People v. Adams

Adams PEOPLE v ADAMS v STITT PEOPLE (Calendar 5, Argued 15- Nos. Docket Nos. 77919. March 16). 27, 1988. Decided June jury by convicted in the Genesee Circuit Steven Adams was a Borradaile, Court, J., breaking entering E. of and an Earl Danhof, C.J., dwelling. Appeals, occupied The of and Court At,ten Jr., JJ., for an Holbrook, and D. E. remanded the case imposing explanation the trial the sen- court’s reasons remand, its tence. On the trial court reiterated determination probation he the defendant was unfit for because had Appeals, perjured during trial. Bronson, himself The Court Kelly P.J., JJ., unpublished Latreille, and M. J. and an curiam, opinion per resentencing by remanded the case for a holding judge, that the trial court’s consideration of different 69537). (Docket perjury No. The the defendant’s was error people appeal. Joseph by jury in the Circuit R. Stitt was convicted a Genesee Court, Ransom, J., larceny person. In M. from a Robert sentence, sentencing imposing the court deviated from the guidelines, articulating among other factors that the defendant perjured during Appeals, R. B.

had himself trial. The Court of Burns, P.J., JJ., Deneweth, R. Maher in an and M. and curiam, unpublished opinion per remanded the case for resen- tencing, concluding impermissibly the trial court had weighing perceived enhanced the defendant’s sentence 79651). (Docket people appeal. No. Riley opinion joined by Boyle, In an Justice Chief Justice Supreme Brickley, Archer, Griffin, Justices Court held: sentence, court, imposing A consider a defen- trial wilful, upon perjured testimony dant’s where it is based material, flagrant falsehood. Where the record contains flagrant is a rational basis for the that the defense conclusion logical bearing falsehood and that such misstatements have a References 2d, seq. Am Jur Criminal Law et §§ Law. the Index to Annotations under Criminal See 430 Mich 679 rehabilitation, on the defendant’s the trial court properly may imposing consider this circumstance sentence. appropriate approach 1. The is the individuali- given objec- zation of a sentence to a offender. To achieve this tive, sentencing judge a is afforded a in wide discretion types determining sources and of evidence in used to assist punishment imposed kind and extent of to be within the limits relevant, Highly essential, fixed law. if not to the selection appropriate possession of an sentence is of the fullest informa- possible concerning tion the defendant’s life and characteristics. judge may testimony 2. A trial consider a defendant’s false imposing judge may impose sentence. While a trial not harsher sentence for the crime which the defendant is punish perjury, perjury convicted as so the defendant for may assessing prospect be considered in a defendant’s right, rehabilitation. There is no constitutional or otherwise to testify falsely. mendacity A defendant’s truthfulness or while testifying, exception, probative almost without is of the defen- society prospects dant’s attitudes toward and for rehabilitation sentencing. sentencing judge, and thus relevant to If a consis- legislative policy, tent with is to exercise discretion and tailor a individual, sentence to the reason dictates that evidence of a probative prospects character trait which is of rehabilitation should be considered. Reversed. Levin, joined by Cavanagh, dissenting, Justice Justice stated, perjury perjury while and the subornation of should be punished appropriately, summary enhancement of sen- safeguards hearing judicial tences without the of a review justified present cannot be on the basis that laws and procedures punishing perjury and subornation of inadequate. present procedures are To the extent that laws and inadequate, they reformed, only are should be where a perjury, defendant in a criminal case commits or suborns but parties prosecu- also where in civil cases or witnesses for the justice.

tion in criminal cases so affront the administration of primary responsibility mission and constitutional of the judiciary adjudicate Sentencing ancillary tois controversies. adjudicative Sentencing to the function. concerns should not be permitted indirectly discourage presumptively per- innocent exercising rights, sons from their trial and should be subordi- necessary jeopardizing nated to the extent to avoid or diminish- ing discharge judiciary’s primary mission. The risks to system the adversarial and to the defendant’s freedom to right outweigh clearly improve- exercise the to trial whatever People v Adams Opinion op the Court might ment prospects result the assessment of a defendant’s for rehabilitation. person charged put A with an offense should not be in fear of providing testimony possibility truthful because of the that the sentencing judge might perceive trier of fact and the that the judge might, basis, was false and that the on that summarily protect enhance the sentence. To the adversarial system opportunity right and a defendant’s to exercise the trial, Supreme state, policy, Court should as a matter of sentencing judge that a should assess a defendant’s regard for rehabilitation without to whether the defendant against charge. testifies or otherwise defends — Sentencing Perjury. — Criminal Law court, sentence, imposing A trial consider a defendant’s perjured testimony upon wilful, material, where it is based flagrant falsehood. Kelley, Frank J. Louis J. General, Attorney Caruso, Weiss, Robert E. General, Solicitor Prose- Kuebler, Donald A. cuting Attorney, Chief, Appellate Division, for the people. A.

Barbara Menear for defendant Adams.

Brenda R. Williams for defendant Stitt.

Boyle, J. We are asked in these consolidated cases to decide consider, whether may sentence, when imposing a conclusion that committed while testifying. In People Adams, v we are also asked to consider whether the defendant’s appeal should be dis- missed because he had escaped prison from during its The pendency. Appeals Court of in both cases ruled that the sentencing judge not consider perjured testimony sentencing. Spangler, 29; 429 (1987), Mich NW2d five justices of this Court agreed that perjury may be considered aby sentencing judge. Because of our disposition issue, not, another that view did Spangler, constitute the law of the case. We now 430 Mich Opinion of the Court perjured may consider that a trial court

hold sentencing. We reverse the decisions at Appeals. of the Court of

i

FACTS A. ADAMS PEOPLE v evening April

During 1982, the home burglarized. Virginia Knorr The of Lester and breaking charged was arrested and with defendant and commit 28.305. defense. occupied dwelling entering intent an with larceny 750.110; of MCL MSA violation trial, At the defendant offered an alibi evening of the He testified that on the playing break-in, cards with his he was home family that, He further and some friends. testified period except eighteen-minute 7:55 between for an cigarettes p.m. p.m. buy 8:13 when he went nearby gas station, he remained at his resi- at a This version of events was substantiated dence. testifying the defendant’s witnesses. testimony Gladys Blaho- offered the state next to the Knorrs on Mrs. Blahovec lived

vec. pulled Byrens Drive. She testified that a vehicle driveway approximately 8:30 at into the victims’ p.m. stayed for fifteen minutes. She stated identify truck, the vehicle as a car she could headlight. daugh- Her that it did have one dim but Lavigueur, Betty ter, testified that sometime be- p.m. 8:45 as she turned into 8:30 p.m., tween green pickup Byrens Drive, a blue or she saw leaving Byrens Drive truck with an off-color door Byrens intersection of and Lewis. at Knorr residence one-eighth approximately a of The defendant the Lewis intersection. mile from blue-green pickup partially a a truck with owned v Adams Opinion op the Court on the driver’s side and the truck white door had headlight. one dim tire

Samples of tracks taken from the victim’s were found to similar to the tire driveway Also, prints treads on the defendant’s truck. boot design similar to the tread on judged taken were boots owned the defendant. Finally, toolbox taken from the victim’s residence was found locked in a shed on the property. defendant’s 16,

The defendant convicted on November 1982, Judge Circuit Earl sentenced Genesee E. a term of At years. Borradaile to five to fifteen in- sentencing, Judge Borradaile commented that fitting carceration was because the defendant had friend and had lied victimized brother-in-law’s factors, during his trial These testimony. concluded, against prospect militated of reha- and, therefore, of option probation. bilitation The defendant filed a claim timely thereafter of 9, appeal During on 1983. February pendency briefs, appeal, prior of that to the submission of escaped the defendant from the Southern Michi- gan escapee Prison at Jackson. He remained on capture status until his on 1984. January of "unavailability,” Because the Court Appeals granted to defense counsel an extension result, of time in which to file her As a brief. there was a two months. While still a delay nearly fugitive, appeal proceeded the defendant’s to the briefs, Appeals argument Court of on oral having order that Court requested. By been 30, 1984, dated the case was remanded to January the trial court "for an of the court’s explanation imposing compliance, reasons in this sentence.” the trial court reiterated its earlier determination unfit probation that defendant was because he betrayed family friendship had and "told a bald- faced lie the courtroom.” 684 430 Mich 679 Opinion op the Court unpublished an per opinion,1 curiam the Court Appeals rejected prosecutor’s the request appeal defendant’s be dismissed because he escaped had prison. from The Court reasoned that dismissal would amount to a punishment2 double and further serve to deny right defendant’s 1, appeal under art 20 of the Michigan Constitu- § tion. The Court also concluded that the trial court erred in considering Anderson, sentence. People v

imposing 391 Mich McConnell, 419; 216 People v (1974); NW2d 780 208; App (1982), Mich 332 NW2d 408 vacated (1983). grounds on other 418 Mich 881 Reasoning that a separate count of if perjury was available deemed appropriate, and that use of this criterion Coles, People is improper v under 417 Mich 550; (1983), 339 NW2d 440 the Court remanded the case for resentencing, to be completed before a different judge. prosecutor appealed ruling, and this (1986).

