People v. Atkins

1976] Atkins v ATKINS

PEOPLE (Calendar 2). 8, Argued Docket No. 54998. October No. —Decided 8, July 1976. by jury Clarence convicted the heroin Atkins was of sale of Anderson, Court, T. Kalamazoo Circuit Donald J. The Court of J., Burns, Peterson, Appeals, JJ., R. B. P. and T. M. Burns and 15674). (Docket Testimony by affirmed No. an addict-informer supplied only directly linking evidence the defendant with use, history the sale. The fact of the of informer’s heroin possible criminal record and his motives fabrication were explored by special defense counsel on No cross-examination. cautionary pertaining credibility instructions to the informer’s requested given. were After the defendant was convicted an prosequi granted charge breaking order of nolle was entering against recognition the informer in of his assistance in prosecutions. appeals. opinion by narcotics Defendant In an Fitzgerald, joined by Justice the Chief Justice and Justices Coleman, Williams and held: was jury sponte 1. Failure of trial court to instruct the sua testimony of an addict-informer was to be received require jury fully with caution does reversal. The apprised past possible of the criminal the informer and his testifying. motives for 2. Uncorroborated of an addict-informer is suffi- jury cient aas matter of law to make an issue for the guilt jury may defendant’s and the convict on that alone. upon prosecutor judge It3. is incumbent and the trial upon jury request grant disclose to the of defense counsel a immunity leniency, expectations or other or reasonable However, leniency resulting prosecution. from contact with the required although is not disclose there [7-10] [1, ^{[5] [2] [3]} 81 Am Jur Witnesses 58. 75 Am Jur 25 Am Jur 75 Am 75 Am Jur Jur 2d, 2d, 2d, Drugs, Narcotics, References 2d Trial Trial 413 2d, Trial 687. § §§ por § § 818-820. etseq. Points in Headnotes Poisons §§ 47. 397 trial, recommend he intends no at time witness. The was made for the some sort of consideration by defense counsel of aware means the cross-examination of giving might the informer in the facts have motivated which possibility the of testimony, to disclose and failure certain testifying against the informer for future favorable treatment the not mislead it. defendant did Levin, joined by and Wil- Chief Justice Justice Justice the liams, opinion: separate in a concurred argued in this case that the have 1. Defense counsel expectation by testifying justifiable the that for witness a had the people might In context of a favorable treatment. he obtain argue to in by intended that counsel that he statement defense agreement might an and the the there be the mind of witness however, closing arguments, the reversible failure to record predicated in this case. error cannot be duty 2. The affirmative to disclose reasona- has an any expectations leniency of ble a has well as witness duty promise leniency. this if he to He violates fails correct impression testimony gives a witness has not which a false testimony. by promised A for statement been consideration promise accomplice-informer made that no has been witness misleading, although positive promise no has been to him is made, expectation leniency if or other he a reasonable has reward. witness, agreement prosecution 3. If there is an with a agreement jury. is If there no and must disclosed lodged against charges could be of law violation have been or deferred, sentencing in similar or has been prosecuting prosecutor has refrained from or has cases the sentencing granted sought charge reduction or prosecution, their for who assisted the those facts and witnesses fully explained jury. significance should be disclosed accomplice-informer practice granting leniency to 4. The should, judges, judge and a without witnesses is well known counsel, require jury request a a from defense statement practice, judicial permit the take notice of or of the either prove practice. defendant to (1973) App 209 NW2d affirmed. Opinion of the Court Jury Informers—Credibility— 1. Criminal Law —Instructions — Cautionary Instructions. jury sponte in trial of the trial court to instruct the sua Failure People v Atkins for testimony sale of heroin that uncorroborated of an addict-informer with caution was was to be received not revers- jury fully apprised ible error where the of the informer’s possible testifying through criminal record for and his motives by cross-examination defense counsel. Drugs Sufficiency 2. and Narcotics —Sale of Heroin — of Evi- dence.

