People v. Bell
People v. Bell
Opinion of the Court
Where a complaining witness has, under a grant of immunity, previously given testimony in court under oath that he committed perjury in a prior trial, may such admission be used to impeach the credibility of such witness in a subsequent unrelated trial? Or is the admission precluded by People v Falkner, 389 Mich 682; 209 NW2d 193 (1973)? This issue of first impression, as well as a second issue of first impression relating
On a complaint brought by patrolman Raymond Smith of the Ecorse Police Department, defendant was charged with unlawful possession of the controlled substance, heroin, in contravention of MCLA 335.341(4)(a); MSA 18.1070(41)(4)(a). He was tried by jury in the Circuit Court for Wayne County, found guilty and, on January 6, 1975, sentenced to a term of two to four years in prison. Motion for a new trial was granted January 21, 1975, and defendant was released upon a $2,500 surety bond.
At trial, defense counsel sought to impeach Officer Smith by twice inquiring why he was no longer employed as a police officer. Objection to the questions was sustained and defendant was found guilty of the offense charged. May 8, 1975, he was sentenced to a term of 14 months to 4 years in prison and, having served the minimum sentence, is now on parole. On appeal to us he initially briefed four issues. On the day of oral argument he raised two new issues and moved to remand to the trial court for a full evidentiary hearing on newly discovered evidence or, in the alternative, that leave be granted to file a supplementary brief discussing the new issues. The second request was granted.
Due diligence is required of the people to produce witnesses whose names are endorsed on the information. People v Zabijak, 285 Mich 164, 171-172; 280 NW 149 (1938). What constitutes "due diligence” is set forth in Barber v Page, 390 US 719; 88 S Ct 1318; 20 L Ed 2d 255 (1968). Application of the Barber standard to the transcript discloses multiple attempts to locate the three witnesses. Police efforts to track down the persons named commenced several weeks before trial and continued through the first day of trial. Two of the three witnesses had testified at the first trial and when presented with the availability of their testimony, defense counsel did not press for production of the witnesses.
The question of whether due diligence has been shown is a matter for the discretion of the trial court whose decision will be overturned on appeal
Ten days prior to «trial, defendant moved to permit the taking of a sample of the heroin allegedly seized from defendant. The motion was denied without opinion. It is argued that the independent sampling was crucial since the substance introduced at trial was tan or brown-tan in color whereas the substance allegedly thrown beneath the automobile was described as a white powder. The law on criminal discovery is evolving
Was the stop of the automobile unreasonable because it was based on incorrect information in the LEIN system? The question posed presents an issue of first impression, the resolution of which necessitates a further statement of facts. Early in
At oral argument two additional grounds for
In response to the first question, we note that at trial defendant presented two defenses. One was the technical legal defense, rejected by us, that the original stop, being based upon inaccurate LEIN information, was unreasonable. The second was factual, namely, that defendant did not throw a coin envelope on the ground. The chief witnesses for the prosecution were Ecorse police officers Raymond Smith and Al Demings, especially Raymond Smith who testified he retrieved the coin
The factual allegations recited in (a) above, refer
*280 "By his deliberately false testimony concerning his criminal record he deprived the jury of information which they could legitimately use in judging his credibility. A different appraisal of his worthiness of belief might well lead to a different result in a new trial. United States v Gordon (DC, 1965), 246 F Supp 522; United States v Senft, (ED NY 1921), 274 F 629. Without a new trial, the verdict would be forever beclouded by the possibility that the jury unwittingly acted upon false testimony of an undisclosed perjurer and convict.” LoPresto, supra, at 328.
The allegations recited in paragraph (d) above refer to prior "dropsy scenario” incidents. We find no error in the trial court’s disallowance of this testimony for impeachment purposes. Admittedly, evidence of prior "dropsy scenario” episodes may suggest fabrication in the case at hand. But the mere fact that the arresting officer similarly testi
For similar reasons, remand to the trial court for the purpose of conducting an evidentiary hearing to determine whether a complaint against Gregory Lewis was falsified by Smith [paragraph (c)] would, in our opinion, be fruitless because the evidence would not be admissible. People v Falkner, supra and infra.
We have before us an affidavit by a command officer of the Ecorse Police Department. That affidavit states that the officer has personal knowledge that Officer Smith falsified charges against Gregory Lewis. We find the affidavit to be indirect but powerful evidence of perjury in the present case; but we cannot allow its admission without creating an impossible situation. If this testimony were admitted, we would also have to allow Louis Harrington (and all other defendants previously charged by Officer Smith) to be called in this case to testify that Smith also falsified the charges on which they were tried and/or convicted. Similarly, in all future cases, defendants would be able to call as impeaching witnesses all persons previously charged by a common complaining witness. The
We now turn to the second question raised by the supplemental briefs, viz., is Officer Smith’s testimony under a grant of immunity that he perjured himself in another case admissible under present rules of evidence. The people assert such testimony is not admissible and cite what has become known as the Falkner-Brocato rule in support thereof:
"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 plea or trial.” (Emphasis supplied.) People v Falkner, 389 Mich 682, 695; 209 NW2d 193 (1973).