Court granted leave. 425 Mich 852 B. PEOPLE STITT v

The defendant charged was with from a larceny person 750.357; 28.589, in violation of MCL MSA resulting purse snatching from a outside of Mou grocery nir’s store of Flint. The com City witness, Fisher, plaining Sandra testified that she standing saw defendant alone outside Mounir’s grocery approached shop as she the door. While store, she ping, saw the defendant inside the he again was seen outside store when Ms. Fisher left. She identified the defendant as parking man her in the lot as she purse who stole her car. Fisher able prepared to enter Ms. was also Adams, People unpublished opinion per curiam of the Court of v 69537). (Docket 12, 1985 Appeals, No. decided December 28.390, 750.193; making prison escape felony. See MCL MSA Adams Opinion of the Court identify photo identification approximately two months after the theft.

The defendant testified that he was at Mounir’s purse stolen, when Ms. Fisher’s but that he games, playing was inside the store video did not store, leave the the the and that one Val Rawls had taken purse. He further testified that when asked police incident, about he had informed Sergeant Depart- Richard Lewis of the Flint Police purse. ment that Val Rawls had taken the claimed to have sewer drain where the den. He also accompanied Sergeant Lewis to a

purse supposedly was hid- Sergeant rebuttal, In Lewis testified that when questioned he the defendant he indicated no knowledge purse snatching. of a indicated, He further, that he had not been in the area of the years, crime for over one and one-half and that he did not know where Mounir’s market was located. Sergeant Lewis further testified that the defendant had never mentioned the name Val that he did not conduct and investiga- Rawls

any type of field missing tion with the defendant to locate the purse.3

The defendant was convicted a Genesee County jury and was sentenced to a term of six years, eight imposing years. months to ten Judge sentence, among considered, Robert M. Ransom factors, other his belief that the defendant during testimony. had lied that his trial After conclud- ing judge impermissibly the trial had en- by weighing per- hanced defendant’s sentence jured testimony, Appeals the Court of vacated defendant’s sentence and remanded the case for resentencing, citing People supra; McConnell, v App States, 377; Scott United 135 US DC 419 3 purse through Ms. Fisher testified that someone had returned her the mail. 430 Mich Opinion op the Court (1969).4 F2d 264 The state moved the Court of Appeals rehearing, requesting for a the defen- dant’s request sentence be reinstated. That was denied. prosecutor Court,

The appealed in this and leave (1986). granted. 425 Mich 852

ii PERJURY Legislature has appro- determined that priate approach is the individualiza- 769.8; tion of a sentence to a given offender. MCL MSA 28.1080. To achieve this a sentenc- objective, ing is afforded "wide discretion in the and types sources of evidence used to assist him in determining punishment the kind and extent of law.” Williams v imposed within limits fixed York, 241, 246; New 1079; 337 US 93 L Ed S Ct (1949). relevant —if not essential —to "Highly of an appropriate his selection sentence possible of the fullest information con- possession cerning the defendant’s life and characteristics.” Id, p 247. however, sentencing discretion

Recognizing, applied, be this Court established may arbitrarily sentencing judge certain criteria to aid People v In determining appropriate an sentence. (1972), Snow, 586, 314 we 592; 386 Mich 194 NW2d for sentence deter- listed four basic considerations (b) "(a) offender, of the mination: the reformation (c) of the disciplining protection society, of (d) others from and the deterrence wrongdoer, to This list was intended committing like offenses.” evaluation of the various out framework for set a 4 Stitt, opinion per People unpublished Court of curiam of the v 79651). (Docket 7, 1985 Appeals, No. November decided People 687 Adams v Opinion of the Court surrounding

facts circumstances the yet-to-be- and Just properly sentenced defendant. what facts may reformation, considering weighed protec- when deterrence, however, and society, discipline, tion of classified, and rigidly reject any has never been we to so. It remains role invitation do sentencing judge weigh facts deemed relevant Coles, v People supra, 550. sentencing decision. function is to those factors identify Our which sentencing process when into the tread injected unfairly upon rights. the defendant’s

Thus, a does not have unfet tered discretion. Numerous checks shield the de fendant from an arbitrary help sentence insure that objective personalized disposi tion is achieved. addition to the compilation 5 presentence report scoring under the sentenc ing guidelines, other decisions of this Court limit consideration of factors deemed inappropriate sentencing, helping to insure that the judge enjoys broad, fair, yet knowledge of the defendant the circumstances of the crime of which he is convicted.6 bar,

In the cases at the sentencing judges consid- ered the defendants’ false testimony passing when sentence. This the defendants claim to be error. must, therefore, We decide whether it is appropri- ate to limit the trial court’s discretion and exclude this below, factor. For the reasons set forth we 5 771.14; MCL MSA 28.1144. 6See, e.g., People Fleming, 408, 429; v 428 Mich 410 NW2d 266 (1987) (good-time release, credit, disciplining or effect of Prison Over crowding Emergency considered); People Powers Act not be v Yennior, (1977) 892; (sentence may 399 Mich NW2d not be guilt); Moore, People 426, 440; based on refusal to admit v 391 Mich (1974) (sentencing judge may 216 NW2d 770 seled not consider noncoun convictions); People Earegood, 82, 85; v 383 Mich 173 NW2d 205 (1970) (improper plea jury to consider defendant’s last-minute trial waiver); Towns, (1976) App 479; 69 Mich NW2d (sentencing results). judge may polygraph not consider 430 Mich Opinion of the Court sentencing judge may consider A to do so. decline passing sen- when false the defendant’s tence. stances this circum- under what The issue becomes may occur. supra, People Anderson, Court stated this

In v sentencing judge’s at trial consideration that a protecting impression was that his pun- as, effect, error. Viewed was codefendant exercising ishing Fifth Amend- for the accused analogized right silent, the Court ment this constitutional to remain infirmity the rule in Scott v to supra, it found to be States, where United punishment judge impose to additional error for a judge that the defendant believed because perjury. committed found Anderson, error was sentencing judge’s the defen- consideration of right Fifth Amendment exercise of his

dant’s Court, now before the silent. In these cases remain however, right testify. Thus, chose to the defendants clearly involved, not remain silent is inapposite. Anderson rationale is supra, States, the Court In Scott v United sentencing judge’s predicated Appeals error on the punishment he the defendant because believed Writing perjured the Scott himself. for the accused Judge court, unlikely "[i]t is indeed Bazelon observed many serious offen- men who commit lying principle in their on from ses would balk . . . But the defendant does have defense. own right testify If ... in his own defense. reason concludes Government for whatever appropriate, prosecution punishment he risks p supra, Scott, 382. that as well.” supra. People McConnell, To the extent See also trial for the rule that a that Scott stands may punish merely he because a defendant agree. perjured con- himself, our we would Under People v Adams 689 Opinion op the Court scheme, stitutional the defendant has right both a right However, and a to testify remain silent. having voluntarily chosen to the testify, accused must speak truthfully. constitution "cannot be perverted into a license to use of a perjury by way York, Harris v New . . . .” 222, defense 401 US 225; 91 United 643; S Ct 28 L 1 (1971); Ed 2d Wong, States v 174, 431 178; US 97 1823; S Ct 52 Esters, L Ed 2d 231 (1977); 34; 417 Mich (1982).7 331 NW2d 211

Thus, agree while we with the statement that a judge may punish not a defendant we perjury, do agree with the conclusion of the Court of in Scott Appeals the Fifth Amendment for- bids consideration of perjury assessing the de- fendant’s prospects for rehabilitation. We reject that conclusion as did the United States Supreme Grayson, in United States v Court 41; 438 US 98 S (1978). Ct 2610; 57 L Ed 2d 582 Grayson, the district judge at concluded that a prison term was warranted both to deter future criminal conduct, and because he " viewed Grayson’s defense as complete 'a fabrica ” tion without Id., slightest the merit whatsoever.’ p 44. The Third Circuit Court reversed and re manded for resentencing, concluding that "no ad ditional penalty may be imposed upon a defendant because the trial judge believes that the defendant lied while testifying.” 103, (CA 550 F2d 3, 108 1976). See Fauver, Poteet v (CA 517 F2d 1975). The dissenting judge would have found the trial judge’s evaluation of the defendant’s testi mony proper stating: perjury statute, Prosecution under 750.422; the 28.644, MCL MSA appropriate is the course when the pun circumstances indicate that However, ishment is viewing warranted. the realities of the criminal

justice system pragmatic eye, with a perjury prosecu the threat of a testifying tion to the may defendant be empty at times an one. That a perjury prosecution threat of may not inhibit the commission of not, however, is perjury. condonation of 430 Mich op Opinion the Court Williams, supra, legion If of cases under it, hearsay evidence as

which have followed arrests, indictments, pending or indictments prior convictions, resulting tried but not of an constitutionally the selection considered appropriate sentence, it seems to me there is even the greater to consider justification for during trial. of the defendant attitude and conduct In the case, judge personally instant observed defendant; the witnesses the demeanor of "complete fabrication” impressed by he was the lack merit. His obser- and its utter defense person specifically goes to sort vation is; precise, pertinent it is receive, the should and to sentence the defendant making fit punishment the objective desirable of Emphasis 112. the offender. F2d added.] [550 reversed, con- Supreme The United Court States cluding constitutionally the sentence was not critical The Court observed the impermissible. ex- inquiry requires in individualized character, de- background, into the and ploration de- person meanor convicted and that of "[a] testify- while mendacity fendant’s truthfulness behalf, exception, almost ing on his own without probative of his attitudes toward has been deemed for rehabilitation and hence society prospects and supra, 50. Grayson, sentencing.” p relevant Scott, the rule in Court offered: Rejecting Scott only rationale rests on realism in pressures on a psychological of the grant on a we can also dock—which —but incon- deterministic view of human conduct underlying precepts of our crimi- sistent with nal persistent” justice system. A "universal and law, particu- and system stone in our of foundation approach punishment, sentencing, larly in our incarceration, of is the "belief freedom and consequent ability duty and of human and a will People v Adams 691 op Opinion the Court good the normal individual to choose and between long-accepted evil.” Given that "ability view of the duty choose,” of the normal individual we must conclude that the defendant’s under to lie readiness when, here, especially as the trial oath — court finds the lie to probative flagrant may be deemed — [Id., prospects p for rehabilitation. 52. Citations omitted.] Although we obligated are not to follow the Grayson,