Uncorroborated of an addict-informer in a trial sale heroin sufficient as matter law to make an issue for jury guilt jury may and the defendant’s convict on alone. 3. Criminal Law —Witnesses—Informers—Favorable Treatment— Disclosure. A in trial for sale of heroin was misled a failure of prosecution possibility to disclose the of future favorable prosecutions testify- treatment other for an addict-informer ing against the defendant where no between the prosecution trial, witness and the existed at the time of and the jury by aware means of made cross-examination of the by might witness defense counsel of the facts which have testimony. giving motivated the witness in certain Jury Informers—Credibility— 4. Criminal Law —Instructions to — Cautionary Instructions. requirement Statute and court rule condition the of an instruc- one; jury request cautionary tion to the aon for a instruction is appropriate where the uncorroborated of an addict- only linking informer is the evidence an accused with an alleged offense, request proper but there must be a for the (MCL 28.1052, 1963, 516.1, 516.2). 768.29; instruction MSA GCR 5. Criminal Law —Trial—Evidence—Trier of Fact. case, particularly jury, trier fact a The of in criminal the has the disbelieve, right part, any to believe or or whole presented. evidence Accomplices—Credibility—Instructions 6. Criminal to Law — Jury. prosecution upon upon request It incumbent the of defense jury accomplice coconspira- to counsel to disclose the that an or granted immunity leniency, tor has been or other or has a expectation leniency resulting reasonable of from contact with prosecutor, testimony, the to secure his and if that fact comes judge’s upon judge to attention is incumbent to jury upon request it to the disclose of defense counsel. Opinion Concurring J., JJ. Kavanagh, C. Williams 2. See headnotes 1 and Accomplices—Credibility—Disclosure.

7. Criminal Law — duty jury prosecution to to the The disclose has an affirmative immunity granted accomplice coconspirator has been that an expectation leniency leniency, of or other has a reasonable resulting prosecutor, his testi- with the to secure from contact duty mony; prosecutor if he fails to correct a a that violates promised impression consider- false has not been that witness testimony. for ation his Accomplices—Credibility—Disclosure. 8. Criminal Law — accomplice-informer practice leniency granting wit- The to of should, judge judges, and a without a nesses is known to well counsel, jury request require a to the statement from defense practice, judicial permit notice of or or either take practice. prove the defendant to Witnesses—Credibility—Disclosure. 9. Criminal Law — duty has an affirmative disclose reasonable expectations leniency any promise witness has as well as leniency; duty he violates this if he fails correct gives impression which a false that witness has been promised testimony. by A consideration statement accomplice-informer promise no has been made to witness that although made, misleading, positive promise him is no has been expectation if he has reward. a reasonable or other Witnesses—Credibility—Disclosure—Preserv- 10. Criminal Law — ing Question. predicated Reversible cannot be on failure error asserted jury possibility future disclose there was a prosecution favorable for an addict-informer treatment where counsel that he witness in a case defense announced thought argue he had intended to closing arguments were with the but so that it known how the case went recorded cannot be jury. Kelley, A. Robert Frank J. General, Attorney Burge, Derengoski, General, Donald A. Solicitor Stephen Wheeler, M. Attorney, and Prosecuting Division, people. for the Appellate Chief of v Atkins Opinion Court Daudert & Barron for defendant. J. Defendant Clarence Atkins Fitzgerald, by jury

stands convicted of sale of heroin.1 His by Appeals conviction was the Court of affirmed at App 209 NW2d 735 We like- having wise affirm after examined and answered following questions negative: in the (1) required Whether reversal is sponte because the jury trial court did not sua instruct that of an addict-informer was to be received caution; with care and

(2) Whether the uncorroborated of an addict-informer is insufficient as a matter of law to jury-submissible guilt; make a issue on defendant’s and

(3) . Whether the was misled a failure to possibility disclose the of future favorable treat- testifying against ment for the addict-informer defendant. alleged

The indictment the unlawful sale place City took on 12, 1971, or about March in the Testimony of Kalamazoo. at trial indicated that in date, the afternoon of that one Edward Nero tele- phoned Department the Kalamazoo Police informed a Detective Walker that Nero had ar- ranged purchase heroin from the defendant. department Nero had been an informer for p.m., for some six months. Around 10 Detective policewoman Walker and a met Nero near the place arranged purchase. Walker, who had previous per- worked with occasions, Nero on pat-down person formed a search of Nero’s by looking searched Nero’s car on the front and glove seats, rear partment. under the seats and in the com- gave Walker Nero bill after re- $20 335.152; 18.1122, repealed by 1MCLA MSA 1971 PA 196. 397 Opinion the Court of his then drove car Nero cording the serial number. to was made. place purchase where the followed in their policewoman Walker and the disappear Nero be- They saw unmarked vehicle. Patterson at 216 W. Street. hind located house that house 10 from behind They emerge saw him car, and drive to later, into get minutes back he turned over to place where original meeting proved subsequently packets of what them two be heroin. testimony supplied only evidence di-

