PEOPLE v SMITH
Docket No. 148305
Supreme Court of Michigan
July 30, 2015
Argued January 13, 2015 (Calendar No. 3).
498 Mich. 466
Feronda Montre Smith was convicted in the Genesee Circuit Court, Joseph J. Farah, J., of armed robbery,
In an opinion by Justice MCCORMACK, joined in full by Chief Justice YOUNG and Justices MARKMAN and VIVIANO and by Justice BERNSTEIN (except for footnote 5), the Supreme Court held:
The prosecution breached its duty to correct the substantially misleading, if not false, testimony of a key witness about his formal and compensated cooperation in the government‘s investigation. Given the overall weakness of the evidence against defendant and the significance of the witness‘s testimony, there was a reasonable probability that the prosecution‘s exploitation of the substantially misleading testimony affected the jury‘s verdict.
- The prosecution may not knowingly use false evidence, including false testimony, to obtain a conviction. The prosecution has an affirmative duty to correct false testimony, and the duty specifically applies when the testimony concerns remuneration for a witness‘s cooperation. The duty applies even if the false testimony goes only to the credibility of the witness. Moreover, the prosecutor‘s blameworthiness is relevant. While the prosecutor need not correct every instance of mistaken or inaccurate testimony, the effect of a prosecutor‘s failure to correct false testimony is the crucial inquiry for due-process purposes. A new trial is required if the uncorrected false testimony could in any reasonable likelihood have affected the jury‘s judgment.
- Yancy‘s trial testimony undoubtedly left the jury with the impression that he received no payment of any kind for his participation in this case. That overall impression was false. Instead of rectifying this false impression, the prosecutor capitalized on and exploited it. When Yancy specifically denied during cross-examination that he had been compensated in connection with the investigation of defendant, the prosecutor again did nothing to correct the testimony but instead used it to her advantage in closing argument, urging the jury to credit Yancy‘s story because he had not received consideration on this case for testifying even though he had received consideration on other task force cases. The prosecutor‘s repeated emphasis on Yancy‘s lack of compensation for testifying and her comments at closing argument enhanced the misleading impression that Yancy was a totally independent witness, underscoring the jury‘s false impression that because Yancy had not been paid to testify, he had no questionable incentive for his participation in this case.
- Due process required that the jury be accurately apprised of the incentives underlying the testimony of this critical witness and that the prosecution not exploit any confusion relating to this critical topic. No physical evidence connected defendant to the crime, and he was convicted solely on the testimony of two witnesses who had significant credibility issues. The jury knew that Lard testified pursuant to a favorable plea agreement for his role in the crime, and his testimony was inconsistent with Yancy‘s version of events. Yancy‘s account of the crime also had inconsistencies and did not cast him in a favorable light. There was, therefore, a basis for skepticism about both Lard and Yancy. As far as the jury knew, however, Yancy was uniquely credible in one respect: he was the sole lay witness who did not directly benefit from his participation in the case. Had the jury been aware of Yancy‘s compensation, the prosecution might well have had a more difficult task persuading the jury to believe Yancy. Given the effect that Yancy‘s uncorrected testimony had on his credibility, the central role that credibility played in securing defendant‘s convictions, and the dearth of other evidence implicating defendant, there was a reasonable likelihood that the false impression resulting from the prosecutor‘s exploitation of the testimony affected the jury‘s judgment. Accordingly, defendant was entitled to a new trial.
- While the delay before defendant‘s trial was extraordinary, defendant did not show sufficient prejudice to merit dismissal for a violation of his right to a speedy trial.
Court of Appeals’ judgment reversed in part, defendant‘s convictions vacated, and case remanded for a new trial.
Justice BERNSTEIN, concurring in part and dissenting in part, concurred with the majority except for footnote 5 of its opinion, which concluded that defendant had not shown sufficient prejudice to merit dismissal for a violation of his right to a speedy trial. With respect to defendant‘s speedy-trial claim, Justice BERNSTEIN instead concurred with Part II of Justice KELLY‘s opinion. Accordingly, he would have in addition reversed the judgment of the Court of Appeals with respect to the speedy-trial claim and remanded this case to the trial court for it to consider whether the prosecution overcame the presumption of prejudice to defendant‘s person and defense.
