PEOPLE v REED
Docket No. 102651
Supreme Court of Michigan
Argued October 10, 1996. Decided December 30, 1996.
453 Mich 685
Dоcket No. 102651. Argued October 10, 1996 (Calendar No. 16). Decided December 30, 1996.
Ferandal S. Reed was convicted by a jury in the Detroit Recorder‘s Court, Beverley Anne Jasper, J., of first-degree felony murder and assault with intent to commit armed robbery. The Court of Appeals, DOCTOROFF, C.J., and WAHLS and MURPHY, JJ., ordered remand to provide the defendant an opportunity to move for a new trial on the ground that he had been denied effective assistance of counsel (Docket No. 145406). Following a Ginther hearing, the trial court denied the motion. The Court of Appeals, CONNOR and J. F. KOWALSKI, JJ. (WEAVER, P.J., concurring in the result only), reversed in an unpublished opiniоn per curiam, holding that the trial court had an obligation to give a cautionary instruction regarding accomplice testimony, and that the failure of defense counsel to request the instruction constituted ineffective assistance of counsel. The people appeal.
In an opinion by Justice MALLETT, joined by Chief Justice BRICKLEY, and Justices BOYLE and RILEY, the Supreme Court held:
A cautionary instruction on accomplice testimony should not be given when the testimony in dispute came from a codefendant in a joint trial who would have been prejudiced by such an instruction.
- While a trial judge may have an obligation to give a cautionary instruction sua sponte on accomplice testimony in certain situations, in this case, the trial judge properly could not have given a cautionary instruction because a codefendant took the stand in his own defense during a joint trial. Any cautionary instruction would have asked the jury to view the codefendant‘s testimony with suspicion and would have prejudiced his defense, constituting error requiring reversal.
- The failure of the defendant‘s trial attorney to request a cautionary instruction did not constitute ineffective assistance of counsel. The defendant did not show that counsel made errors so serious that he was not functioning as the counsel guaranteed the defendant by the Sixth Amendment, nor did he show that deficient performance prejudiced him so as to deprive him of a fair trial. Even if a cautionary instruction had been requested, the court
properly could not have granted it because it would have undermined the codefendant‘s defense. No Michigan authority has held that such an instruction can be given in this situation.
Reversed in part and remanded.
Justice LEVIN, joined by Justice CAVANAGH, dissenting, stated that the potential prejudicial effect of the jury instruction with respеct to Servant of an accomplice instruction concerning his testimony does not reduce the prejudicial unfairness to Reed in denying him the benefit of such a cautionary instruction.
Codefendant Servant, facing a mandatory nonparolable life sentence, was under enormous pressure to save himself by shifting the blame to someone else. That pressure was at least as great as the pressure on a codefendant who has the safety net of charge or sentence concessions granted by a prosecutor in exchange for his testimony. There is, thus, no less neеd for a cautionary instruction simply because Servant was a codefendant and had not been offered concessions in exchange for his testimony by the prosecutor. The unfairness to Reed and the separate unfairness to Servant had such an instruction been given, could have been avoided by separate trials or possibly by separate juries. The unfairness was exacerbated at the joint trial by reading to the jury the extrajudicial hearsay statement of Servant accusing Reed of instigating the slaying of the victim and by reading Reed‘s extrajudicial statement accusing Servаnt of being the shooter.
Leave to appeal in Servant and leave to cross appeal in Reed should be granted, and disposition of Reed deferred until decision in Servant and decision on Reed‘s cross appeal.
Justice WEAVER took no part in the decision of this case.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O‘Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Joseph A. Puleo, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Susan M. Meinberg) for the defendant.
MALLETT, J. A jury convicted defendant of first-degree felony murder and assault with intent to commit armed robbery. The Court of Appeals reversed the convictions, holding that the trial court had an obliga-
I
Isaac Robbins, Jr., was shot fatally at the home of the defendant‘s parents. In a joint trial,1 defendant and codefendant, Willie O. Servant, were found guilty of first-degree felony murder and assault with intent to commit armed robbery.
The prosecution‘s theory of the case was that the defendant and Mr. Servant lured Mr. Robbins to the home on the pretext that Mr. Robbins would be able to make a cocaine sale. Relying in part on a statement that Mr. Servant gave the police, the prosecution attempted to show that the parties intended to rob and shoot Mr. Robbins when he arrived.