holding join we of our majority sister addressing states this issue8 find Redmond, may People ("A States, may State v factor); State may defendant’s not to 466; court dant’s truthfulness when 991, attempt App, court So consider opinion concerning 869, rehabilitative Bertoldi, NE2d 9 (1980) as it 1242, 698, v Del 1258 dant’s ^[1978] 575, 579-581; wealth v 8 2d State v trial court’s 883 bears be considered as one fact to be considered in 699; 391 996 consider (Fla App, 1986), consider 1986); 1247 may Percio, may 235, (rejecting perjury punish alleged v 516 A2d May, State Thompson, to suborn (Alas, (1980) (sentencing judge may Wilson, A2d (Maine, favor falsity Thurmond, 495 A2d 619 P2d 1151 29 Cal 3d on consider a defendant’s false 236 Lask, (1986) (defendant’s consider defendant’s lack 227 Kan v 476 So 2d 197 perceived defendant’s 449 A2d 1381 potential”); perjured 868 as of Stewart, (Fla 1980), 524, State v conclusion that of defendant’s 43 one factor in 135 1980) Grayson analysis); (1978) (trial perjury); 247, v 310 NC Colo App, 1984); 530-531 268 Pa 904, reh den 508 So 2d 13 readiness Meeks, Ariz 393, 397-399; cert perjury); testimony (respect perjury 253-254 70 (1980) Jeffers, App imposing sentence); character 913; State den 454 612, 615; Ohio State 209, 226-227; (Fla, 1985); Super (DC (1982) 68, 71; denial of criminal 176 imposing judge may negatively (trial Atkins v testimony); to determine rehabilitation for truth relevant v cf. (RI, 57 Ill 2d App perjury App, v Huey, Cal 607 P2d 72 defendant has committed 283; Everage US Ohio Bragg, rehabilitation); (trial Commonwealth 663 P2d 604 1985) enhancing 599 P2d 970 court 2d 1986); Rptr 780; 524, 536; testimony 1090 State v 407 consider sentence). State, 150-151; 147, 199 Conn App as court 311 SE2d 866 (Fla, 1987); Daytona Coleman v ("trial A2d 1357 as well as v (1981) (sentencing judge State v Hernandez aggravating sentencing State, 2d (1980) NW2d 40 Kohoutek, may sentence”); consider defendant’s act 44 Ill Dec 633 P2d 976 107; perceived perjury); (1983) as justice (1979) fixing punishment Md See to Banks v United 121, —; v 504 So 2d Plante, probative (trial proper rehabilitation”); consider defen consider defen rehabilitation); State, Alicea, (1979); 385 NE2d 641 435 App also Common ("trial ("sentencing v prosecutor’s (1984) (trial was not in judge may State, NE2d 426 101 Idaho 191 potential, 461, People factor 505 A2d 103; 417 State v 498 Pa Beach (1981) of his (Iowa court 1255, A2d 464- P2d 446 v 679 430 Mich 692 op Opinion the Court compelling. If a logic reasoning a sentence to exercise discretion tailor judge is individual, this Court to reason dictates oblivious to evidence judge legally not render probative of rehabili- a character trait which theme, Marvin Judge this prospects. tation On aptly Frankel stated: is, sure, to "character” to be appraise

The effort one, enterprise necessarily parlous and not an prior judges notably equipped by for which are existing it of sen- training. Yet tencing one clue is in our scheme the rational exercise of discre- to "repentance” If the notion of is out of fashion tion. manipulative defi- today, the fact remains that a law cheerful for the ance of the prognosis pressions the likelihood that he will is not a datum . Im- sentencing judge a about the undertakes. . . being individual sentenced— more, transgress no hope may respond to rehabilitative efforts that he career, degree to with a future to assist which with factors to be vidualized” While it readiness lawful does not deem at war he or does himself worse, society are, or for better central — appraised theory under our of "indi- theory

sentencing. The has its critics. lasts, however, a fact like the defendant’s who

to lie under oath before the among him seem be will sentence would indicia. precise and available more concrete oath”); willingness considering State error in defendant’s 759, lie under 1986) (no (SD, Degen, v of discretion to 396 NW2d 760-761 abuse Bunch, sentencing); 646 defendant’s fabrication at State consider consider SW2d ness as 1983) (trial 158, (Tenn, may court untruthful 160-161 rehabilitation); bearing prospect a factor on defendant’s (1979) 841, 855; Luft, App re ("perjury by 589 P2d sentencing”); Welfare Wash State v the defendant be considered in — (1987) —, —; 47, (following Grayson). Finley, Va 355 SE2d 52-53 W 1981) (defendant’s Smith, (La, Contra: State v 407 So 2d bargain plea to form are not factors untruthfulness sentence refusal Coleman, statutes); 390 Mass under state Commonwealth v (1984). 797, 807-810; Propriety of See also anno: NE2d 157 lying sentencing judge’s or consideration of defendant’s trial, pleas present 34 ALR4th 888. Adams Opinion of the Court (CA Hendrix, States v F2d [United 2, 1974).][9] do suggest We not that the trial judge has area, uncontrolled discretion in this or that there could not be circumstances in which the record support would a claim that the defendant’s testi- mony display did not a flagrant willingness to lie oath, under the gave trial court improper weight to false matter, on an testimony irrelevant or that the trial court improperly concluded that wilful, is, the perjury question was although material the evidence could ration- ally be attributed to the defendant and was there- fore not relevant to prospects the for rehabilita- tion.

However, when the record contains a rational basis for the trial court’s conclusion that the de- wilful, fendant’s material, amounted to and flagrant perjury, that such misstatements logical have a bearing on the question of the rehabilitation, the trial court properly may consider this circumstance imposing sentence. perceive

We can no basis for to a denying trial judge sentencing at type circumstantial inference that a factfinder may draw indisputedly flight, from or from fabrication evidence. In instance, such an the factfinder may infer con- guilt. sciousness of process, trial judge required presume guilt in fact and should be allowed infer that a defendant’s wilful 9Further, ignore practical we should not effect aof rule that judge, having would exclude this the A consideration. trial after heard all evidence, accused, including testimony undoubtedly of the forms opinion an of the defendant’s character. Were we hold that ignore opinion mendacity must of the defendant when engaging required in the individualized evaluation for indeterminate sentences, ter of those who stand before them. judges we would belie fact that trial assess charac 430 Mich 679 op Opinion the Court indi- circumstantially oath under material being a character trait the absence of cates the sen- law-abiding appropriate bears on that tence. permitting we the that accept premise

Nor can evaluating in of such circumstance consideration for rehabilitation convicted defendant’s right of to the the defendant’s will chill exercise trial.10 Supreme recently Court has

The United States no right, there is unanimously reaffirmed otherwise, testify Nix v falsely, constitutional to Whiteside, 157; 988; 89 L Ed 2d 475 US 106 S Ct (1986), Court the specifically rejected Grayson. as "without basis” in chilling argument guaranteed to a right by law is The in accor- narrowly right testify truthfully the to say are that the oath —unless we to dance with the oath is meaning. . . . Assum- mere ritual without sentencing judge’s consid- ing, arguendo, that the testifying in of untruthfulness eration defendants’ decision to chilling effect on a defendant’s any has testify There is entirely permissible. falsely, that effect is perjury. protected right no to commit Grayson, p supra, States v [United 54.] tailoring has declared that the Legislature the task of the trial to the offender is sentence but this It is not attitudinal formulation judge. requires responsibility legislatively imposed of agonizing make the evaluation the trial court to the awaiting before court person who stands the crime consequences of the of light judgment It protect society. the need to committed suggests concerns should subordi The dissent diminishing necessary jeopardizing or to avoid nated "to the extent discharge adjudicating judiciary’s primary ... of con mission troversies,” post, p 705. v Adams op Opinion the Court surely simplify

would the duties of trial court judges imposed if sentences were to be without just surely considerations, these it but as incon- sentencing policy Legislature sistent with the defendant, victim, has declared and that and the public right expect. therefore have a To appreciate fail to the this fact is to fail to understand significance obligation of a trial court judge, to the oath of office. To a trial wilful flagrant mendacity and part is not an "abstraction” but brought the mix considerations to bear process defendant, this so vital to the community.11 victim, and Grayson observed, As the Court the moral postulate legal system of our is that the normal individual has freedom of will and therefore the good duty prem- to choose between and evil. That ise Nix, is reflected as decisions such in the Ethics, Canons of Professional and the rule we adopt today. uniquely proce-