Justice KELLY, joined by Justice BERNSTEIN with respect to Part II of the opinion only (concerning the speedy-trial issue), concurred in the result of the majority‘s opinion with respect to Yancy‘s false testimony. She dissented to the extent that the majority expanded the traditional standard concerning the prosecution‘s use of false evidence to instead allow a new trial merely on the basis of “substantially misleading” testimony, agreeing with Justice ZAHRA on this point. Applying the traditional standard to this case, however, Justice KELLY agreed that Yancy‘s testimony was false, that it was reasonably likely that his uncorrected false testimony affected the jury‘s judgment, and that defendant was therefore entitled to a new trial. Justice KELLY dissented from the majority‘s resolution of the speedy-trial issue. The trial court did not correctly apply the balancing test from Barker v. Wingo, 407 US 514 (1972), to assess defendant‘s speedy-trial claim after his trial had been delayed for 41 months while he was in prison. Some of the factors to be considered under the Barker test are (1) the length of the delay, (2) the justification for the delay, (3) the defendant‘s assertion of his or her right, and (4) the multifaceted prejudice to the defendant. The trial court did not apply the rule that prejudice is presumed after a delay of 18 months and that the burden then shifts to the prosecution to show there was no injury to the defendant‘s person or defense. Despite a total delay exceeding 18 months when defendant first moved for a speedy trial, the court found that defendant had not established prejudice because the total delay by the prosecution was less than 18 months. The Court of Appeals recognized that the trial court had misunderstood the Barker prejudice prong, but incorrectly concluded that no error had occurred. No prosecutorial evidence overcoming the presumption of prejudice appears on the record. By failing to fully engage in the balancing process established by Barker and therefore failing to impose the proper burden on the prosecution, the trial court did not afford defendant the complete protection of his right to a speedy trial. Justice KELLY would have reversed the judgment of the Court of Appeals, vacated defendant‘s convictions, and remanded this case to a new judge in the Genesee Circuit Court to consider whether the prosecution overcame the presumption of prejudice. If that presumption was overcome, a new trial would be warranted on the basis of the majority‘s reasoning. However, if the presumption was not overcome, a dismissal of all charges would be the only remedy for the speedy-trial violation.
Justice ZAHRA, dissenting, agreed that the prosecution may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, but stated that the majority had turned this constitutional principle into a new requirement that the prosecutor must elicit not just truthful testimony, but also complete testimony, fully disclosing all the facts and circumstances of how that witness came to testify. He further concluded that the majority had imposed an additional duty on the prosecutor to correct a defense attorney‘s mischaracterized questions made during the cross-examination of a prosecution witness. The result was an unacceptably high and extraordinarily ambiguous standard requiring prosecutors to correct every instance of mistaken, inaccurate, or incomplete testimony or risk every possible or perceived contradiction being rendered material. Yancy‘s relationship with the government and the details of his compensation were fully disclosed before trial. What the majority concluded was false or substantially misleading would be better characterized as incomplete testimony. Accordingly, the prosecutor did not commit an error by failing to clarify that evidence in the manner required by the majority. Nor was the prosecutor‘s closing argument an improper exploitation of misleading testimony. Moreover, to the extent that the prosecutor‘s actions constituted error, that error was extinguished by defendant‘s waiver, forfeited for lack of preservation, or harmless. Justice ZAHRA would have affirmed defendant‘s convictions.
State Appellate Defender (by Valerie R. Newman and Katherine L. Marcuz) for defendant.
PEOPLE v SMITH
Docket No. 148305
Supreme Court of Michigan
July 30, 2015
498 Mich. 466
OPINION OF THE COURT
MCCORMACK, J. In this case, we consider whether the prosecution breached a duty to correct the substantially misleading, if not false, testimony of a key witness about his formal and compensated cooperation in the government‘s investigation. Given the overall weakness of the evidence against the defendant and the significance of the witness‘s testimony, we conclude that there is a reasonable probability that the prosecution‘s exploitation of the substantially misleading testimony affected the verdict. See Napue v Illinois, 360 US 264, 271-272; 79 S Ct 1173; 3 L Ed 2d 1217 (1959). We therefore reverse the judgment of the Court of Appeals in part, vacate the defendant‘s convictions, and remand this case to the Genesee Circuit Court for a new trial.
I. FACTS AND PROCEDURAL HISTORY
The defendant was charged with, among other things, armed robbery,
Yancy was a paid informant;1 he had been compensated for his assistance in a Federal Bureau of Investigation (FBI) inquiry into Pass‘s murder and a suspected criminal enterprise involving the defendant. This fact was made clear in a pretrial hearing, during which the prosecutor2 specifically called the investigation‘s FBI task force leader and informant coordinator, Special Agent Dan Harris, to address informant compensation in the case. Harris testified that Yancy was paid for his cooperation relating to “the Larry Pass homicide[,] which was information against Mr. Lard and Mr. Smith [the defendant].”3
At trial, however, the fact and extent of Yancy‘s participation in the investigation that lead to the prosecution of the defendant and the compensation Yancy received for it was never made known to the jury. On the contrary, Yancy testified that he was not paid for his cooperation in relation to “this case,” i.e., the prosecution of the defendant for Pass‘s murder. The topic first arose during direct examination, during which Yancy admitted in response to the prosecutor‘s question that he had been “paid by a federal agency for [his] cooperation.” Neither the prosecutor‘s question nor Yancy‘s answer tied his cooperation to his involvement in the investigation of the defendant as the prime suspect in Pass‘s murder. In order to avoid linking Yancy‘s compensated cooperation to the investigation and prosecution of the defendant, the prosecutor carefully limited her subsequent questions to whether he was specifically paid for the testimony he was giving,
[Defense Counsel]: Do you deny -- first of all, it sounds like you agreed that you were paid $4,500 for cooperating with law enforcement, correct?