The defendant did not testify. Defendant had, however, earlier provided the police with a statement that
Mr. Servant testified in his own defense, and his testimony differed from defendant‘s statement. According to Mr. Servant, he and defendant did discuss robbing Mr. Robbins, but Mr. Servant had decided against participating in the crime. Knowing that a robbery would take place and that it would involve a shooting, but not wanting to be part of those events, Mr. Servant went to his girlfriend‘s house for about an hour. He returned to the home of the defendant‘s parents just in time to hear a shot and see the victim leave the house. A moment later, the defendant and Roy Johnson came out. Mr. Johnson pointed a gun at Mr. Servant and told him to go into the house. Mr. Johnson then threatened Mr. Servant, warning him that if he mentioned the incident to anyone, he would be killеd. Mr. Servant said that he falsely confessed to the police out of fear of Mr. Johnson.
A police witness also provided to the jury a statement that Mr. Servant had earlier given the police. In this statement, Mr. Servant admitted that he and defendant planned the robbery and the shooting. Mr.
Following the defendant‘s conviction and sentence, he filed an appeal of right in the Court of Appeals. Later, he persuaded the Court to remand this case to the trial court to аllow him to move for a new trial on the ground that he had been denied the effective assistance of counsel.2
At the Ginther3 hearing, one of the issues concerned the trial counsel‘s failure to request a cautionary instruction regarding accomplice testimony.4 The
In response, the defendant‘s trial counsel testified that he had not asked for a cautionary instruction because Mr. Servant was not a witness for the proseсution. Further, counsel knew that the court would be instructing the jury that it must consider the guilt or innocence of each defendant separately.
The trial court found no ineffective assistance of counsel, and denied the motion for new trial.
The Court of Appeals reversed the defendant‘s convictions.5 The Court first said that the defendant‘s “conviction and sentence for both felony murder and the underlying assault felony constitutes double jeopardy.”6 However, the Court of Appeals said that the double jeopardy issue was moot in light of its decision to reverse on an instructional ground.
Addressing the failure of trial counsel to request a cautionary instruction rеgarding accomplice testimony, as well as the trial court‘s failure to give the instruction sua sponte, the Court of Appeals stated:
We find that the failure of defendant Reed‘s attorney to request the accomplice instruction constituted ineffective assistance of counsel. Our review of the record reveals that the failure to make this request was not a matter of trial strategy, and that defendant Reed was unfairly prejudiced
We granted the prosecutor‘s application for leave to appeal аnd ordered the defendant‘s application for leave to appeal as cross-appellant to be held in abeyance.
II
In People v McCoy, supra, this Court created a rule that a trial judge may have an obligation to give a cautionary instruction sua sponte on accomplice testimony in certain situations. We stated:
For cases tried after the publication of this opinion, it will be deemed reversible error to fail upon request to give a cautionary instruction concerning accomplice testimony and, if the issue is closely drawn, it may be reversible error to fail to give such a cautionary instruction even in the absence of a request to charge. [392 Mich 240.]
This rule is motivated by the inherent weakness of accomplice testimony that is presented by the prosecution. The problem with such testimony is twofold.
McCoy requires a court to give a cautionary instruction on accomplice testimony when requested, but it does not require automatic reversal when a case is “closely drawn” and a judge fails to give such an instruction sua sponte.9 Rather, McCoy states that such a failure to instruct may be error requiring reversal. This Court has never established standards for evaluating when the failure to instruct sua sponte requires reversal. In People v Atkins, 397 Mich 163; 243 NW2d 292 (1976), for example, we declined to extend McCoy to a case involving an addict-informer. One of the reasons was that defense counsel had thoroughly explored the addict-informеr‘s motivation to lie on cross-examination. Id. at 168, 171-172. Certainly, it would make little sense to require a judge to caution a jury sua sponte on a witness’ motivation to lie when defense counsel has thoroughly explored the witness’ motivations. Rather, McCoy stands for the
In this case, the problems with codefendant Servant‘s credibility were plainly apparent to the jury. At trial, codefendаnt testified that Roy Johnson had been the shooter. A police witness, however, provided the jury a statement that the codefendant had given the police. In this statement, codefendant admitted participating in the robbery and shooting the victim, but stated that defendant was the instigator. The jury was also informed that the codefendant had originally told the police that a man named Ant, driving a white BMW, shot the victim. Both the prosecutor and Reed‘s counsel explored these inconsistencies thoroughly when cross-examining the codefendant.
Also, the problems with the accomplice‘s testimony in McCoy are not present here. Unlike the accomplice in McCoy, Mr. Servant was not a prosecution witness. Rather, hе was a codefendant who voluntarily testified in his own defense. Because Mr. Servant was on trial for first-degree murder, he obviously was not the beneficiary of any favorable deals from the prosecution.10 Thus, the rationale for the obligation to instruct sua sponte does not apply in this case.