The American commitment to process dural due our historical mistrust of government only has fostered not tolerance but powers admiration the for skillful ambush the required, be. however, that We are not to hold wholly harmless the creation aof fabricated de- process is, As fense. difficult as the the fact is that judges, lawyers, particularly trial lawyers like trial constantly work, in criminal defense are suggestion Legislature upon prosecu 11 The that should be called to problem wholly comprehend any address this to fails that in potential penalty life, mandatory tion any in which the is or term of years substantially fifteen-year penalty perjury, in excess of the for (as against peijury jury tampering the sanction the case intimidation) inherently is subject witness ineffective and not to legislative correction. observation, however, This not the basis our conclusion. given penalties Despite may defendant the fact in a that case the criminal effect, logically possible it not have a deterrent is as that a facing penalties present these will adhere the oath testimony it is truthful as that the defendant will not. 430 Mich 679 op Opinion the Court regarding upon con- what to resolve issues called system permissibly pushes limit, to the duct process. system A that and what is abuse responsi- particularized imposes refined and such bility has that humankind rests on the notion consequences one flow from and that choices postulate a moral other. This is choice or the ingrained postulate in our tradition. That destroy efficacy. proven its The does not cannot be postulate are affirm both what we is asserted to ought legal system and as to be as a and what we opposing country. the individ- view reduces lawyer automaton, to an to an ual defendant appendage system desires, and the of the client’s posture in the face to the deterministic itself of expect adversity can- and therefore one cannot being lengths another human consequences go escape they of a will which predicament. current

A. v ADAMS PEOPLE argues the record fails to

The defendant perjuri- Judge Borradaile considered show cannot factor. We as rehabilitative ous agree. Judge original sentencing, Borra-

At the im- the sentence his reasons for daile indicated stating: posed Adams, through I read Mr. have The Court: And, course, report. investigation presentence I matter because the entire trial of this I’ve heard Judge the trial of the matter. presiding at

was the got on the witness stand you I that consider And, Court, jury. the Court lied to the lied to the I exactly as the evidence was that is satisfied your com- probation officer you told the believe on the quote, "If I had been you say, ment that People v Adams Opinion of the Court jury, decision,” I would have to come the same end quote. I’m you satisfied it. I if your did don’t know ex- brother-in-law thing lice you. was involved with That’s some- prosecutor apparently that po- could determine as to he whether had in fact was as they involved well. So did not [sic] proceed against ceeded you him. But I’m pro- satisfied I’m you got that on satisfied the wit- ness stand and the jury lied to and to the Court. And, for that reason I don’t consider that there is basis, any lies, somebody when justify attempt- to ing probation they when can’t truth tell the when they’re under oath. ISo intend to you. incarcerate [Emphasis added.] Kittendorf, Mr. you may address the Court at this time relative to allocution. all,

Mr. Judge, Kittendorf: first of Mr. Adams employment And, does have available to him. if the Court should see fit send Mr. Adams to the county jail, request we would that have a he work program release support obligation so that he can both honor his and his previous family obligation present support family. to his And, that, recognize in addition to we the —Of course, during I was here course the trial. And, I you’ve right discussed the issue that raised young now with the report. that lady did the probationary And, I’m not I totally certain that can —I can agree you with he certainly lied. I can agree that —with Mr. Adams’ comment there significant was a amount circumstantial evi- particular dence that was involved this case. I hope would that the Court would decide this mat- ter on the basis of to Mr. what Adams can contribute And, community. that’s all really that I say. have to right, add, All anything you

The Court: wish Mr. Adams? No, your

The Defendant: Honor. right, All I don’t Court: consider some- advantage family one who takes of a he where had apparently guest been a before and then lies 430 Mich 679 Opinion op the Court any basis for rehabilitation. the matter has trial of to send- And, as the Court’s determination that’s [Emphasis penitentiary. ing him to the state added.] order- Appeals from the Court

After remand in im- of the court’s reasons explanation "an ing sentence,” Judge similarly Borradaile this posing stated: testimony was that

And the Court notes case that the defendant quite clear in the instant family who was apparent family a friend had been victimized that he knew quite It in this matter. wedding going to that there was be a away from the home. family would be and that And the personal played upon that Court feels that he buddy and knowledge as well as his attended the who also apparent brother-in-law wedding reception thereafter. wedding and the used Court is satisfied that And the that per- family acquaintance with through that knowledge his brother-in-law sonal going away as the basis for his they were, going be no one there to be that there would the house when he knew period for a of time. is an—is a the Court feels So that increasing over for the sentence factor that calls what might have been as a matter the sentence guidelines would show. departure from what the though had no felt that even he The Court also record, under some circum- previous stances trust that he the amount of paid and thus for this violation of if weren’t there [sic] probation, might subject a fit $3,000 money was and involved—over that he took the witness stand fact —the lie that he told a bald-faced the Court was satisñed courtroom, Supreme despite the Court in recently between ruling that there is a difference criminal perjury committed types of various offense, opinion that he is not Court is of the [Emphasis probation. subject fít added.] People v Adams op Opinion the Court factors, Thus those two the violation of trust and lying stand, the factors, on the witness were the two previous

as noted in the transcript of the sentencing, the Court took into account determining the years sentence of five minimum to maximum. years fifteen proceedings

Review of these illustrates that the testimony defendant’s false was but one element considered, and that rehabilitation was a motivat- ing Judge factor in Borradaile’s sentence. There is punishment no indication from the record that contemplated. was intended or case, In this the record reveals that defendant’s perjured testimony was material to his defense. freely testify The defendant chose to after consult- ing with his defense counsel and offered corrobo- rating testimony from other to witnesses substanti- ate his alibi defense. The defendant’s entirely exculpatory directly and bore on the question guilt. supports Judge of his The record Borradaile’s conclusion that the defendant lied testifying that, while therefore, his use of that assessing fact when defendant’s for reha- We, bilitation was not therefore, error. reverse the and reinstate the Appeals decision of the Court of original sentence. light foregoing analysis, we need not appeal decide whether Adams’ should forfeit be- escaped during pendency. cause he its In Michi- gan, appeal right. a first is a constitutional To wade into the waters of waiver or forfeiture is unnecessary. prac- thus We adhere to the Court’s grapple tice "not to with a constitutional issue except Taylor as a last General, resort.” v Auditor (1960). 146, 154; 360 Mich NW2d 430 Mich Opinion of the Court B. PEOPLE v STITT case,

In this argues that he was denied the protections of a trial for perjury when Judge Ransom among included his reasons for the sentence imposed that the defendant lied to the At jury. sentencing, Judge Ransom stated: Stitt, The Court: Mr. guidelines the sentence as a guide which the court is to use provides for a minimum range sentence from zero going to twelve months. I’m sentence record and to deviate from that guideline I’m required to state on the why going I’m guidelines not to follow the why going impose I’m to the sentence that I’m going impose. to So, compelled say I’m things some here that like, you’re going I’m sure my but that’s obligation going you and I’m it to I tell as see it. I’m you satisñed that lied to jury. I’m satis- you manipulative tied that dealing have been pre-sentence investigator. with the I’m satisñed report pre-sentence investigator from the felt also that that the you lie This is an assaultive [sic]. you scruples offense and I’m that satisñed have no your it peoples’ when comes to conduct and other rights. I you’re community think a threat to the going impose and for that reason I’m the maxi- imposed [Empha- mum that sentence can be here. sis added.] argument predicated upon is his

Defendant’s punishing that was him for Judge belief Ransom excerpt trial. of this indicates that at Review lying Judge sup- not the case. Ransom listed this is his that the given, of the sentence belief port lied, manipulative he was with the an that his was assaul- investigator, presentence rights offense, respect he had no for the tive to the commu- others, he was a threat and that term was lengthy prison reasons a For these nity. v Adams Opinion the Court Judge selected.12We are satisfied that Ransom was punishing lying. Rather, Mr. Stitt Mr. mendacity testifying merely Stitt’s while was sentencing "proba- as a stated factor which was society tive of his attitudes toward and Grayson, supra, p . rehabilitation . . .” 50. sup- Adams, inAs in this record instance ports sentencing. the use of defendant’s at grocery He testified that he was inside Mounir’s at store the time of theft and that Val Rawls purse. Further, had taken the he claimed he Sergeant attempt had assisted Richard Lewis an missing purse. to locate the These claims were completely testimony contradicted of Officer Lewis the identification of defendant as the perpetrator by complaining witness Fisher. freely facts, The defendant testified to these testimony obviously was material to the issue guilt. of his

Judge Ransom indicated that the defendant’s false one but factor he addressed passing when sentence. We that factor to find have properly been considered. The decision of the Appeals reversed, Court of is original sentence is reinstated.

CONCLUSION sentencing merely Were role crime, match the sentence to the the burden of system, would be far less onerous. Our requires however, that focus be on the defendant. stage, always At this character at issue. We Grayson observe, Court, as did the that_ specifically noteWe that "rehabilitation” was never mentioned during sentencing, proceeding the but this does fact not render the a Judge perjury. charged assessing trial for Ransom was with Mr. him; passing upon Stitt’s character before succinctly accomplished. sentence this task was 430 Mich 679 Dissenting Opinion Levin, J. [n]othing say today requires sentencing judge a we fashion, enhance, in some wooden or reflex to testimony is sentences of all defendants whose Rather, reaffirming the au- deemed false. we are sentencing judge carefully thority of a to evaluate stand, testimony on the determine— a defendant’s frailty judg- of human a consciousness of the with testimony ment —whether that contained willful falsehoods, and, so, light if assess and material knowledge gained the other about defen- of all meaning respect to of that conduct with dant prospects for rehabilitation and restoration [Id., p place society. a useful 55.] intimating as that not understood We should for rehabilitation assessing when be considered. always should perjured wilful, upon to do hold that so based only We material, not error. flagrant falsehood is and Griffin,

Riley, C.J., Brickley, Archer, JJ., J. Boyle, concurred with (dissenting). agree We all J.