Nero’s fact rectly the sale. The of linking defendant with use, his long of heroin criminal history Nero’s record, possible and his motives for fabrication by defense counsel. De- thoroughly explored were contradictions in highlighted fense counsel several also revealed that there testimony. Nero’s It was charge breaking entering pending and jeopardy that he was in against Nero and a Kalamazoo By questioning revocation. probation it was revealed that when County deputy, Sheriffs January in 1971 on the Nero was arrested late breaking entering charge, proposed Nero and whereby he would become an informer for the deal department sheriffs return dismissal However, charge. deputy testified no such agreement was made. request special any

Defense counsel did not credibility, to Nero’s and pertaining instructions stated that he had no to the instructions objections given. having knowledge full jury, that were character, history, possible expecta- Nero’s reward, August tions returned a verdict on charged. guilty 29, 1971, petitioned the prosecutor On November breaking entering prosequi for nolle Nero, charges pending against grounds on the Atkins Opinion of the Court he had property returned the stolen and had great "rendered area assistance of the nar- within cotics traffic County” Kalamazoo including testimony pleas which in had "resulted and convic- regarding tions narcotics violations”. The petition granted order of prosequi nolle was by the circuit court.

I The trend of criminal practice Federal trial is now to require special a cautionary instruction regarding the testimony government of witnesses who are narcotics addicts and who are paid in formers or who have criminal charges against them.2 In Michigan, there is no similar tradition of require special The first Federal case to instruction in this States, context seems to App have been Fletcher v United 81 US DC 321, (1946), where, early stage 158 F2d at an of this nation’s awakening problem drug abuse, Judge opined to the of Groner that it recognized drug inherently "well perjurer fact that a is language addict where his own interests are concerned”. This has even lead request jury defendants to that the court instruct the as a matter of inherently perjurers, law that addict-informers are but refusals so request appeal. Virgin have been sustained on Government (CA Hendricks, 1973). 3, Islands 476 F2d 776 United States v (CA 1974). Gregorio, 4, general language 497 F2d 1253 The testimony instruction is to the effect that the of an addict-informer paid pressure greater who is either scrutiny or under must be examined with ordinary Masino, than that of witness. United States v (CA 1960). 2, precise 275 F2d 129 The terms the instruction have responsibility been left to the trial court whose ultimate it is to charge. formulate One version anof instruction on informers can Blackmar, Jury found in 1 Devitt and Federal Practice and (2d ed), Instructions does not 12.02. The Devitt and § Blackmar instruction specify unique danger present testimony interested said to be in the general of addict-informers. more Another on instruction Mathes, testimony Jury can be found in Instructions and Cases, Forms for Federal Criminal 27 FRD 68 dangers inherent in such are said to include the being jailed deprived drugs, addict’s fear or of access to and also the fear of drug retaliation from others in the trade. United States v Kinnard, App 150 US DC 465 F2d It is unclear thought present whether cocaine methadone addiction is like dangers. Gregorio, supra. United States give per Failure refusal to the instruction is not se reversible 397 Opinion the Court special instructions area judicial decision in the credibility of addict-informers. pertaining courts fact that state This due to may be than Federal courts further general have retreated judicial of liberal tradition from common-law trials. comment on the evidence condition court rule5 Michigan statute4 and request on a there- of an instruction requirement where, here, binding requirement This for. error on the instructions predicates defendant no the trial rather contends actually given, but instructed in on should have court its own motion judicial of state deci- an area no tradition where not be adverse While this Court would sion exists. the uncorrobo- cautionary to a instruction where is the only rated of an addict-informer alleged the of- the accused with linking evidence fense, Focusing proper request. there must be a a particular suspicion on wit- special attention or Lee, App F2d 111 v 165 US DC 506 error. See United States (1974), (CA 1961), States, Joseph v 293 F2d 747 and Orebo v United (CA 5, 1960), States, the 286 F2d 468 where informers’ United substantially Compare United States v was corroborated. (CA 6, 1967), give Griffin, to 823 where the trial court failed F2d instruction, erroneously unrequested cautionary and instructed on the attaching presumption unless a outweighed by of truth a witness’ contrary. the evidence to (3d ed), Wigmore, 2551. Evidence § 28.1052, 768.29; part: of reads in "The failure the 4MCLA MSA setting point ground any on of law shall court to instruct jury requested of aside the verdict the accused.” the unless such instruction part: 516.1 and .2 GCR read evidence, Request the of ".1 for Instructions. At or before close the directs, any reasonably any party may, or time the court the at shall, requests jury parties the on file written the court instruct * * * may request. make such law as forth in the court the set evidence, testimony, and of the comments on the witnesses as in the the character justice require. its discretion the interests Objections. party may assign giving No the or the ".2 error jury give objects he the failure to retires to consider the he an instruction unless thereto before verdict, stating specifically the to which matter grounds objects objection. Opportunity the shall be hearing jury.” given objection out of the to make Atkins Opinion of the Court risky a ness or can be business. class witnesses given opportunity Both sides should be develop respect to the the record with fairness of proposed such instruction. People McCoy, 231, 236-238;