Most importantly, the trial court properly could not have given a cautionary instruction such as CJI2d 5.6. Here, Mr. Servant took the stand in his own defense.
III
The Court of Appeals also found that the failure of the defendant‘s trial attorney to request a cautionary instruction constituted ineffective assistance of counsel. We disagree.
The standard for determining whether a defendant has been denied effective assistance of counsel is stated in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984), and was adopted by this Court in People v Pickens, 446 Mich 298; 521 NW2d 797 (1994). In Strickland, the United States Supreme Court explained:
A convicted defendant‘s claim that counsel‘s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defеndant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance
In the present case, defendant has not satisfied either portion of the Strickland standard. First, defendant was not prejudiced. Even if defense counsel had requested a cautionary instruction, the court properly could not have granted the request. As discussed above, any cautionary instruction on accomplice testimony would have undermined Mr. Servant‘s defense and would have been error requiring reversal.
Second, defense counsel‘s performance was not deficient. At the Ginther hearing, defendant‘s trial counsel testified that he did not request a cautionary instruction on accomplice liability because the codefendant was not testifying on behalf of the prosecution. Before the Court of Appeals decision in this case, no Michigan authority had held that such an instruction can be given in this situation. Certainly, defense counsel‘s performance cannot be deemed deficient for failing to advance a novel legal argument.12 See Engle v Isaac, 456 US 107, 130-134; 102 S Ct 1558; 71 L Ed 2d 783 (1982).
For these reasons, we reverse in part the judgment of the Court of Appeals, and remand this case to the Court of Appeals for consideration of the issues properly raised by the defendant but not addressed in the opinion of the Court of Appeals.13
BRICKLEY, C.J., and BOYLE and RILEY, JJ., concurred with MALLETT, J.
LEVIN, J. (dissenting). The majority states persuasively that it would have been prejudicially unfair and error requiring reversal with respect to defendant, Ferandal Shabazz Reed‘s codefendant, Willie O. Servant, to have instructed the jury at their joint trial that, because Servant was charged as an accomplice, it should examine his testimony “closely and be very careful about accepting it“; to think about whether his testimony is corroborated by other evidence; to consider, when deciding whether to believe Servant, whether he gave “testimony falsely slanted . . . because of [Servant‘s] own interest“; and in general to consider Servant‘s testimony “more cautiously.”1
Thus, I am inclined to agree with the majority‘s decision insofar as it reverses the Court of Appeals on the narrow question whether the trial court should have instructed sua sponte on accomplice testimony.
The potential prejudicial effect as to Servant of an accomplice instruction concerning his testimony does
Codefendant Servant, facing a mandatory nonparolable life sentence, was under enormous pressure to save himself by shifting the blame to someone else. That pressure was at least as great as the pressure on a codefendant who has the safety net of charge or sentence concessions granted by a prosecutor in exchange for his testimony. There is, thus, no less need for a cautionary instruction simply because Servant was a codefendant and had not been offered concessions in exchange for his testimony by the prosecutor.
I
The unfairness to Reed resulting from the failure to caution the jury on the dangers of accomplice testimony, and the separate unfairness to Servant had such an instruction been given, could have been avoided by separate trials or possibly by separate juries.
Both Reed and Servant sought separate trials. The Court of Appeals, on first consideration of Servant‘s appeal, ruled that a separate trial should have been granted, but, on remand, another panel ruled differently. Servant‘s application for leave to appeal is currently pending beforе this Court.
The Court of Appeals did not reach the separate trial issue in the instant case because it ruled, pursuant to People v McCoy, 392 Mich 231; 220 NW2d 456 (1974), that an accomplice instruction should have been given. Reed‘s cross appeal regarding the issue of
II
In People v Hana, 447 Mich 325; 524 NW2d 682 (1994), the Court considered the separate trials issue in the context of potential conflicting and antagonistic testimony and defenses of codefendants at a joint trial. The focus was not on evidence probative of the defendant‘s guilt admissible only against a codefendant. Sеe id. at 362.
III
The unfairness of the joint trials—which the majority holds precluded a cautionary instruction on accomplice testimony because that would have prejudiced Servant—was exacerbated at the joint trial by reading to the jury the extrajudicial hearsay statement of Servant accusing Reed of instigating the slaying of the victim, Isaac Robbins, Jr., and by reading Reed‘s extrajudicial statement accusing Servant of being the shooter.