Levin, case has a constitutional in a criminal defendant If silent. he chooses or to remain right testify If he speaks speak truthfully.1 he must testify, not, a trial absent falsely, for a defendant "punish perjury, conviction . . . .”2 perjury however, declares, that while majority who perjury a defendant punish

judge may offense, he may, convicted has not been but was who testified sentencing a defendant when convicted, his belief consider nevertheless testifying while committed 1Ante, p 689.

2Ante, p 689. 703 Adams Dissenting Opinion by Levin, J.

assessing "prospects the defendant’s for rehabilita- disagree. tion.”3 We

A agree perjury We all and the subornation of should be perjury appropriately punished.4 summary The enhancement of sentences with- safeguards out the of a hearing judicial review cannot justified present on the basis that laws and procedures punishing perjury subornation of perjury inadequate. are To the extent that present procedures laws and are inade- quate, should they be reformed to address the evil —not where only a defendant in a criminal case commits or suborns but perjury, parties also where

3Ante, p 689. adopts majority analysis Supreme The of the United States Grayson, 41; 2610; Court in United States v 438 US 98 S Ct 57 L Ed (1978). 2d 582 position Grayson rejected by Supreme The has been Judicial Coleman, 797; Court of Massachusetts. Commonwealth v 390 Mass (1984); Souza, 813; 461 NE2d 157 Commonwealth v 390 Mass 461 (1984); Gresek, 823; NE2d 166 Commonwealth v 390 Mass 461 NE2d (1984). 172 Supreme Grayson Court of Louisiana observed that declared perceived perjury that the defendant’s at trial be examined but grounds enhancing cannot be the sole his sentence. U. S. "[T]he Supreme requires knowledge’ Court 'other about the defendant in truthfulness, thereof, addition to his sentencing.” appellate or lack to form a basis for the Smith, 1981). (La, State v 407 So 2d 657 Louisiana subsequently courts have held that reference to sentencing phase is an invalid consideration and necessitates resentencing. Rovaris, (La App, 1985); State v 464 So 2d 958 State v Adams, (La 1985). App, So 2d Florida, appellate resentencing courts have ordered where the perceived peijury at trial was considered. Beauvais v State, (Fla App, 1985); State, 475 So 2d 1342 Trainor v 468 So 2d 484 (Fla App, 1985); State, (Fla 1985). App, Bowdoin v 464 So 2d 596 agree justice 4 I system therefore that the should not "hold harm wholly Ante, less the further ing tional p creation of a fabricated defense.” 695. I agree majority’s with substance of the observations follow disagreement that statement. Our concerns the need for tradi judicial safeguards "judge[s] when one so another human being.” Ante, p 696. 430 Mich Dissenting Opinion Levin, J. prosecution a civil case a witness for the criminal case so affronts the administration of justice. meantime,

In the this Court should disdain bypass judicial shortcuts traditional safe- guards. guards, jeopardizes rights power, The exercise of absent those safe- adversary system judged trial,

of the defendant to stand to be jury peers, defense, of his to offer a and to testify.

B primary respon- The mission and constitutional sibility judiciary adjudicate of the is to controver- sentencing sies. While the ally function has tradition- assigned Legislature judi- been the to the ciary, obliged and while courts are indeed to sen- present sentencing system, tence under the is ancillary adjudicative nevertheless to the func- Sentencing permitted tion.5 concerns should not be indirectly discourage presumptively to persons adversary innocent exercising rights.

from their trial The rights system and the of the defendant judged by jury peers, tried, to stand to be a of his testify defense, are, to offer a and to under the adjudicative pro- constitution, basic features of the jeopardized cess and should not be or diminished bring hypothetical improvement about a in the sentencing of offenders._ having judges We have become so accustomed to exercise sentenc ing power may sentencing necessarily that some believe that a

judicial function. Legislature may imposed The determines the sentence that sentencing power. Legislature provides the who mandatory nating any exercise The offenses, thereby determinate sentences for certain elimi- sentencing judicial role for those offenses. Legislature may delegate sentencing group the function to a of persons, jury, entity, such as a or to an such as an administrative board, judge. rather than to a v Adams Dissenting Opinion Levin, J.

Lawmaking judicial, the as well as at the at legislative, requires level an assessment competing scaling In choice between competing values. cases, instant values involved highest preserva- to the value should be accorded adjudicative tion of function defen- judged rights by jury, trial, dant’s to stand to be para- testify. defense, It to offer a and to is the obligation preserve mount the courts these important aspects judicial system. of our Sentenc- ing concerns should he subordinated the extent necessary jeopardizing diminishing to avoid discharge judiciary’s primary mission and responsibility adjudicating constitutional contro- versies. deciding judge may, that a when

defendant, consider belief that majority necessarily trial, lied at concludes possible resulting improvement in the assessment of the defendant’s for reha outweighs diminishing bilitation the adversarial system opportunity and the to exercise rights. persuaded his trial I am the risks to system the adversarial and to rights clearly freedom to exercise his trial and manifestly outweigh improvement might whatever result in the assessment of a defendant’s 6 for rehabilitation. longer widely accepted justice It is no system criminal should seek to or rehabilitate reform the convicted offender rather punish potential

than him deter offenders. Dean Francis Allen observed: against The case seriously rehabilitative was first ideal years immediately following undertaken in the The World War II. many observed, first, indictment contained counts. It that talk frequently about rehabilitation as a served cosmetic disguise ugly penal

to aggravate realities institutions that criminality. noted, also, rather than cure It was application of the rehabilitative ideal resulted in the exercise of Mich 679 Opinion by Dissenting Levin, J. charged person not an offense should be A with put providing truthful because fear of possibility the trier fact sentencing judge might perceive that he testified might, falsely basis, on that and that summarily enhance the sentence. protect system and a defen- the adversarial

To opportunity trial exercise his dant’s unfettered rights, to state, this Court should as a matter sentencing judge policy, that a should assess prospects for rehabilitation without defendant’s regard or otherwise defends to whether he testifies charge. against the

i right testify him- and defend The defendant’s not, indeed, commit trial a license to self at perjury. perjury A who lies or suborn causing testifying perjury by when suborns testify falsely may, in the discretion others charged prosecutor, or suborn- with personnel, by judges a discre- discretion and correctional broad concerns, largely affecting free of mean- tion ingful legal more basic human but frequently therefore abused. But standards and growing important any than of these concerns was the work, perception measures do not that after that rehabilitative experimentation no validated scientific decades of evidence of the criminal recidivism. there exists programs capacity to reduce of rehabilitative against spec the rehabilitative ideal has achieved The case precipitous Rarely has there been so tacular success. complete opinion. Today professional the talk is of a reversal of promises incapacitation: to inflict the law’s deterrence punishment should be fixed and kept. Sentences on those who violate it must be parole subject to the discretion of imprisonment boards; many are cases minimum sentences of dangerous propensi mandatory. Persons who demonstrate to be ties to violence should be tion. long subjected of incarcera terms concept punishment refurbished of deserved is to be [Allen, problems pressed of American into service. Central and criminal (1977).] justice, 75 Mich L R People v Adams Dissenting Opinion Levin, J. ing perjury and be punished upon conviction asserts, therefor. The majority however, threat of a separate prosecution does not suffi- ciently deter a defendant from committing or sub- orning perjury.7

If the laws regarding perjury and subornation of perjury inadequate, are the Legislature8 should respond.9 Because perjury and per subornation of jury threaten the administration of justice, this Court might also consider addressing inade any quacy the laws through its rule-making power. 7Ante, 689, p n 7. 8Today’s decision is issued in the wake of dozens of laws enacted in preceding strengthen See, the PA providing older sentences of life courts e.g., months to law enforcement. 66, granting prosecutors rights appeal; additional 1988 PA adjudication disposition juveniles years fifteen charged providing who are with certain offenses maximum imprisonment; 71, authorizing juvenile 1988 PA juvenile pay victim; order a offender to restitution to the 89, requiring prosecutor 1988 PA approval the consent of the right the court for jury a defendant to waive the to a trial in a criminal case. ineffectuality regarding The asserted perjury of the laws prosecutors failure of vigorously might to enforce them more even judgment regarding importance reflect a societal of unfettered judicial process. access to the majority argues fifteen-year penalty perjury that a "is inherently sentence for excess of fifteen two-year felony-firearm sentences, perjury by ineffective” to deter a defendant who faces a mandatory any years substantially life or term of years. legislative mandate, mandatory Pursuant 750.227b; 28.424(2), MCL MSA are routinely imposed upon persons convicted of and sentenced to life imprisonment robbery, second-degree for armed murder and first- degree murder. Many persons robbery second-degree convicted of armed mur- der are sentenced to years. sentenced to minimum terms of less than ten Persons parolable parole life sentences be considered for Johnson, years. People 494; after ten 421 Mich 364 NW2d 654 (1984). perjury meaningful A consecutive sentence for would be a persons. deterrent to all such The deterrent effect of a consecutive sentence for would be greater felony-firearm than the deterrent effect of the consecutive contemplating perjury opportu- sentence because a defendant has the reflect, nity committing underlying after offense and after counsel, consultation with and to consider whether he wishes to lie on thereby prosecution the stand and run the risk of further and a perjury. consecutive sentence for

708 430 Mich 679 by Dissenting Opinion Levin, J.

