The prosecution promised to dismiss pending charges in another case and to recommend that no prison sentence be given in the present case in return for Piper's cooperation. ²

The prosecution's case against defendant depended almost entirely on Piper's testimony. In response to defendant's motion to dismiss, the prosecution explained the delay in defendant's arrest:

"I would state that I assume that the defendant has some question as to why there was a period of delay between April of 1981 when a statement was given by Piper, the co-defendant, and the breaking and entering, and the issuance of a warrant a number of months later in December of the same year. I would state for the Court that Piper plead--pled guilty to this crime on, I believe, December 3, 1981 and only at that time and in conjunction with that plea, did we feel we were able to go forward with the prosecution in this case."

Defendant's preliminary examination was held on January 20, 1982. On cross-examination, Piper falsely testified as follows:

"Q. [Defense counsel ] It's also been mentioned that you were charged in this matter. Have you been given any promises regarding your testimony today?

"A. [Mr. Piper ] No.

"Q. Has anyone promised you regarding any other incidents or anything going on?

"A. No.

"Q. Are you concerned with the fact that you are pending sentencing in this matter?

"A. Yeah, I am.

"Q. Has that in any way affected your testimony today?

"A. No.

"Q. Has anyone offered to make any recommendations based upon what you're testifying to today?

"A. No.

"Q. Do you feel that if you testify today that you're going to be receiving some fair treatment down the road?

"A. No, not that I know of."

Piper was subsequently sentenced on April 1, 1982, to a term of probation. ³

At defendant's trial on April 16, 1982, Piper testified that he and defendant had broken into and entered the residence in question and that they had removed some guns, holsters, ammunition, and a microwave oven from the premises. ⁴ On direct examination, the prosecution questioned Piper regarding his guilty plea, eliciting Piper's conviction without mentioning the plea agreement or its terms. ⁵ Defendant testified, denying any involvement in the breaking and entering of the residence in question and denying having had any knowledge of it. ⁶

During closing argument, the prosecutor bolstered Piper's credibility as follows:

"Now, you may ask yourself, why did Mr. Piper testify? Probably because he was caught and he didn't have any choice. Maybe Mr. Piper's learned something from all this. I don't know. I hope so."

During his rebuttal, he added:

"Consider this in judging credibility. What possible thing does Dean Piper have to gain by not telling you the truth? Why wouldn't he tell you the truth?"

The jury found defendant guilty as charged, and the Court of Appeals affirmed defendant's conviction in a memorandum opinion released April 27, 1984.

Following receipt of the prosecution's answer to this Court's order to show cause why defendant's conviction ought not be reversed, ⁷ we granted leave to appeal on September 25, 1985. ⁸

II

It is inconsistent with due process when the prosecutor, although not having solicited false testimony from a state witness, allows it to stand uncorrected when it appears, even when the false testimony goes only to the credibility of the witness. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). See United States v. Bigeleisen, 625 F.2d 203 (CA8, 1980); United States v. Sanfilippo, 564 F.2d 176 (CA5, 1977). See also People v. Woods, 416 Mich. 581, 601-604, 331 N.W.2d 707 (1982); People v. Atkins, 397 Mich. 163, 173-174, 243 N.W.2d 292 (1976).

In Napue, supra, the United States Supreme Court held that it was a denial of due process for the prosecution to fail to correct the false testimony of its principal witness that he had received no promise of consideration for his testimony. The Court said:

"The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend." Id., 360 U.S. at 269, 79 S.Ct. at 1177.

In Giglio, supra, the prosecution's key witness falsely testified, similarly, that he had received no promise in return for his cooperation. The Supreme Court, in reversing and remanding for a new trial, reasoned that, although the prosecution's failure to correct such false testimony does not automatically require reversal, a new trial is required if the " 'false testimony could ... in any reasonable likelihood have affected the judgment of the jury ....' " Id., 405 U.S. at 154, 92 S.Ct. at 766 (quoting Napue, supra, 360 U.S. at 271, 79 S.Ct. at 1178). The Court concluded:

"Here the Government's case depended almost entirely on Taliento's testimony; without it there could have been no indictment and no evidence to carry the case to the jury. Taliento's credibility as a witness was therefore an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it." Id., 405 U.S. at 154-155, 92 S.Ct. at 766.

In People v. Woods, supra, we acknowledged that "the prosecutor has an affirmative duty to correct a witness' false testimony against a defendant that he was not promised consideration for his testimony." Id., 416 Mich. at 601, 331 N.W.2d 707. See People v. Atkins, supra, 397 Mich. at 173-174, 243 N.W.2d 292. In Atkins, we said:

"Where an accomplice or co-conspirator has been granted immunity or other leniency to secure his testimony, it is incumbent upon the prosecutor and the trial judge, if the fact comes to the court's attention, to disclose such fact to the jury upon request of defense counsel." Id., 397 Mich. at 173, 243 N.W.2d 292.

The prosecution's duty to correct the false testimony of a state witness arises "when [the false testimony] appears." Napue, supra, 360 U.S. at 269, 79 S.Ct. at 1177. ⁹ In the present case, the witness falsely testified that he was offered no consideration in return for his cooperation at the preliminary examination hearing, and not at trial in the presence of the jury. We are convinced, however, that the ultimate effect of the prosecution's failure to correct that false testimony resulted in considerable prejudice to defendant at trial. Defendant, and his counsel, justifiably relied upon the prosecution witness' false preliminary examination testimony and cannot have been expected to anticipate that the prosecutor would capitalize on that false testimony in derogation of his affirmative duty to correct it. Consequently, defense counsel did not requestion Piper at trial concerning the existence of any promise of consideration for his testimony, and the prosecutor was able to bolster Piper's credibility by effectively implying that no such consideration had been promised.

In the present case, which depended almost entirely on Piper's testimony, we must conclude that effectively denying defendant the opportunity to properly question Piper's credibility, an important issue in this case, reasonably could have affected the judgment of the jury. See Giglio, supra, 405 U.S. at 154, 92 S.Ct. at 766. Whether Piper had an agreement regarding his testimony was important to the jury's evaluation of credibility. Considering Piper's false preliminary examination testimony...