People v. Wyngaard
| Decision Date | 12 December 1997 |
| Docket Number | Docket No. 182760 |
| Citation | 226 Mich.App. 681,575 N.W.2d 48 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Raymond WYNGAARD, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Patrick M. Shannon, Pros. Atty., and Jonathan C. Pierce, Asst. Atty. Gen., for People.
John W. Groves, Detroit, for defendant-appellant on appeal.
Before O'CONNELL, P.J., and SAWYER and MARKMAN, JJ.
Defendant was convicted after a jury trial of being a prisoner in possession of a controlled substance, M.C.L. § 800.281(4); M.S.A. § 28.1621(4), and a third-offense habitual offender, M.C.L. § 769.11; M.S.A. § 28.1083. This case arose after defendant was found in possession of marijuana while an inmate at the Kinross Correctional Facility in Kincheloe, Michigan. Defendant appeals as of right. We affirm and remand for the trial court to conduct an in camera hearing in order to determine whether the confidential informant who told the prison guards that defendant was in possession of marijuana could provide testimony helpful to defendant.
Defendant first argues that his criminal conviction must be reversed because it violated his right to be free from double jeopardy, given that he had been already punished for this incident when $874.84 was taken from his prisoner account pursuant to a civil forfeiture action. We disagree. This Court recently addressed this issue in People v. Acoff, 220 Mich.App. 396, 559 N.W.2d 103 (1996). Defendant has not provided the transcript of the civil forfeiture proceeding or any proof that the forfeiture was so punitive in purpose or effect that it was equivalent to a criminal proceeding. Therefore, defendant's double jeopardy claim is without merit. Id.
Defendant next argues that his rights to due process and a fair trial were denied where the trial court refused defendant's request that the prosecution be ordered to identify and make available for examination at trial the confidential informant who told the prison guards that defendant was in possession of marijuana. A confidential informant advised Captain Michael Zimmerman that defendant would be in possession of marijuana on the day he was detained and found in possession of marijuana. Defendant claimed that he did not know that the box he was given contained marijuana. He believed he had been set up by other inmates. Defendant asked that the informant be produced in hopes of eliciting testimony that would corroborate this defense theory.
When a defendant requests the production of a confidential informant, the court should conduct an in camera hearing and interview the informant outside the defendant's presence, thereby protecting the informant's anonymity, in order to determine if the informant could offer testimony that would be helpful to the defendant. People v. Underwood, 447 Mich. 695, 706, 526 N.W.2d 903 (1994); People v. Stander, 73 Mich.App. 617, 622-623, 251 N.W.2d 258 (1977). The trial court erroneously determined that defendant was required to demonstrate an actual, rather than possible, need for the informant's testimony before the in camera hearing would be deemed appropriate. Consequently, we remand for the court to conduct this in camera hearing. If the trial court finds that the informant could offer no testimony favorable to the defense, then defendant's conviction shall be affirmed. A contrary finding shall require reversal and a new trial. Stander, at 623, 251 N.W.2d 258.
Defendant next argues that evidence of his admission regarding the instant offense, made at an administrative disciplinary proceeding, was erroneously admitted at trial because he was not given Miranda 1 warnings before the hearing at which he made this statement. However, defendant has failed to preserve this issue because he neither objected at trial nor raised the issue in his motion for a new trial. Furthermore, I am not persuaded that this presents an important constitutional issue that is decisive of the outcome. People v. Newcomb, 190 Mich.App. 424, 431, 476 N.W.2d 749 (1991). Accordingly, I would decline to review the issue.
Defendant next argues that he was denied the effective assistance of counsel where his trial counsel elicited character evidence suggesting that defendant was a known drug dealer. We disagree. Defendant has not overcome the presumption that his trial counsel's actions were consistent with a trial strategy. Also, where there was overwhelming evidence of defendant's guilt, it cannot be said that there is a reasonable probability that the jury would have concluded differently. Thus, there was no ineffective assistance. People v. Stanaway, 446 Mich. 643, 687-688, 521 N.W.2d 557 (1994).
