*1
Aрp REMAND)
(ON
v MATA
PEOPLE
op
Opinion
the Court
Jury Testimony
Drugs
of Ad-
—
to
1.
and Narcotics —Instructions
dict-Informer.
give,
sponte,
a
case to
sua
of
in narcotics
The failure
testimony
cautionary
of
ad-
special
an
instruction
not
to be received with care and caution was
was
dict-informer
during
strategy
where the defendant’s
error
reversible
put
trial.
the witness on
was
Suffiсiency
Drugs
Delivery
2.
of Heroin —
of Evi-
and Narcotics —
dence —Addict-Informer.
delivery of
credibility
in a trial for
of an addict-informer
accomplice,
jury question
heroin,
like
of an
jury
on such evidence alone.
convict
Drugs
3.
and Narcotics —Addict-Informer—Promise
Witnesses —
Leniency
Expectation
of Consideration —Disclosure
—
Jury.
delivery
jury
for
to a
at a defendant’s trial
Failure to disclose
possibility
for an
of future favorable treatment
heroin
error
in return for his
informer-addict
(1)
showing
an
actual undisclosed
been
where
by
prosecution
agreement
witness
(2)
reward,
other
while it is clear
for
of consideration for
informant-witness
cooperation,
facts
made well aware
motivat-
thrоugh
thorough
ing
cross-examination
the witness
(3)
counsel,
closing argument
was not
of defense
expected
deals
denial that he
some
misled
the witness’s
cases
him.
be made
other
[1]
[4]
[3]
[2]
81 Am Jur Witnesses
75 Am Jur
75 Am Jur
Am
Jur
2d,
2d,
2d,
2d,
References
Trial 321.
Trial §
Trial §
§
687.
§
103.
Points
Headnotes
(On
op
Opinion
M.
Inferences—Accomplices—Promise
4. Witnesses —Criminal Law —
Leniency
Jury Presumptions.
—Instructions
—
informer,
prosecution
accomplice,
A
who is
either
*2
addict, co-conspirator
person having
existing
or other
moti-
bargain
police
prosecutor concerning
vation
with
charges
presumed
or sentences
him should be
expectation
testiñed
to have
reasonable
of
form of
some
if,
leniency; in
only
such cases the сourt
so
should
instruct
if,
defense;
requested by
where the
asserts that
leniency,
the witness has no reasonable
of
the trial
judge
hearing
conduct
in the
absence of
given
opportunity
develop
both
wherein
sides should be
respect
proposed
the record with
the fairness of
such
judge
appropriate
trial
instruction
should make an
ruling thereon.
Huíf,
from
Appeal
Saginaw, Eugene Snow
(Docket
22, 1977,
Submitted February
Lansing.
77-494.)
6,
No.
Decided December
Mata
Carlos
was convicted of
heroin.
delivery of
appealed. Affirmed,
Defendant
(1976).
68
App
Mich
337
applied
Defendant
appeal
leave
Supreme Court. In
grant
lieu of
of
appeal,
leave to
of Appeals
Court
dеcision was vacated and the
(1977).
remanded,
matter
Frank J. A. General, Robert Kelley, Attorney Derengoski, Denton, E. Brady General, Solicitor Jensen, Prosecuting Peter C. Attorney, Assist- ant Prosecuting Attorney, people. for the Berg,
Rolf E. Assistant Appellate State De- fender, on appeal. for defendant J., Danhof,
Before: C. and V. Brennan JJ. App 204 Mich 206 оp Opinion On Remand Supreme our Court vacated J. The C. Danhof, disposition case, 68 Mich of earlier this the case back and remanded NW2d light to this for reconsideration Court (1976). 399 163; 243 NW2d (1977). guilty delivery found Defendant 335.341(l)(a); MCLA MSA violation heroin 18.1070(41)(l)(a) paid police testimony of a this before Court issue informant. The which judge whether in our earlier decision was concluding promises clearly that no erred for his testi- to the witness were made mony. did We concluded err. opinion issues: dealt with three *3 Atkins
The "(1) required because Whether reversal the the that sponte instruct did not sua court was to be received testimony of addict-informer caution; care and "(2) testimony of an the uncorroborated Whether a mаtter of law is insufficient as addict-informer guilt; and on defendant’s jury-submissible issue make
"(3) failure jury was misled Whether the possibility of future favorable treatment the disclose testifying defendant.” the addict-informer Mich at issue, that where the first the Court held
As to strategy put witness the the defendant’s failing trial”, no error in there would be "on special cautionary sponte give instruсtion. sua the follow- instant case discloses The record ing subsequent and discussion: instruction (On Remand) Opinion of the Court weighing "In testimony determining case, all the credibility you witnesses should take into consideration the interest or of each witness in the outcome of lack interest You the case. into take ous consideration the manner in which the vаri- given upon witnesses have their stand, opportunity they any or of them may have had subject matter for observation of the knowledge testified, which they about their honesty, memory, capacity understanding, their their proba- statements, bility bias or the case.” improbability of their and their prejudice, any, if as shown evidence "(In the jury, following procеedings the absence of had:) were "THE COURT: While still in the jury box and before had retired to its commence delibera- tions, counsel for called to the both sides bench and asked if there any objections were to the charge tions which either any requests of the Court or further for instruc- present.