In (1974), NW2d 456 this Court dealt with a related regarding jury credibility instructions area accomplices. majority A of this Court therein prospectively that it would be reversible held error upon request give cautionary "to fail instruc- concerning accomplice testimony and, if tion closely drawn, issue is it be reversible error to give cautionary fail to instruction even in such charge”.6 request holding This absence of a require case, in the does not reversal instant nor opinion that in the are we of the interests of justice McCoy First, extended. should be so given prospective appli- rule under discussion was beyond long- it went cation for the reason Michigan precedent established to the effect that special regarding credibility instructions was a matter within the sound discretion of the trial Second, court. there was no imbalance in the given McCoy, instructions in the instant case. In error was found the trial court’s failure to language actually and caution balance care used language in the instruction on similar alibi with relating accomplice against who testified Third, the in the case at defendant. bar past, possible fully apprised of the criminal an motivation of witness Nero. It would not be unfair assessment of the record herein to say that testimony much was elicited on the issue of credibility guilt as on that of defendant’s Nero’s implement holding, proposed 231 at 240. To this 392 Mich circulating Michigan Jury Standard for Criminal Instructions now cautionary relating study accomplice testimony. comment contain a instruction 397 Opinion op the Court strategy the outset from was to innocence. Defense put In the face this clear on trial. Nero strategy, lightly disregarded that defense counsel cannot assume we requesting possibility of cautionary instruction or that such an instruction requested. if Under the would have been refused 28.1052, circumstances, 768.29; MSA MCLA controlling. GCR 516.1 and 516.2 are II urges Defendant this Court to follow the Illinois testimony rule7 that of an the uncorroborated a matter of addict-informer is insufficient as make a law to jury-submissible case, and that his motion people’s proofs to dismiss at the close of the should granted. recently, have been Most this Court has steadfastly supported right stated that it "has particularly jury, fact, believe, of the trier of part, any disbelieve, or evidence in whole or in presented”.8 credibility hold that We accomplice,9 addict-informer, of an like that of an jury question, jury may is a and that convict on such alone.

III produced record, Defendant has no facts of way newly- of a motion new trial based on indicating otherwise, discovered evidence or for Nero’s existed at the Instead, time of trial. he asserts that it would be incredibly naive to believe that there was neither incipient deal; an actual nor if no there was Bazemore, (1962). People 74; 25 Ill 2d 182 NE2d 649 Fuller, People 395 Mich 236 NW2d 58 v Zesk, 14 NW2d 808 People v Atkins Opinion of the Court bargain trial, actual at the time of Nero and the prosecutor knew there would be one within a short period prosecutor of time. The maintains there was no at the time of defendant’s subsequent trial, charge and that dismissal of the against factors, Nero from resulted several some of which had no relation to defendant’s Nero, trial. says during prosecutor, property returned the stolen breaking entering impor- and, most tantly, by testifying "blew his cover” at this trial and others so as to be of no further use in under- cover work. atypical

It would be if an addict-informer did not expectation have an coop- of consideration for his given eration in a case. The well of informer cooperation dry would soon run if law enforcement consistently policy adhered to a of no considera- paternalis- Furthermore, tion. we would not be so jurors tic as to believe that are not well aware of these facts of life. accomplice co-conspirator