Servant‘s and Reed‘s extrajudicial statements were not admissible under the hearsay exception for admissions against penal interest.3 In People v Poole, 444 Mich 151, 161; 506 NW2d 505 (1993), this Court held that a statеment against penal interest may be admissible, although not against the penal interest of
- as did Servant when he acknowledged that he was the shooter but sought to minimize his responsibility by asserting that Reed instigated the shooting by demanding that Servant shoot Robbins without further delay;
- as did Reed, when he acknowledged that he participated in the attеmpted robbery, but sought to minimize his responsibility by asserting that he reproached Servant for shooting Robbins.4
IV
The central, possibly the only, issue at the joint trial was who actually shot Robbins. Both Reed and Servant admitted their participation in the attempted robbery. But under People v Aaron, 409 Mich 672; 299 NW2d 304 (1980), their participation in the attempted robbery did not necessarily make the killing murder. Since Aaron, the jury must be instructed that it cannot infer intent to kill or malice (intent to inflict great bodily harm or wanton or wilful disregard of the likelihood that the natural tendency of the defendant‘s behavior is to cause death or great bodily harm), from participаtion in a robbery, or attempted robbery alone.
A
On that central issue, Reed‘s statement that Servant was the shooter, exculpating Reed from involvement in the murder, destroyed Servant‘s possible ability to persuade the jury to accept Servant‘s trial testimony that Johnson was the shooter, and Servant‘s explanation of why he had falsely accepted responsibility for the shooting.5
B
There was no direct evidence that Reed was involved in the killing other than Servant‘s statement that Reed had urgently demanded that Servant shoot Robbins without further delay.6
The prosecutor in effect acknowledged the importance to the prosecution‘s case against Reed, of Servant‘s statement accusing Reed of being the instigator of the killing by stressing that accusation in his clos-
V
Reed‘s cross apрeal should be granted, and disposition of this case deferred until this Court, after full briefing and opportunity for argument, decides whether Servant‘s statement was admissible against Reed at a joint trial, and whether Reed‘s statement against Servant, inadmissible under Poole and Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968), against Servant, was harmless error, and
VI
I would, therefore, grant leave to appeal in Servant, and grant Reed‘s cross appeal, and defer disposition of this case until decision in Servant and decision on Reed‘s cross appeal.
CAVANAGH, J., concurred with LEVIN, J.
WEAVER, J., took no part in the decision of this case.
Notes
Reed claimed that he was not in the room with Servant and Robbins when he heard the shots and then returned to the room.(1) You should examine an accomplice‘s testimony closely and be very careful about accepting it.
(2) You may think about whether the accomplice‘s testimony is supported by other evidence, because then it may be more reliable. However, there is nothing wrong with the prosecutor‘s using an accomplice as a witness. You may cоnvict the defendant based only on an accomplice‘s testimony if you believe the testimony and it proves the defendant‘s guilt beyond a reasonable doubt.
(3) When you decide whether you believe an accomplice, consider the following:
(a) Was the accomplice‘s testimony falsely slanted to make the defendant seem guilty because of the accomplice‘s own interests, biases, or for some other reason?
(b) Has the accomplice been offered a reward or been promised anything that might lead [him/her] to give false testimony? [State what the evidence has shown. Enumerate or define reward.]
(c) Has the accomplice been promised that [he/she] will not be prosecuted, or promised a lighter sentence or allowed to plead guilty to a less serious charge? If so, could this have influenced [his/her] testimony?
[(d) Does the accomplice have a criminal record?]
(4) In general, you should consider an accomplice‘s testimony more cautiously than you would that of an ordinary witness. You should be sure you have examined it closely before you base a conviction on it. [Emphasis and bracketed material in original.]
The prosecutor‘s theory was that Servant, not Johnson, was the shooter. Johnson was not charged. The jury convicted Servant and, thus, rejected his testimony that he left the Reed home when Reed said that it would be necessary to kill Robbins.
I recognize that the jury was entitled to believe that Reed did say that it would be necessary to kill Robbins, but, absent Servant‘s extrajudicial statement to the police that Reed told him to “do it, do it” (i.e., kill Robbins), the jury was more likely to reject all Servant‘s testimony as it was to believe part of it. (In convicting Servant of first-degree murder, the jury apparently rejected his testimony.)
The extrajudicial statement accusing Reed of being the instigator in hollering “do it, do it” was highly prejudicial bootstrapping, and not harmless, whatever the level of confidence an appellate court must have that error is harmless before it can appropriately rule that error had no effect on the jury‘s verdict.