The evil of is not confined to criminal prosecutions. have all of a circuit judge We heard opened who court with the statement: "Let it perjury begin.” Nor is confined to defendants or prose- witnesses for the defense. Witnesses for the cution lie. also

Empowering judges only to address this evil when in perceived a defendant a criminal case is appropriate to have lied is not an or judicial governmental response troubling problem to the in A lying judicial proceedings. more serious and for, meaningful is called response response that in addresses the evil both civil cases and in crimi- prosecution nal cases —where a witness for the lies, only defense where the defendant lies. Suppose that after the conclusion of the trial of action, a civil contempt cited for of court for lying10 position both the whose re party the trier of fact jected by witnesses party’s and then them summarily up sentenced to serve in the thirty days county jail pay up fine of occur, If this were to general trial $250.11 bar would no doubt be to us ur speaking most process about due and the threat to the gently system. adversarial

If judges against were to move summarily wit- or against nesses civil actions witnesses for the prosecution on the basis their disbelieved evidence it contempt, constituted would be clearer than it apparently today the issue of the guilt and the issue whether the defen- gave separate dant false evidence are issues12 and safeguards traditional against possible abuse power should not be short-circuited._ 10 Scott, 2d, Contempt, pp 38-39; In re See 17 Am Jur 342 Mich § (1955). 614; 71 71 NW2d 11 600.1715; MCL MSA 27A.1715. Grimmett, (1972). People 590, 608; v See 388 Mich 202 NW2d 278 Carter, (1983). App 541; See also 128 Mich NW2d People v Adams Dissenting Opinion Levin, J.

II Suppose Legislature pro that the enacted a law viding pleads guilty, that if a defendant the mini (Adams) burglary mum sentence for shall not years, exceed five larceny and the minimum sentence for (Stitt) person from a shall not exceed three years. Suppose provides the law further that if the plead guilty, defendant does not but rather stands puts people proofs trial and to their but does defense, not offer affirmative mum evidence the mini possible year; sentence is increased one if year year defense, he offers evidence an additional added, and, testifies, if he another may be added to if, enhance the sentence the opinion sentencing judge, the defendant by defense, indicated evidence or good prospect that he is not a for rehabilitation. hope uneasy I would that the Court would be legislation about such izing and would view it as author- imposition punishment the without safeguards penalizing of a trial and as a defen- rights dant’s exercise of his constitutional to a judged by jury, trial, to defense, be a to offer a testify. significant poten- I see no difference between the legislation potential tial effect of such opinion effect of the that the Court announces today. Legislature Should the law, enact such a today’s understandably decision would cited be as precedential authority entirely that such an act is constitutional.

III majority sentencing judge would allow a enhance an offender’s sentence if the de- flagrant perjury wilful, material, tected at 430 Mich Opinion by Dissenting Levin, J. majority postulates by lying, that, a trial.13 The poor defendant demonstrates that he has a atti- society yet therefore, and, tude toward the is not on path toward rehabilitation.

Extending analysis, a defendant who re- plead guilty by standing puts and, trial, fuses to the people proofs might to their also seen as a be poor candidate for rehabilitation. It would seem judge’s perception that lacked the defendant any real defense14would as demonstra- be poor prospects tive of for rehabilitation as the perception judge’s the defendant committed perjury. Similarly, a defendant who offers evidence prosecution’s permits to his other factual witnesses offered rebut evidence or who lawyer complainant to cross-examine the prosecution might being unreceptive also be seen as to rehabil- itation.15

Simply analysis, guilty stated, in that verdict may sigence seen to "establish” defendant’s intran spared

in that he should have the com plainant people expense, inconven ience, and embarrassment of a trial. A defendant "cooperate” prosecution who fails to with the entering guilty plea thereby demonstrates that poor society he has a attitude toward and is un likely to become rehabilitated and therefore more be sentenced severely.16 13Ante, p 702.

with his defense counsel and offered rejected trial into subclasses: cated defense.” sis evidence. The latter cannot constitute states that other witnesses to substantiate his alibi defense.” A line could be drawn Adams, ^[15] added). To be See ante, sure, "[t]he merely p the defendant offered an alibi defense. The there is a difference between defendant where the challenging dividing freely majority offenders who are convicted after a chose to corroborating testimony adequacy adverts to a offering testify suborning p Ante, a defense that is after "wholly prosecutor’s perjury. consulting majority (empha fabri from People v Adams by Dissenting Opinion Levin, J. attitudinal thus can majority’s formulation to discourage be extended exercise of trial readily rights regard without to whether the defendant testifies, commits or suborns perjury, perjury.

IV Juries to tend view a defendant’s failure testify signifying as that he is Revised MRE guilty. 609 (impeachment evidence of conviction of a crime) recognizes importance removing bar riers in the of a way testifying: prejudicial

If a determination of effect is re- quired, only the court shall consider the convic- similarity charged tion’s to the offense and the possible process effects on the decisional if admit- ting the evidence causes the defendant to elect not articulate, record, testify. The court must on the analysis [Emphasis of each factor. added.]_ (a) deny acknowledge guilt those who or fail to their after arrest but, verdict, point acknowledge guilt by at some before trial or their pleading guilty, (b) evidence, relying unsuccessfully offer no those who on the innocence, presumption of (c) who, Adams, those as in offer of witnesses or other exculpatory rejected, evidence that is (d) testimony, Stitt, rejected by those whose as in Adams and is fact, trier of (e) who, Adams, persist asserting in those as in their innocence not, conviction, acknowledge even after conviction or who do their after guilt probation preparing presentence report. to the officer category graded: Offenders in the first could be further Those who (a) (b) arrested, (c) arrest, squad confess when car after to the (d) officer, (e) booking interrogators, anyone to one of the who will (f) cell, warrant, upon arraignment (g) listen —in or out of the on the (h) examination, preliminary upon arraignment at the mation, on the infor- (i) (k) pretrial, (j) sworn, jury at a before the after the the and the confession, prosecution delay rests. To the extent that there is credible, defendant could be considered less sincere and less prospects promising. rehabilitation could be seen as less Meaningful foregoing differences between offenders in each of the subclasses, society pros- in terms of their attitudes toward and their rehabilitation, not, however, pects have been established evi- parts trial courts or before this Court. See and vn. dence vi 430 Mich Dissenting Opinion Levin, J. presents

Today’s the defendant with a decision testify, jury may difficult choice. If he fails testify as evi- inclined to Anew his failure to be guilt. convicted, his If he testifies and is dence sentence

may summarily enhanced without be meaningful judicial if Even he testifies reAdew. truthfully, if a harsher sentence he receive erroneously jury that he and the believe judge, lying basis, on that believes an that his for rehabilitation warrant enhanced sentence. analysis, majority’s an innocent de-

Under the his defense is fendant who is convicted because might sentence for disbelieved receive harsher haAdng persisted in his testified and assertion expect sentencing, that, at innocence.17One would an convicted The may person erroneously innocent has been who might say, honor, I am innocent. "Your Uttering jury made a mistake.” those words punishment years add to a defendant’s be- perceived they may cause be eAddencing poor judge as attitude toward soci- ety.18 discourages

Today’s unavoidably decision a de- giving false, truthful, fendant from as well as testimony.

v argues holding logically majority its legislative mandate that sentences flows from the Yennior, (1977), People 892; 399 Mich 282 NW2d 920 where See this Court said: part A even in on a defen- court cannot base its sentence guilt. to admit

dant’s refusal [Id.] 18 Adams, sentencing judge noted Adams denied prepar guilt speaking probation when after conviction to the officer ing report. presentence v Adams Dissenting Opinion by Levin, J. individually tailored to offender, suit the as well as the offense. Justice Oliver Wendell Holmes cautioned, however: "The life of the law has not logic: experience.”19 been it has been acknowledge logic I that there is a certain to the majority’s position. Legislature has indeed determined that sentences should be individual- prospects ized.20The offender’s for rehabilitation is sentencing judge may a factor that the consider. Typically, mendacity probative truthfulness or is person’s of character and hence of a attitude to- society. may ward It indicate whether he is law abiding and, if he law, does break the what his prospects might for rehabilitation be.21Those ab- provide not, however, stractions do a basis for individualizing particular the sentence of a of- fender absent evidence that there is in fact a mendacity particular correlation between and a prospects offender’s for rehabilitation. particular

And even if a correlation between a mendacity prospects offender’s and his for rehabili- established, tation were to be I nevertheless would urge judge permitted that a not be to consider the apparent mendacity. Compelling policy offender’s diminishing reasons —the need to avoid the adver- sary system opportunity and the accused’s to exer- rights against authorizing cise his trial —militate judge perception to consider his of the bona fides of the defendant’s or defense at the time of sentencing._ 19Holmes, (Boston: Little, Co, 1938), p The Common Law Brown & 1. sentencing, judge may 20 When take into consideration the wrongdoing, protection deterrence society of others from from defendant, punishment

further criminal acts rehabilitation of the defendant. disagree 21 I majority therefore do not with the that "the moral postulate legal system of our is that the normal individual has duty good freedom of will and therefore the to choose between Ante, p evil.” 695. 430 Mich Dissenting Opinion Levin, J.