Finally, defendant argues that the crime of being a prisoner in possession of a controlled substance requires a showing of specific intent and that the prosecution failed to provide sufficient evidence to support a jury finding on this element. We disagree. Specific intent is not an element of this offense. People v. Norman, 176 Mich.App. 271, 274-275, 438 N.W.2d 895 (1989). Further, prosecution witnesses testified that defendant admitted knowing he was in possession of marijuana. Therefore, there was sufficient evidence of intent.
Affirmed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
I concur with the conclusions of the lead opinion--affirming defendant's convictions but remanding to determine whether the testimony of the confidential informant should have been admitted--but disagree with the view that defendant's Miranda 1 claim need not be addressed.
On appeal, defendant argues that the trial court erroneously admitted into evidence admissions made at a disciplinary hearing because he was not given Miranda warnings before making the admissions. In People v. Carr, 149 Mich.App. 653, 656, 386 N.W.2d 631 (1986), this Court held that "Miranda warnings do not apply at an administrative disciplinary hearing." I agree with this conclusion for the reasons set forth in Carr. However, the Carr Court also held that, "[q]uite aside from Miranda, defendant is entitled to other Fifth Amendment protections." Id. at 657, 386 N.W.2d 631. The Fifth Amendment provides, in pertinent part that "No person ... shall be compelled in any Criminal Case to be a witness against himself...." U.S. Const., Am. V. The Carr Court found that inmates were compelled to speak at prison disciplinary proceedings:
Under current practice, inmates must make a "Catch 22" choice. They can either testify at the prison disciplinary hearing and incriminate themselves or forego the right to offer exculpatory or mitigating statements and face the potential penalties for prison misconduct based on evidence which they cannot refute or explain.... But if an inmate's statements at the disciplinary hearing can be used against him in a subsequent criminal trial, it is likely that such statements will be withheld from the administrative hearing examiner for fear of being used against the inmate at a later time. The inmate ... is forced to forego a valuable defense. This constitutes an impermissible penalty for the exercise of the privilege against self-incrimination. Even the Department of Corrections Hearing Handbook states that, while Miranda warnings are not required, no statement made by a prisoner at the prehearing interrogative stage or at formal hearings is admissible at a subsequent criminal proceeding.
The Carr Court concluded at 659, 386 N.W.2d 631:
In the present case, defendant's admission at the disciplinary hearing actually served to reduce the severity of defendant's discipline. The penalty defendant thereafter suffered for speaking out was conviction at a subsequent criminal proceeding on the underlying offense. In our opinion the proper remedy is adoption of the procedure announced in [People v.] Rocha, [86 Mich.App. 497, 512, 272 N.W.2d 699 (1978) ], viz.: any evidence derived from testimony at a disciplinary hearing is inadmissible at subsequent criminal proceedings on the underlying charge, save for impeachment or rebuttal, and the accused must be advised before testifying at the disciplinary hearing that his testimony will not be admissible against him at a subsequent criminal trial on the underlying offense.
As a practical matter, I note that testimony that an inmate would consider providing at a disciplinary hearing as exculpatory of a misconduct charge is likely also to be exculpatory regarding any related criminal charges. The principal context in which an inmate's disciplinary hearing testimony conceivably could be incriminating in a subsequent criminal trial is when the inmate decides to admit to a lesser misconduct charge in hopes of proving that he did not commit a more serious misconduct charge.
Whether the use, in a subsequent criminal proceeding, of testimony given in a disciplinary hearing violates the Fifth Amendment privilege against compelled self-incrimination turns on whether inmates are "compelled" to testify in disciplinary proceedings. 2 The United States Supreme Court has observed: " " Minnesota v. Murphy, 465 U.S. 420, 427, 104 S.Ct. 1136, 1142, 79 L.Ed.2d 409 (1984), quoting United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 410, 87 L.Ed. 376 (1943). 3 The Carr Court cited the following language from Baxter v. Palmigiano, 425 U.S. 308, 316, 96 S.Ct. 1551, 1557, 47 L.Ed.2d 810 (1976), in support of its conclusion: " 'if inmates are compelled in those proceedings to furnish testimonial evidence that might incriminate them in later...
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