Where an has been granted immunity or other to secure his testimony, upon prosecutor is incumbent judge, and the trial if the fact comes court’s upon attention, request to disclose such fact to the requirement of defense counsel.10The same applicable of disclosure should also be if reasona- expectations, opposed promises, ble of leni- ency testifying or other rewards for resulted from prosecutor. contact with the It has been held to be process prosecutor a denial of due for a not to against correct the of such a defendant, where the witness testifies that he has promised been no consideration for his prosecutor and the knows this statement to be Nettles, People App v Love, 186 NW2d 365 App 215; 43 Mich 199 NW2d 845 App NW2d (1972). Evans, People 397 Mich 163 Opinion by disclose, prose- false.11 In this regard duty entity, cutor’s office treated as an and the has been if unknown promise attorneys, of one of its even case, has trying assistant been attributed to the state.12

However, thing to require is one disclosure of leniency) facts which (immunity or should weigh assessing in credibility. witness’s It is quite require another "disclosure” future Indeed, possibilities jury’s speculation. if for the that, required were to volunteer al- though he agreement, there no intended to recommend sort of for some consideration a wit- ness because testifying the witness was this and other past misdeeds, cases or had corrected his vouching could this not viewed as witness’s credibility? required The focus of disclo- sure not on which motivate a may prose- factors witness, cutor dealing subsequently with but rather on facts which motivate witness in latter, giving testimony. certain Of the this jury was made by well aware means the thorough probing and cross-examination by defense counsel. Affirmed. J.,

Kavanagh, Coleman, C. and Williams and JJ., Fitzgerald, concurred with J.

Levin, J. (concurring). Clarence Atkins was con- victed of the sale heroin on the testimony of Nero, informer, Edward a police who said that he purchased the narcotic from on Atkins March 1971.

At the buy, time of the charges Nero faced for a January 1971 breaking entering. Atkins 11 Illinois, Napue 264; 1173; 360 US S Ct L Ed 2d 1217 States, Giglio See v United 405 US S Ct 31 L Ed 2d v Atkins Opinion August 12, was convicted on 1971. On November 29, 1971, court entered order of nolle prosequi breaking entering charge on the on prosecutor’s representations the stolen property had been returned and Nero had "ren- great dered assistance in area narcotics including testimony traffic” pleas which had "resulted in regarding and convictions narcotics viola- tions”. trial,

At Atkins’ Nero he denied that had been promised leniency. police

Nero offered to become a informer in the fall sentencing 1970 after he was convicted and before placed offense;

for a theft he was on probation for that offense. nol-prossed subsequently breaking and en-

tering apparently offense was committed in viola- probation. tion of a condition of Nero’s testi- Nero using drugs fied that he was at the time of the purchase from Atkins. history amply

Nero’s addiction narcotic probed at the trial. He that said he renewed the use of narcotics in connection with his work as an necessary appear informer it as was be buys drug addict to make from dealers. He was not using drugs at time the of trial. closing arguments

The were not transcribed. We, therefore, do not know how this case went to jury. the pendency breaking entering and

charge jury. was made known to the Defense man, counsel declared: "With this kind think I argue possibility, that there is the this a protest and I intend to very strongly, might that in his mind there may argued deal”. Defense counsel have without by or contradiction that despite justi- the lack of a formal Nero 397 Mich by Opinion the people for he testifying expected by fiably treatment. might obtain favorable of defense In of that statement the context closing argu- record failure to counsel and the reversible error ments,1 predicate I cannot conviction. in affirmance of defendant’s concur I prima that a facie colleagues agree my I with uncorroborated testi- on the case be made has reason fabricate mony of a witness who regard this testimony and that no distinction interested between wit- properly can be drawn particu- addict informers generally nesses lar. a cau- that, request for agree also absent

We instruction, obliged to is not judge a trial tionary special scrutiny jury regarding instruct testimony. give should informer requested, judge is If such an instruction prosecution it. An informer give should facing, drugs in violation of law an offense or use of whose is tolerated probation and of a condition as an motive to fabricate authorities has same 392 Mich People McCoy, See accomplice. 220 NW2d Atkins is not entitled to agree I further Lee, up People v take where we left off in We should (1974): 618, 630-631; 218 NW2d arguments apparently recording closing not an of practice Michigan’s "Waiver courts, judging from a number in trial uncommon appeals If this failure to record have raised the issue. of recent which unfairness, remedy in lies record constitutes then the entire scheme, statutory verbatim and court rule to make amendment of the mandatory proceedings criminal at trial all of the entire records trials. Without announce our the court rule hereby expressing opinion on the matter we an an amendment intention to consider whether such would be in order.” Atkins Opinion by breaking simply trial

new because the and enter- ing charge against dismissed. Nero was

Rewarding accomplices and informers with leni- ency exculpation transgressions for their exchange law in and evidence to person accepted prosecuto- convict another is an practice. rial