[Yancy]: Correct.
[Defense Counsel]: But you deny that it was with regards to this case, correct?
[Yancy]: Correct. [Emphasis added.]
The prosecutor revisited the topic during redirect examination, again limiting her question to whether Yancy had been paid for his “testimony” in particular. Yancy again denied being compensated:
[Prosecutor]: Okay, and just so we‘re clear, you were not paid to testify in this case, correct?
[Yancy]: Correct.
[Prosecutor]: Now, you‘ve been paid by a federal agency for cooperation. Is that correct?
[Yancy]: Yes.
[Prosecutor]: And the money that you were paid was not related to testifying in this case, was it?
[Defense Counsel]: Objection. Leading.
[Yancy]: No.
The Court: Okay. You can rephrase the question.
[Prosecutor]: I‘ll rephrase.
* * *
Were you paid for your testimony in this case?
[Yancy]: No.
Four times, then, Yancy denied having been paid in connection with the defendant‘s case—specifically, that he had not been compensated for his testimony at the defendant‘s trial and also that he had not been otherwise compensated for “cooperating” “with regards to this case.” Clearly, the jury could have interpreted this statement to indicate that Yancy had never been paid for his involvement with the investigation of the Pass homicide, not merely that the Genesee County Prosecuting Attorney‘s office had not compensated him for “testimony” or cooperation with the defendant‘s formal prosecution. The latter point might have been true; the former point was plainly misleading and likely untrue, as the prosecutor well knew, having elicited Harris‘s testimony at the pretrial hearing. This former point, however, was never corrected or clarified at trial, nor was the true nature or extent of Yancy‘s participation or compensation as an informant put before the jury. Rather, the prosecutor exploited the potential confusion Yancy‘s testimony created by reminding the jury of Yancy‘s denials during closing argument, cementing the false notion that Yancy had only been paid for his cooperation in other cases, and attempting to advance his credibility as a result of that fact:
Mark Yancy was here, ladies and gentlemen, and he talked to you about [sic] he wasn‘t charged in this homicide, and that he admitted he was in the house at the time of the homicide, and that he got the cocaine, and gave it to Lard and the defendant. He told you he did not get consideration on this case for testifying, that he got consideration on other cases that the task force was involved with. [Emphasis added.]
The jury found the defendant guilty of armed robbery and felony murder, but acquitted him of the other charges. On June 30, 2011, the defendant was sentenced as a fourth-offense habitual offender to life in prison for the murder conviction and to 20 years, 10 months to 35 years for the armed-robbery conviction. The defendant appealed and, among other
II. LEGAL BACKGROUND
A due process violation presents a constitutional question that this Court reviews de novo. People v Wilder, 485 Mich 35, 40; 780 NW2d 265 (2010). It is inconsistent with due process when the prosecution allows false testimony from a state‘s witness to stand uncorrected. Napue, 360 US at 269; see also People v Wiese, 425 Mich 448, 453-454; 389 NW2d 866 (1986); Giglio v United States, 405 US 150, 153; 92 S Ct 763; 31 L Ed 2d 104 (1972). It is well established that “a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction....” Napue, 360 US at 269. Indeed, the prosecution has an affirmative duty to correct false testimony, and this duty specifically applies when the testimony concerns remuneration for a witness‘s cooperation. See Giglio, 405 US at 154-155; Wiese, 425 Mich at 455-456. The responsibility “does not cease to apply merely because the false testimony goes only to the credibility of the witness.” Napue, 360 US at 269. Nor is the blameworthiness of the prosecutor relevant. Smith v Phillips, 455 US 209, 220 n 10; 102 S Ct 940; 71 L Ed 2d 78 (1982). Rather, while “not every contradiction is material” and the prosecutor need not correct every instance of mistaken or inaccurate testimony, United States v Martin, 59 F3d 767, 770 (CA 8, 1995), it is the effect of a prosecutor‘s failure to correct false testimony that “is the crucial inquiry for due process purposes,” Smith, 455 US at 220 n 10. A prosecutor‘s capitalizing on the false testimony, however, is of particular concern because it “reinforce[s] the deception of the use of false testimony and thereby contribute[s] to the deprivation of due
Regardless of the lack of intent to lie on the part of the witness, Giglio and Napue require that the prosecutor apprise the court when he knows that his witness is giving testimony that is substantially misleading. This is not to say that the prosecutor must play the role of defense counsel, and ferret out ambiguities in his witness‘s responses on cross-examination. However, when it should be obvious to the Government that the witness’ answer, although made in good faith, is untrue, the Government‘s obligation to correct that statement is as compelling as it is in a situation where the Government knows that the witness is intentionally committing perjury. [United States v Harris, 498 F2d 1164, 1169 (CA 3, 1974).]6
III. APPLICATION
A. FAILURE TO CORRECT TESTIMONY
As the Court of Appeals correctly observed, Yancy‘s trial testimony undoubtedly left the impression that he received no payment of any kind for his participation in this case, either for his testimony or for his prior cooperation that was the necessary condition to his testimony. The overall impression conveyed was false. Whether Yancy understood why or for what he had been compensated, the prosecutor knew that Agent Harris had given uncontroverted pretrial testimony that Yancy was compensated for information central to the formal prosecution of the defendant.