counsel desired time, "At the Court understood that counsel they both stated had no further instructions objections charge stated; correct, is that gentlemen? correct, "MR. attorney]: MARTIN That’s [defense Honor, your on behalf of the defendant.” request by discloses no record the defendant special cautionary for a Atkins, As in instruction. strategy the defense in the instant case was to credibility attack the of the informant-witness. As we find no in- reversible error stant case.
As to issue, the second Atkins the Court held that: *4 addict-informer, "We hold that credibility the of an like accomplice, question, that of an jury is a and that jury may
the convict such alone.” Mich at 172. App op Opinion issue, in third Atkins the Court stated As part: "However, thing require disclosure of facts it is one weigh in leniency) jury which the should
(immunity or quite It credibility. another assessing a witness’s possibilities jury’s future for 'disclosure’ of Indeed, prosecutor required were if a speculation. agreement, that, he although there was no volunteer a some sort of consideration for to recommend intended this testifying was in the witness witness because misdeeds, past could had corrected other cases or vouching for that witness’s credi- this not viewed required is not on factors disclosure bility? focus dealing a subse- may motivate which witness, but rather on facts which quently with a giving testimony. Of the certain motivate the witness latter, aware means of jury this was made well by defense thorough probing cross-examination 397 Mich at counsel.” showing Atkins, of an has been no
As in there agreement or mаde undisclosed actual prosecution While is clear reward. other the instant case had ex- informant-witness cooperation, pectation we for his of consideration of the aware well believe thorough motivating through the witness facts closing argument of defense cross-examination counsel. opinion concurring Justice
In his wrote: Levin
"Although
support
does not
a conclusion
record
is that
agreement,
probability
understanding.
there was
tacit
between
question
"I
the usefulness of
distinction
(immunity
leniency)
which
the 'disclosure of facts
credibility’
assessing weigh witness’s
*5
People
(On Remand)
v
209
Opinion op the Court
'
possibilities
jury’s
"disclosure” of future
for
speculation’.”
accomplice-informer
"A statement
witness that
misleading
no
has been
to him
made
al-
though
positive promise
has been
if he
has a
leniency
reasonable
statement
expectations,
or other reward. The
wholly
is not
as it
true
conceals the witness’s
expectations
practice
fostered
granting
accomplice-informer
concessions to
witnеsses.
apparent purpose
knowing
concealment and a
jury.”
failure to correct the
is to
record
mislead the
witness,
agreement
prosecution
"If
there is
with a
jury.
must be disclosed to the
agreement
"If
charges
there is no
lawof
violation
lodged against
have been
could
or
the witness or
deferred,
sentencing has been
and in similar cases the
prosecuting
refrained
from
or has
granted
sought charge
reduction or
in sen-
tencing
prosecution,
for witnesses who assisted the
significance
fully
those facts and their
closed and
should be
dis-
explained
jury.”
at 177-183.
Mich
Crawl,
In
V. J. Brennan, (concurring). Kelly, concur I majority principally because result reached I cannot conceive how trial courts the unworkable mandate implement reasonably People 163; NW2d 292 which High court itself out of its own text. condemns decisions which arrive through tortu- sometimes pronouncement process at a of new ous dialectic legal principles courts should not be cast on lower apply retroactively. April 5, Mata was releаsed
Our decision following Supreme July the Court decided (On People by M. J. v Atkins. The Atkins for which we issue are ordered to is "whether reconsider Mata possi- misled a failure to disclose bility of future favorable treatment for the addict- testifying against informer defendant”.
at 167. The Atkins Court discusses the issue any Can context of Federal "trend”. requiring cautionary doubt that instruction on expectations subjective the basis of informer’s is innovative?