Atkins did not move for a new trial or for an evidentiary hearing might whereat he seek to arrange- establish that there was an undisclosed breaking ment with Nero. The dismissal of the entering charge charge proba- and the failure to tion violation do not in and of themselves establish pursuant agree- that such concessions were to an ment.

Although support the record does not a conclu- agreement, sion probability that there anwas understanding.2 is that there awas tacit question I the usefulness of a distinction be- (immunity tween the "disclosure of facts or leni- ency) weigh assessing which the should " credibility” witness’s 'disclosure’ of future possibilities jury’s speculation”. for the Some fu- possibilities may, appear ture indeed, so extrava- gant will, as to however, be fanciful. Others have substantiality sufficient to induce ex- "reasonable pectations, opposed promises, other rewards” and motivate fabricated testi- mony. Appeals

The United States Court of for the Sixth Circuit said:

2My colleague writes: atypical expecta- "It if would an addict-informer did not have cooperation tion of informer given consideration for his in a case. The well of cooperation dry would soon run if law enforcement consist- ently policy Furthermore, adhered to of no consideration. we would paternalistic jurors be so as to believe that are not well aware of facts of life.” these 178 397 Mich 163 Levin, Opinion by J. admissible; immunity are

"Concededly promises of are, however, ques- they rarely Inasmuch as the made. testifying falsely tion motive for involved is the prosecuting witnesses, therefore the state of mind the acts or relevant evidence is not alone attitude of attorney anything else that would district but light upon prosecuting throw witnesses’ state of proper, mind. It either entirely is therefore cross- himself, otherwise, or examination of the witness hope part only show a belief or on his that he even sentence, immunity lighter any secure will or a other treatment, testimony, favorable in return for his that, too, fully even if it conceded that he had not slightest any or word of the basis from act district attorney hope. despite fact such a belief or The entered, plea guilty long since the witness had not sentenced, yet tending proper been evidence show hope (Emphasis the plied.) sup- existence of such or belief.” (CA States, 644, 6, Farkas 647 v United F2d 1924).3

II Supreme United States Court said: principle knowingly "The that a State not use evidence, including testimony, false false to obtain a conviction, implicit any concept tainted of ordered liberty, testimony goes only apply merely does not cease to because the false credibility of the witness.” Illinois, Napue 264, 269; 1173; v 360 US 79 S Ct 3 L Ed (1959). (Emphasis 2d 1217 supplied.) " * * * deception jurors by deliberate of a court and presentation incompati- of known false evidence is * * * 'rudimentary justice.’ ble with demands of In Napue Illinois, (1959), said, v US 264 we same '[t]he States, (CA 9, 1963); v Accord: Thurman United 316 F2d 205 State, 302, seq. People (Alas, 1970); Whitton v 316 et 479 P2d Pantages, Kent, 890, 237; (1931); 577; State v 212 Cal 297 P 4 ND 62 NW also, States, See Alford v United 282 US 51 S Ct 75 L Ed 624 Atkins Opinion by State, although result soliciting obtains when evidence, go

false it allows uncorrected when appears.’ Id., 269. at " * * * understanding any evidence as to a be relevant prosecution future would to [the credibility jury and the was entitled to know witness’s] it.” (Emphasis supplied.) Giglio States, v United 405 (1972).4 150, 153, 155; US 92 S Ct 31 L Ed 2d 104 We all with the same A begin premises. prosecu- tor has an affirmative to disclose to duty any promise He leniency. has same duty of disclosure regarding expectations, reasonable as opposed promises, to or other rewards for testifying.

We agree further that a prosecutor violates this duty if he to fails correct false evidence that a witness has been promised not consideration for his testimony.