Because the admission of perjury was made under a grant of immunity the witness has not been "convicted”. Defendant argues that despite the language of Falkner laying down an absolute rule applying to "any witness”, an exception should be made where perjury has been confessed before a grand jury and again confessed under oath at a trial in Recorder’s Court.
Where a witness has previously given testimony in court under oath that he committed perjury in some prior judicial proceeding, the official transcript of the testimony containing the admission may be used to impeach the credibility of the witness at a subsequent trial.
Adoption of such a rule is admittedly a limited extension of Falkner. Nevertheless, we believe adoption is necessary in order to afford a fair trial. Preclusion of the officer’s perjury in the instant case, in our opinion, results in a denial of defend
Reversed.
The record is silent as to the reasons justifying the motion for a new trial. Likewise, the record is silent as to why the order for a new trial was granted.
(1) The stop of defendant’s automobile was unreasonable because it was based on incorrect information obtained from the LEIN system about an outstanding traffic warrant which was no longer outstanding; hence, the illegality of the stop makes the seized contraband "fruit of the poisonous tree” and inadmissible; (2) Insufficient reasons were given for the dismissal of juror #13; (3) failure of the prosecution to use due diligence to find three res gestae witnesses; (4) denial of defendant’s request for an independent analysis of a sample of the alleged heroin.
United States v Tirado, 25 FRD 270 (SD NY 1958); Jackson v State, 243 So 2d 396 (Miss 1970); State v Migliore, 261 La 722; 260 So 2d 682 (1972); James v Commonwealth, 482 SW2d 92 (Ky 1972).
Plaintiff contests the assertion that the ticket had been paid. Plaintiff points out that the time of payment of the ticket is not of record and thus may have been paid some time after Bell’s arrest. However, for purposes of this opinion, we will assume that the ticket was paid some time prior to defendant’s arrest but before report of payment had been made to the LEIN computer.
"We hold that in deciding whether to arrest for the misdemeanor of driving without an operator’s license, a police officer may properly rely on information obtained by radio from another police officer who is examining an official record, that such information becomes part of the arresting officer’s knowledge which he can consider in deciding whether a law violation has occurred in his presence.” People r Dixon, 392 Mich at 699.
The motion to remand states the two new issues as follows: (1) The people suppressed evidence extremely relevant to the credibility of a key prosecution witness; 12) Newly discovered evidence entitled appellant to a new trial.
"IT IS ORDERED on the Court’s own motion that:
"1. Within 10 days from the date of certification of this order plaintiff shall, by brief, respond to the allegations of newly discovered evidence made in defendant’s motion to remand. Specifically, said brief shall include (a) reasons, if any, why said motion to remand should be denied, (b) what reason, if any, distinguishes this cause from People v William Louis Harrington, supra, [Docket No. 23935, a virtually identical case] and the action taken by a separate panel of this Court to remand in said case.
"2. Within 7 days from receipt of plaintiff’s brief as above ordered, defendant may, at his option, respond to said brief. Included within said response defendant shall brief how evidence of alleged perjury by Officer Raymond Smith could be introduced at a new trial, given Michigan’s rules on impeachment.” Order 11/26/76.
See fn 7, supra. Appeal from trial December 12, 1974, in Wayne County Circuit Court, Judge Horace Gilmore. Our file 23935. Following remand by another panel of this Court, Judge Gilmore granted the defendant’s motion for a new trial in People v Harrington on February 4, 1977.
In Kennedy, supra, the newly discovered evidence indicated that the complainant — a prostitute — had perjured herself. The nature of the perjury was not set forth in the opinion.
There appears to be no question but that on September 9, 1974, Officer Smith testified before a Wayne County Citizens’ Grand Jury that he received $1,000 for giving false testimony on a carrying a concealed weapons charge in Recorder’s Court. These admissions were
Concurring Opinion
(concurring). From the facts presently before us it is evident that defendant is entitled to a new trial. I agree with Judge Allen that where a witness has previously given testimony in court under oath that he committed perjury in some prior judicial proceeding, the official transcript of the testimony containing the admission may be used to impeach the credibility of the witness at a subsequent trial.
I would not, however, rule at this time on the admissibility of any other evidence relative to the credibility of any of the witnesses or other evidence of wrongdoing on the part of any witness. For this reason I concur in Judge Allen’s opinion except insofar as it prospectively rules certain evidence inadmissible at the new trial.
Reference
- Cited By
- 30 cases
- Status
- Published