VI authorizing judge consider, time of at the sentencing, at lied his belief proceeds necessarily majority on trial, the the premise of a assessment that a more accurate prospects particular for rehabilitation offender’s percep- judge such can consider made if the bewill ignored. perception must be if the tion than particular, general evidence, in No lying defen- and a between correlation assumed dant’s sented to this ently pre- prospects has been rehabilitation sentencing judges appar- Court. The premise essentially proceeded as the same on generally majority: estab- it so well does the meaningful correlation be- there is a lished that lying and his tween a defendant’s rehabilitation, gener- on that that a act par- of a the sentence alization to "individualize” sup- evidence to without either ticular defendant premise port indeed a correlation that there is providing applied that defendant or to that as contrary opportunity evi- to offer an defendant dence. sentencing proceedings not have sure, do

To be characterizing judge’s By formality a trial. of a perception or sub- committed that a defendant perjury factor, the safe- aas orned bypassed. guards The defendants trial are of a in advance were not notified the instant cases the sentencing judges sentencing hearings that the they perceived consid- had lied were that had enhancing ering that There on basis. the sentences judges’ accuracy hearing of the on the no perceptions their trials. or Stitt lied at that Adams only except generally judges state, not The did lawyer defendant’s after given opportunity court, address the an were People v Adams Dissenting Opinion Levin, J. they concluding the evidence on which relied in judges that the defendants had lied. After determinations, stated their the defendants were given challenge opportunity an the evidence judges contrary on which the relied or to offer argument. And, or evidence because there is no meaningful judicial review of such determinations resulting sentences, and the appellate enhancement of person per-

review which a convicted of jury or subornation of could obtain is effectively eliminated. anticipate inquiry

I that if would into the valid- premise meaningful ity of the there is a particular lying correlation between prospects required and his for rehabilitation were permitted, appear it would there is a expert opinion variety validity on the particular.22 generally correlation, assumed and in VII par- if Even the assumed correlation between a lying ticular defendant’s and his established, rehabilitation were to be because of system the risks to the adversarial and the defen- opportunity rights dant’s permitting exercise his trial sentencing judge to consider his be- gave testimony, lief that the defendant false perception permitted should not be to be consid- signiñcantly ered unless it ological adds to other character- concerning particular information de- fendant whose sentence is to be "individualized.” sentencing judges in the instant cases did concluding not state bases for that the defendants’ 22See n 6. might appear greater lying It is a there correlation between prospects underlying

and criminal offender is a for rehabilitation where the cause of the drugs activity is addiction to alcohol or than where sociopath who an committed assaultive offense. 430 Mich 679 Dissenting Opinion Levin, J. added to other char- testifying falsely significantly acterological evidence had observed at trial or they reports concerning in the presentence set forth for rehabilitation.23 prospects defendants’ in recurring a ebb and flow There has been Few, theories. if have stood the penological any, test of time. There has been sufficient disillusion- penological ment with theories this Court embracing before another.24 yet should be cautious that a premise Before a sentences on the judge meaningful and correlation exists be- significant defendant’s and his particular testimony tween rehabilitation, least25 he should at prospects than is procedure ordinarily follow a more formal proce- sentencing. He should observe followed comparable applicable judge to those when dures of an asserted fact judicial to take notice wishes opportu- an provide a defendant with thereby and evi- and other expert to offer nity in opposition.26 dence

VIII on imposed may properly Lesser sentences who, with- repentant are truly defendants who their have exercised regard they out whether person sentencing judge does that a who lies in Adams said The any provide basis for rehabilitation. expressed indignation, sentencing judge he did not but Stitt speak the defendant had He said that for rehabilitation. community. scruples See n 45. threat to the and was a no "prospects Although specific for rehabilita- there is no reference Stitt, majority sentencing judge’s statement tion” in the thinking apparently of the defendant’s assumes prospects for rehabilitation. 24See n 6. 26See MRE 201. Because opportunity of the need to exercise his protect trial adversary system rights. People v Adams Dissenting Opinion by Levin, J. right trial, to a are perceived good to have pros- pects for rehabilitation.27

Some persons who accept for responsibility their wrongdoing may indeed significant take a step on path to rehabilitation. But it is difficult determine particular whether a defendant has in fact accepted responsibility his wrongdoing28 or whether taking that step is truly indicative of progress toward actual rehabilitation.29

Over ninety percent of criminal cases are dis- posed of pleas of guilty. The recidivist rate would certainly be lower if admitting guilt one’s reflected that one was good a prospect for rehabili- tation. Since a large number of offenders commit further crimes —most of whom pled guilty when they were convicted —there not may signifi- be a cant difference the prospects for rehabilitation 27If a repentant defendant were to claim to be at the time of sentencing, claim, prosecutor, challenging the bona fides of such a justifiably could arguing refer to the defense offered at trial truly repentant. But, that the defendant is not a defendant who does mercy ground repentant ask for on the that he is should not be upon distinguished called at perjury from at a trial for —as separate or contempt subornation of or hearing justify —to testimony. his defense or may A defendant today rights least until his trial —at —exercise explanation prosecutor, without presentence to the probation officer, protect or the court. This Court should the free exercise of rights those from direct or penalty. indirect invasion or may Whatever recognition correlation there be between acceptance by responsibility personal the offender of character actuality rehabilitation, defects and the per for or few sons, including judges, knowledge experience have the or cases. to assess the significance particular And, may correlation in those who expertise probably disagree. have the 29 person puts people A proofs might who truly to their repentant. might acknowledged guilt He family, have to his friends, therapist, employer meaningful steps or his and taken reorganize his life and reform. He have done so before justice system person might criminal ran its course. Such a neverthe opportunity less that the trier of fact offense than the to. hope have availed himself of the to stand trial in the might guilty conclude that he was of a lesser prosecutor willing plead guilty to allow him to 430 Mich Dissenting Opinion Levin, J. persons persons plead guilty compared to who testify. stand trial and who persons evidence adduced that who No has been pleas guilty on are better are convicted their prospects for than those who stand rehabilitation after trial and are convicted their rejected. Study may establish there defense believing group that of little basis for either is offenders good prospects has for or rehabilitation prospects groups much the of both are the same.

IX recognize system justice, that, under our of a I price may pay trial a there- who stands defendant for. plea practice may of of one think the

Whatever charge bargaining,30 or sen- for reduction whether of the criminal concessions, it a fact life in tence plea rejects justice system. a A who bargain charge that, if reduction runs the risk convicted, than it his sentence will be more severe by might the terms offered the have been under prosecutor. presented, a if no defense is

Even might justifiably judge to sen- be more inclined longer term than he would the offender to a tence have guilty pled imposed be- if offender had during judge of cause, trial, learned the details greater developed may a have the offense enormity. appreciation Also, because of its might a become notorious —as offense details publicity occurred would not have result of right exercise of the defendant’s but (1968) 186; App Byrd, 162 NW2d 12 Mich See J., concurring). (Levin, People v Adams by Dissenting Opinion Levin, J. judge might trial —a enhance the defendant’s sen- tence deter others. sentencing judge may

A he consider what ob- serves the courtroom as as what well he reads presentence report. But, in the potential because adversary system

effect on the opportunity rights, defendant’s to exercise his trial allowing judge perceptions to consider his of a defendant formed on the basis the defendant’s permitting courtroom behavior31 differs from him perception to consider his of the bona fides The defense. latter testify all affect defendants who and are convicted only project while former affects those who so apart themselves defense. their behavior from their

x question policy should falsely —whether consider belief that a defendant testified assessing the defendant’s for rehabili- postulating tation —should avoided judges perception are to unable exclude such a sentencing, from At consideration.32 the time of judge contemplating taking 31 A perceptions into consideration his defendant, on formed the basis of the defendant’s courtroom behavior, provide should so indicate before the defen opportunity attempt persuade judge dant an See United States v defendant must be tions relied on ness, to to the to do so. Gonzalez, (CA 5, 1981), stating 661 F2d 488 that a given opportunity assump an rebut the factual by sentencing judge the to assure fair fundamental Marshall, App 167; and United States v 142 US DC 440 F2d 195 (1970), stating opportu meaningful that a defendant does not have a nity conviction) (a prior to allocute when he does not what know evidence using judge deciding the in the sentence. 32 majority The states: judge ignore we opinion Were to hold the that must of mendacity engaging the alized evaluation of the defendant when in the individu- required sentences, for indeterminate we judges belie would those the fact that trial assess the of character [Ante, p who stand them. before n 9.] 430 679 Mich by Dissenting Opinion Levin, J. judges in a defen- informed of incidents often are prior history the of convictions dant’s into taken consid- not be asserts should defendant interrupt proceedings to Rather than eration.33 judge may hearing time, the state at that hold prior the incident or exclude the that he will accept a from consideration.34 We conviction judge’s done as a matter that he has so assertion of course. preclude

Similarly, rules of law there are considering certain evidence the trier of fact from dispute. deciding the merits of an issue fact, of will sits as trier he Where frequently subsequent remedial have learned of liability insurance, measures, amounts received plaintiff tortfeasors, from other settlement prior compromise, acts, convic- similar or offers in obliged such informa- to exclude tions35and will be fact, when, of he as trier tion from consideration question. the meritorious decides commonplace juries to be instructed It is also inadvertently ignore evidence admitted on obey jury assumption be trusted to can Judgments conviction, as- such an instruction. sessments of findings damages, no cause appellate routinely affirmed action are courts on that assumption. may were claim that the circumstances different prior presentence report or that a convic-

than set forth in the those illegally obtained. tion (1983), 482, 487; Gray, App 336 NW2d 491 See v 125 Mich report stating presentence that a that when "a defendant claims hearing error, evidentiary judge may hold an the trial contains an accept report’s accuracy, may the defendant’s unsworn determine statement, ignore alleged while misinformation sentenc- (CA 5, Cimino, supplied); ing” (emphasis 659 F2d 535 United States v Super 363; 1981); Ayala, 419 A2d 277 Pa Commonwealth (1980). (3d McCormick, ed), pp See Evidence 153-154. § People v Adams Dissenting Opinion Levin, J.