A provides false if evidence his testi- mony gives a false A impression. a position impression to correct a false may not it to knowingly go allow uncorrected. prosecutor’s

The duty affirmative to disclose facts which tend to affect credibility extends to tacit understandings as well as concrete agree- 4 Carter, (1976), In State v NJ A2d the trial judge finding representations trial denied a new that the made police sponses and, promises” officer "were not concrete therefore the re prosecution’s perju witnesses "did not constitute clear testimony.” Supreme reversed, Jersey stating rious that can be is Court of New * * * "Regardless representations of whether made to Bello promises purpose proving perjury, characterized for the they testify favorably clear that have could motivated Bello to the state.” The Court added that an officer’sassurances that he would relay "cooperation appropriate state witness’s with the obviously convey authorities to intended to [the witness] expect notion that he could favorable treatment as to his own crimi Therefore, nal promises involvements. when testified that no [the witness] except protection, had been made to him that the trial prosecutor having knowledge of assurances to [the officer’s] [the witness], obligation had an to disclose this information to the court and to defense counsel.” Mich Opinion by J.- to to false evidence merits. His allow obligation supplement he that go requires uncorrected that a witness has told a if he aware record jury. truth mislead partial to duty the court correct lawyers All have a Disciplinary to be false. Rule testimony they know 7.102(A) representation of a provides not: lawyer client a shall "(3) knowingly to disclose that which Conceal fail required by

he is to reveal. law "(4) testimony or perjured false evi- Knowingly use ” (Emphasis supplied.) dence. 7.102(B) obliges who lawyer Rule

Disciplinary establishing that his clearly receives information person upon has a fraud "perpetrated client rectify his client the same upon tribunal” call and, refuses, if he the fraud to the "reveal person affected or tribunal”. to special

A a disclose all duty has support to or contra- the evidence whether tends prosecution: vene the is, only legitimate object prosecution the 'to "The transaction, was, the as it whether its

show whole guilt prose- tendency be to or innocence.’ The establish interest, cuting represents public the can officer which promoted by the the innocent. never be conviction of court, simply the object His that of should be like right any pride this to justice; and he has no sacrifice strong professional And be his success. however that, guilt, prisoner’s must belief of he remember doing though may happen unfair to result means case, prisoner particular yet, justice justice in the attained, com- unjust dangerous is to the whole so munity.” (1872). People, Hurd v 25 416 Mich by accomplice-informer A statement 181 Atkins Opinion by promise no that ing although to him is has been made mislead- positive promise

no has been made if expectation he has a reasonable wholly other reward. The statement true as expectations, expectations it conceals the witness’s by granting practice fostered concessions to accomplice-informer apparent pur- witnesses. pose knowing and a concealment failure to jury. correct the is to record mislead Michigan jurisprudence fully supports civil " Benson, 3 'silence-fraud’ rule”. Williams v Mich App 9; 141 NW2d 650 early Kenyon case, Woodruff,

In an 33 (1876), approved 310, 314 this Court instructions allowing recovery representation for fraudulent stating particularly directly "in what was part stating untrue and also in but of the truth in respect supplied.) (Emphasis to other matters”. Ulrich, 218, 229;