Although rules, forth Court broad set application made no of those rules in the case before it. The distinction between ex- "reasonable pectations” possibilities” and "future is nebulous.1 present Cooper case, In the one Thomas testified any promises he did nоt receive exchange for his or work an infor- expect any mant, nor did he deals. At the eviden- hearing, tiary any promises held to if determine given, following exchange been place Cooper took between and defense counsel redirect examination:
"Q explain you Can to the hoping me difference of the casе disposed would be favorably having of and expectation that the disposed case would be of favora- bly? Well,
"A
since I
me,
don’t
a dictionary
have
I
can’t define the two
you.
words for
"Q
A
Okay.
ago you
few minutes
stated that at the
you
time
in
stated
the
you
Mata trial —at
time
testified under oath
to be
you
that
did
expect
not
some deals
in
cаses,
made
in
future
those
that
that
Now,
statement was not
regards
true.
in
Mr.
to
Den-
mentions,
majority
The
here
analyze,
does not
another Atkins
imponderable
"expectation of consideration”.
If we
follow
direc
—
leading,
tion in
apparently
which Justice Levin is
consideration is
key
(1977).
Crawl,
1, 34, 35;
word. See
Mich
ton’s you statement, made statement was true. that is true it reads. "A The statement as "Q It true? was you words, If statement true.
"A read the is again. you Okay, try direct examination "Q let’s On trial, you in the that the time testified stated that future at expect to be made in the you any not deals did cases; that your pending Then that statement cross-examinatiоn, stated, 'Oh, you true. asking true.’ in the Mata case was I’m my testimony examination, you at the time again, on direct you testified expect any you case that did not the Mata future, testimony true the time in the was that deal or not? true it reads.
"A The is statement you that it "Q Was it true at time January 25 true then? "A Yes. assurances, representations by the "Q So these these Squad, Newvine or Sho- the statement Officer Vice your that Denton had said cases wouldn’t be Brady
bert cases, you testified in these disposed of until after might expect didn’t to there be you lead in the future? deal future, any
"A deal in the There was no. "Q you expect might Did be that lead going stopped 'Everything in the is
deal your cases, future? your testimony cases nаrcotics these you, Cooper.’ and then we’ll take care of Mr. you expect does a deal in future? That not lead "A No.” ex- apparent from above difficulty logical inference that a rea-
change. If there is from sonable resulted Atkins prosecutor, appears with the contact (if it attention) to disclose such fact comes *8 (On People 213 2 jury. prosecutor required Was the to disclose to Cooper expecta had a "reasonable despite leniency” Cooper’s testimony tion of to the contrary? majority opinion in Atkins does not require possibilities”, disclosure of "future appears expec disclosure of "reasonable еvidentiary hearing, Cooper At tations”. said hoped leniency. that he promises that he would receive If no leniency made, had been is disclosure prosecutor by the of the witness’s reasonable ex pectations possible? leniency? plea leniency bargain?
What is Is Is leniency prosecutor’s proba- recommendatiоn of county jail, tion or of a sentence a recom- Michigan Training spe- Unit, mendation to the cific recommendation for a minimum term of years? light What is reasonable? Is it in the of how past? the witness has been treated Is it charges being reasonable to assume that held in abeyance dropped? will be whom; Reasonable to prosecutor, the ney, witness, to the defense attor- judge?
to the trial
play
play
Should this
within a
unfold before the
hearings,
or should we add to the Robinson
hearings,
hearings,
the Tucker
the Walker
hearings,
McCoy hearings,3
Luck-Farrar
etc.,
hearing
question
an Atkins-Mata
where the
of a
leniency”
witness’s "reasonable
can
McCoy,
(1974),
(1965),
same
v
tive
Tucker,
189
3People Robinson,
2
"We
United
promises,
Levin
Justice NW2d 290
duty
duty
People
People
all
19
States,
begin
v
disclose to the
disclosure
v
v Walker
(1971),
Farrar,
with the same
App 320;
121 US
231;
(concurring) Atkins, supra,
If I were called suggest procedure, I would the follow- rule of application: prospective ing declare it to be prosecution witness, informer, whether an 1. If a person co-conspirator accomplice, addict, or other existing bargain having with the motivation to an concerning charge(s) prosecutor police or sen- gives testimony impli- pending against him,4 tence presumed cating another, testified he is to have expectation of some form of a reasonable with leniency. shall so instruct In such cases court only requested by if, if, the defense. has asserts that the witness
2. If the leniency, the trial no reasonable hearing judge in the of the shall conduct a absence op- given "both sides should be wherein respect portunity develop to the the record with proposed instruction”, fairness of such a p supra, 171, make an shall ruling appropriate thereon. procedure appli-
Obviously if the had been above acquies- Mata, of Carlos counsel’s cable trial necessarily that a warrant be issued This complaint and should be or an information or indictment be investigative broadly by the trial court to include the construed process point process if such has evolved to a where upon potential as a defendant. been focused (On Concurrence M. J. cence the trial court’s instructions would re- quire impose affirmance. To hold otherwise would obligation part of awareness on the emerge court a Federal "trend” would later Michigan precedent requiring giving become unrequested cautionary instruction —-an intoler- able burden. majority.
I concur result reached