XI "sentencing The that majority judge states does not have unfettered discretion. Numerous checks shield the defendant from an arbitrary . . . .”36 sentence adds: majority suggest do not that trial We has area,

uncontrolled discretion in this or that there could not be circumstances which the record support would a claim that the defendant’s testi- mony display flagrant willingness did not to lie oath, gave under the trial improper that court weight to matter, false on an testimony irrelevant or that the trial court improperly concluded that wilful, question is, that that although material the evidence could not ration- ally be attributed the defendant and was there- prospects fore not relevant to the for rehabilita- tion.

However, when the record contains a rational basis for the trial court’s conclusion de- wilful, fendant’s material, amounted flagrant perjury, and that such misstatements logical bearing question have a on the rehabilitation, the trial court properly may consider this circumstance in imposing [Ante, p sentence. 693.] The majority reviews the evidence and the sen- tencing proceedings in the instant cases and con- cludes that judges’ determinations that Adams and Stitt lied while are testifying supported by the record, their perceptions were but one factor considered in determining the sentences that were imposed, in the case of Adams "rehabilitation was a factor,” motivating and that in neither case

36 Ante, p 687. 430 Mich Dissenting Opinion Levin, J. per- punishment for the record indicate does imposed.37 jury intended or testi- where a defendant’s It a rare case will be "directly question mony of his bear on will not guilt.”38 does not that the defendant the extent To guilt” question "directly testify on on prosecutor will, examination, on cross direct question "directly surely examination, on the focus always guilt.” a contain The record will of his that "material”39 for the conclusion rational basis presented. If is not been there misstatements have record support the conclusion that the defen- for assuredly testifying, there lied would dant while convict, evidence have been insufficient before have been dismissed information should sentencing. support assuredly record

Since there will while testi- the defendant lied the conclusion that fying testifying, provide is after a defendant convicted whenever support does not record a search for serving to "shield check arbitrary Nor does such a sentence.” from an appellate court that an search demonstrate limited to determine whether has the sentence scrutinized gave improper or the weight abused his discretion perceived mat- on an irrelevant ter. require majority

Since the does establishing a correlation record contain evidence pros- particular lying between par- pects rehabilitation, that a the conclusion logical have a "misstatements ticular defendant’s bearing question [his] for reha- on the appellate effectively from insulated bilitation”40 challenge.

37Id., p 699. 38Id., p 699.

39Id., p 693. 40Id., p 693. v Adams Dissenting Opinion Levin, J.

XII twenty-nine years gain- old, married, Adams was fully employed, juvenile and had no known history adult offense aside from the instant of- probation fense. that, officer stated "aside relatively from his conviction, recent he has led a abiding However, stable and law life. he continues deny his involvement offense, instant appear and, in attitude, view of this it would probation supervision purpose would serve little for this individual.”41 It was recommended that period Adams be to sentenced serve a of time in county jail, year.42 i.e., no more one than sentencing guidelines’ The minimum sentence for Adams’ offense was zero to twelve months.43He sixty was to sentenced serve a minimum term of majority sentencing months. The states that judge considering did in not err that Adams "lied testifying” "assessing pros- while in pects rehabilitation,” but it does not focus on question judge whether the abused his discre- sentencing tion in Adams to five times the maxi- mum minimum sentence recommended sentencing guidelines. pre- Unless this Court pared question, that address the assertions in majority opinion sentencing judge that enjoy discretion,” does not "[n]u- "unfettered that merous checks shield the defendant from an arbi- trary judge sentence,” and that the does not have

41See n 15. 42 coverage It was also noted there was insurance for the stolen items, provision. with a $100 deductible proposed guidelines, Under the revision of the it would also have been zero to twelve months. 430 Mich Opinion Dissenting Levin, J. unper- in this area”44 are "uncontrolled discretion suasive.45

XIII majority has, effect, sentenc- The authorized a ing perceive and the defen- characterize that he as a and determine on basis dant liar every good prospect for rehabilitation is not case lowing fol- where defendant has been convicted re- a trial at which he testified —without evidentiary inquiry permitting quiring opportunity or or an those conclusions. to refute it whether would The Court should consider formally treat the assumed correlation be wiser lying for rehabilitation as between guideline sentencing guideline The could factor. persons testify- convicted after who are state 44Ante, pp 693. prior juvenile history than also adult offense other Stitt had no sentencing guideline twelve was zero to the instant offense. following months commission of the instant months. offense, the few arson, charged committing battery assault and Stitt was with and, later, breaking entering occasions, year an one with on two occupied battery charges dwelling. dis The two assault and were prosequi A nolle before in the instant case. missed entered sentencing charge respect after such to the arson a few months breaking day on that Stitt was convicted the same dwelling, entering occupied an a crime for which a consecutive Lee, People years imposed. four See 391 Mich to ten sentence 618, 631; (1974), the issue where the Court addressed NW2d sentencing pending charges at of other criminal consideration against the defendant. problem years old abuse and Stitt was nineteen with a substance sentencing, steady employment. At the and his time Stitt without sentencing attorney recommendation of judge in asked to defer accordance with probation it officer until was determined going charge.” happen to the arson "what’s to sentencing, stating judge that to defer he was satisfied declined investigator. jury presentence He had to the that Stitt lied you I’m that that is an assaultive offense and satisfied added have "[t]his scruples peoples’ your to and no it comes conduct other when you’re community rights. I think a threat to and for that reason imposed going impose to the maximum that can be I’m sentence added.) here,” namely, eight years. (Emphasis years months to ten six v Adams Dissenting Opinion by Levin, J.

ing offering charged can evidence be with addi- points sentencing guidelines, tional every in the in either judge.

case or in the discretion of the This threatening adversary system would less be to the rights provide and the exercise of trial and would at least some structure the administration of potential this factor, "attitudinal” some limitation prison on the amount of additional time to be served, and some basis for sentence review.

XIV greater alacrity Our to reluctance move with meaningful providing judicial sentencing review of suggests aspirations decisions should be legiti- raised, lowered, counsels caution mating sentencing applied a factor that can threatening a manner bedrock values. person right

An accused has a constitutional to adjudication an cannot, on the merits. He allwe agree, cising punishment be assessed increased for exer- right. every

The defense of defendant who stands be- rejected fore and, has been a ordinarily, disbelieved the trier of fact. Permit- ting special perjury sentencing assessment to be against testify levied defendants who but neverthe- rejected— less are convicted when their defense is unproven premise they prom- on the less are ising prospects for rehabilitation than those defen- plead guilty dants who either offer no defense or jury empaneled sometime before or renders a deprecates unnecessarily the fundamental verdict — principle judgment that no court enter a people before both the and the defense have had opportunity an unfettered offer evidence including witnesses, defendant, have their tes- tify. thing recognize accept

It is one 679 726 430 Mich by Opinion Dissenting Levin, J. quite justice system.46

legitimate It is of the needs legitimate yet formulation that another another discourage exercise of trial a defendant’s tends to rights doing so, claim, in this new defendants’ determine formulation will better prospects for rehabilitation. important, critically

Sentencing important, is adjudication providing of for but a forum principal of the controversies is the business integrity of the adver- of the courts. Preservation against important safeguard system sarial —an greater protec- government oppression requires — right respect to stand for a defendant’s tion of by today’s than secured decision. trial is disturbing prospect Today’s creates decision may understandably refrain from that a defendant may testimony offering in fear that he truthful perceived additionally to have if he incarcerated falsely. testified stating resentencing, that a

I would remand perception may of his consider court- on the basis of his the defendant formed perception bona room behavior but testimony or defense. of fides J., with Levin, concurred Cavanagh, J. awaiting sentencing Classifying the basis whether offenders on guilty following plea trial they at on their or were convicted rejected serve to or other defense which their defending persons testifying discourage guilty against otherwise from "improvident” Discouraging charge. exercise of trial system guilty judicial rights by persons may serve needs of the encouraging guilty "unnecessary” trials the number reduce (but Snow, persons plead guilty pleas by 386 257 who should see Courts, 57; 586; [1972]; People v 401 Mich Mich NW2d defendants, summarily punishing [1977]), without NW2d consuming” hearing, and affront to the "time threat another represented by justice their or subornation administration of perjury.

Case Details

Case Name: People v. Adams

Court Name: Michigan Supreme Court

Date Published: Jun 27, 1988

Citation: 425 N.W.2d 437

Docket Number: Docket Nos. 77862, 77919, (Calendar Nos. 15-16)

Court Abbreviation: Mich.