In Sullivan v 326 Mich (1949), this NW2d Court held that a seller had misrepresentation purchaser a where, made although ato tendency truthful, the answers were convey impression”. was to a "false necessary pre- "Failure to fact disclose material impression positive vent a false is as much a fraud as misrepresentation. It is pretenses not essential is accomplished expressed which fraud Michigan Marston, words.” App National Bank v 99, 104; NW2d Michigan, fiduciary relationship, "In even without a responses inquiries naturally Where "were in such form as plaintiffs proceed tended to reassure and to them cause on the were, assumption” they actually the facts were different than creating "the concealment of the true facts and impressions the deliberate false equivalent express and inferences is the of an and inten misrepresentation.” (Emphasis Opsata, supplied.) Groening tional v (1948). 73, 82; 323 Mich 34 NW2d 560 Co, 424, Similarly see Wolfe v A E Kusterer 269 & Mich 257 NW 729 163 397 182 Opinion by making diligence in use party duty is under a partial disclosure complete facts where disclosure plaintiff. mislead the impressions and may convey false considered to be are half-truths or non-disclosures Such concealment of facts therefore, misrepresentations. and, 73; 34 560 Groening NW2d Opsata, Halsey, Iowa v Co of Equitable also Life Insurance See 410, 425-426; 85 L Co, 61 S Ct Ed Stuart & 312 US Torts, James, pp (1941); The Law Harper & (1956).” Inc, Supp Librascope, F 586-588 743, Strand 1961).6 (ED Mich, Ill prosecution agreement with a If there is an jury. witness, it must disclosed charges of law If there is no lodged against the or could be violation have been witness or sentencing deferred, has been prosecutor has refrained from similar cases the charge sought prosecuting granted reduc- or has sentencing who witnesses tion truth, partial truth taken out of context and used "A as well as a deceive, representation.” false is an actionable as bait to defraud and Michigan, Inc v Nationwide Mo Nationwide Motorist Association (WD 1967). Mich, 875, Association, Inc, Supp torist 273 F Inc, Fibres, Schwartz, Similarly, Inc v & see United States Proctor 1972). (ED 449, Mich, Supp 358 F 480-481 princi- the relevant The Restatements of Torts and Contracts state ple: "(2) duty party is to disclose to a business transaction under One the other before the transaction is consummated "(a) of a as the other is entitled to know because such matters fiduciary between similar relation of trust and confidence or other them; and "(b) necessary to be matters as he knows or believes such additional being misleading; from prevent partial the facts statement of * *** 11), (Tentative p Torts, 42. § Draft No 2d .” Restatement may respect to the facts A statement be true with "Half-truths. necessary prevent stated, qualifying may to include matter but fail respect implication to other of an assertion that is false with the facts. For occurred changed recently example, has a true statement that an event may carry implication has not the false that the situation misleading its occurrence. Such a half-truth be as since Contracts, 2d wholly false.” Restatement assertion as an (Tentative b, p 11), 7. comment Draft No § People 183 v Atkins Levin, Opinion by J. prosecution,

assisted the those facts and their significance fully explained disclosed should jury. the to by prosecutor

Absent a statement the in the presence jury’s acknowledging accomplice-in- that leniency may former or witnesses obtain other agree- and, concessions ment while there is no formal may case, with the in the instant he justifiably expect leniency, some a denial that agreement leniency likely there is an for is to impression create a false mislead the jury. assumption juries

The know that an accom- plice-informer telling partial witness is truth when he there by denies prosecutorial

is controverted efforts to confine scope inquiry promises.7 actual In all judge knowingly events, a should not allow a partial go truth to uncorrected. practice granting leniency accomplice- judges,

informer witnesses is well known to trial appellate. Judges frequently charge allow re- grant sentencing leniency duction and to such case, witnesses to assist law enforcement. In this judge granted prosequi prosecu- a nolle on the representation tor’s that Nero had assisted in obtaining convictions. judge, practices,

A aware of such aware of the expectations accomplice-informer witnesses and they justified by that fact counsel, are in a measure what request by

occurs, should, without a defense require by a statement practice judicial my notice, either take as in 7 Mata, People 337; v App (1976); See 68 Mich 242 574 NW2d Nettles, People People 215; (1972); v App 41 Mich v 199 NW2d 845 Dupuie, People (1974); Taylor, App v 52 Mich 217 902 NW2d 46 People Crutchfield, App 259; Cf. Mich 207 899 NW2d Spruell, App (1975); App NW2d 61 Mich 632, 233 NW2d Opinion of, defendant permit colleague’s opinion, prove, practice.8 juncture same at approximately

We are accomplice-informers regarding concessions to disclosure of regard recently in were until we time ago short A concessions. plea-bargaining acknowledge, to a defendant bad form for any prom- "have question, response judge’s was a plea there you?”, been made to ises accept refuse to even judge might bargain. The responded, truth- if the defendant plea guilty bargaining; plea had been fully, there bargain were plea defendants to order obtain to it. expected deny accomplice- practice granting fully on the spread should

informer witnesses record. Williams, J.,

Kavanagh, J., concurred C. Levin, J. with JJ., in the Ryan, part took no

Lindemer this case. decision of necessary principal trial divert from It should not be provide opportu guilt defendant with or innocence

issue nity system justice prove knowledgeable of the criminal what those are all aware.

Case Details

Case Name: People v. Atkins

Court Name: Michigan Supreme Court

Date Published: Jul 8, 1976

Citation: 243 N.W.2d 292

Docket Number: 54998, (Calendar No. 2)

Court Abbreviation: Mich.