Following a jury trial in Otsego Circuit Court in 1982, defendant was convicted of delivery of cocaine, MCL 333.740l(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii), and was sentenced to a mandatory twenty- to thirty-year prison term. Defendant appealed his conviction as of right, and this Court *671 affirmed in an unpublished per curiam opinion on July 10, 1984, (Docket No. 65159).
Defendant sought leave to appeal to the Supreme Court. In lieu of granting leave to appeal, the Supreme Court vacated this Court’s judgment and reversed the order denying defendant’s motion to remand.
On remand, after an evidentiary heаring and oral argument, the circuit court issued a written opinion, finding that the defense witness was not improperly threatened or intimidated from testifying.
The case is now again befоre this Court, limited to the issue of whether potential defense witness Theodore Rhode was intimidated from testifying. Having reviewed the proceedings below and the trial court’s findings, wе are satisfied that defendant was accorded a fair trial and that no violation of his constitutional rights occurred.
Drug charges were filed against both defendant and Rhode for their participation in a sale of cocaine. Rhode was convicted by jury, but, at the time of defendant’s trial, had not yet been sentenced. Defendant asserted a defense of "mere presence,” on the basis that he had no connection with the drug transaction.
Prior to defendant’s trial, his attorney, James L. Feinberg, antiсipated calling codefendant Rhode as a defense witness. After the prosecution rested, Feinberg announced at a conference in chambers *672 that he would call Rhode as a witness. The assistant prosecutor informed Feinberg that he would use statements given by Rhode in his presentence report if Rhode’s trial testimony differеd from his version of the offense in the presentence report.
Feinberg discussed the presentence report, and its implications, with defendant and Rhode. Feinberg аdvised Rhode that impeachment of his testimony would hurt defendant, and that the prosecutor could bring perjury charges against him if his testimony substantially differed from the presentence report. Rhode’s attorney, Gail Benson, also discussed with Rhode the potential for a perjury charge. The trial court found after the evidentiary hearing that it had been agreed among both defense attorneys, as well as Rhode and defendant, that Rhode should not testify on defendant’s behalf. Rhode testified that it was his decision not to tеstify at defendant’s trial, but the trial court found that Feinberg feared jeopardizing his case if Rhode testified and was impeached. The trial court concluded that the deсision not to call Rhode was based on trial strategy.
Defendant argues that Rhode was intimidated from testifying by prosecutorial threats to reveal the confidential informаtion Rhode had given to his probation officer in preparation of his presentence report. Defendant argues that, although the prosecutor did not threaten Rhode directly, the threat of impeachment and a possible perjury charge was conveyed from the prosecutor to Rhode via defense counsel Feinberg. Defendant asserts that use of information in a presentence report violates the statute calling for this information to remain confidential.
MCL 791.229; MSA 28.2299 provides:
All records and reports of investigations made *673 by a probation officer, and all case histories of probationers shall be privileged or confidential communications not open to public inspection. Judges and probation officers shall have access to the records, reports, and case histories. The probation officer, the assistant director of probatiоn, or the assistant director’s representative, shall permit the attorney general, the auditor general, and law enforcement agencies to have acсess to the records, reports, and case histories. The relation of confidence between the probation officer and probationer or defendant under investigation shall remain inviolate.
This Court has previously recognized that this statute, preserving the confidentiality of presentence reports, may directly confliсt with the equally protected rights of confrontation and impeachment through use of prior inconsistent statements.
People v Rohn,
We hold only that when reсords of prior inconsistent statements of witnesses are necessary for effective cross-examination, they should be made available to the defendant. An in camera inspеction procedure should be utilized by the court to limit disclosure to those statements materially inconsistent with the witness’ testimony. [Id., 600.]
The issue in Rohn was whether a defendant could use statemеnts in a presentence report to *674 impeach prosecution witnesses. In the instant case, the issue is whether the prosecutor may use presentence-rеport statements to impeach a defense witness. Impeachment of witnesses by their prior inconsistent statements is an important cross-examination tool whether the witness is for the prosecution or for the defense. Assuming that the purpose of the confidentiality of the presentence report is to encourage full disclosure, and assuming the possibility of impeachment with these statements may discourage full disclosure, it matters not, in weighing impeachment versus confidentiality, whether the subsequent impeachment' comes from the prosecutor or from the defense counsel. To the convicted person, the threat of a possible breach of confidеntiality is the same. The very limited breach of confidentiality sanctioned by Rohn is no greater a breach when the prosecutor uses the information for impeachment than when the defense counsel does.
Moreover, the statute specifically instructs the probation officer to permit the Attorney General and law enforcеment agencies to have access "to the records, reports, and case histories.” As the trial court noted, the statute, while specifying that the case reports are not to be "open to public inspection,” still permits judges, probation officers, and law enforcement agencies to have access to thеm, apparently distinguishing the latter from the general public. We do not disagree with the trial court’s conclusion that the Legislature contemplated the use of this information by the various officers enumerated in the statute. Cf.,
Havens v Roberts,
Defendant points out that prоsecutorial intimidation of a proposed defense witness has consistently been regarded as improper by our state and
*675
federal appellate courts.
People v Pena,
However, courts have distinguished these cases based on whether the prosecution directly contacted or threatened the potential defense witness. United States v Teague, 737 F2d 378 (CA 4, 1984); United States v Whittington, 783 F2d 1210, 1219 (CA 5, 1986). In this case, no threats were made to witness Rhode which could be attributed to the prosecution. We do not consider the prosecutor’s threat of impeachmеnt to be intimidation. It was the defense attorneys, not the prosecutor, who brought up the possibility of perjury with witness Rhode. Moreover, the prosecutor announced the possibility of impeachment in chambers, not in the presence of the witness or the jury, just as the Callington Court recommended to avoid the appearance of intimidation.
The trial court in this case found that the state took no action to intimidate Rhode to keep him from testifying. Nothing in the record causes us to disturb that finding. Defendant was not denied his right of due process.
Affirmed.