Instead of rectifying this false impression regarding Yancy‘s involvement, the prosecutor capitalized on and exploited it. Though well aware of Harris‘s testimony and the fact of Yancy‘s compensation, the prosecutor never took any steps to correct or explain Yancy‘s testimony. Rather, the prosecutor carefully limited her questioning of Yancy to the fact that he had been paid for cooperating with law enforcement, while never seeking to clarify that Yancy had been compensated for his cooperation in the investigation of the defendant. To the contrary, the prosecutor further distanced
She instead used Yancy‘s general claims of noncompensation to her advantage in closing, urging the jury to credit his story because “[h]e told you he did not get consideration on this case for testifying, that he got consideration on other cases that the task force was involved with.” (Emphasis added.)
Capitalizing on Yancy‘s testimony that he had no paid involvement in the defendant‘s case is inconsistent with a prosecutor‘s duty to correct false testimony.8 Indeed, the prosecutor sought to
B. ERROR AFFECTING THE JUDGMENT OF THE JURY
Whatever Yancy may have believed about the truth of his testimony, we conclude both that it conveyed a serious misimpression about the nature of his involvement in the case and that the prosecutor‘s exploitation of that testimony violated the defendant‘s right to due process. For this reason, we disagree with the Court of Appeals that this violation does not warrant relief. Rather, in light of the effect that Yancy‘s uncorrected testimony had on his credibility and the role that credibility played in securing the defendant‘s convictions, we conclude that there is a “reasonable likelihood” that the false impression resulting from the prosecutor‘s exploitation of the testimony affected the judgment of the jury. Napue, 360 US at 271. Accordingly, the defendant is entitled to a new trial.
As noted, there was no physical evidence tying the defendant to the crime. No murder weapon was ever recovered, the defendant‘s fingerprints were not found at the scene, and no other physical evidence confirmed that he had ever been at Pass‘s house. The defendant was convicted solely on the testimony of Lard and Yancy, two witnesses with significant credibility issues. As the jury was made aware, Lard was testifying pursuant to a favorable plea agreement for his role in the crime,12 and
Yancy‘s account of the crime was also riddled with inconsistencies14 and did not otherwise cast him in a particularly favorable light. First, while Yancy admitted at trial that he and the victim “had a kind of personal bond,” he also admitted that he did not call an ambulance or the police while the victim was “gurgling off his blood” on the floor after being shot, instead leaving the house with the defendant and Lard to go share some of the victim‘s cocaine. Yancy acknowledged that he then promptly disappeared from town for approximately a year. Furthermore, Yancy admitted, and Lard confirmed, that Yancy and the defendant had “a little beef going on” at the time of the murder, arising from a violent dispute over money a few weeks earlier.
There was, therefore, a basis for skepticism about both Lard and Yancy. What is most significant for our assessment, however, is that, as far as the jury knew, Yancy was uniquely credible in one respect: he was the sole lay witness who did not directly benefit from his participation in the case. Unlike Lard, he was not facing charges in connection with Pass‘s murder, and according to his testimony, he had not been compensated for testifying and had no paid connection with the defendant‘s case. Of course, Yancy did receive at least one known direct benefit for his participation in the case—financial compensation. But the prosecutor exploited the false impression to the contrary, urging the jury to believe Yancy—and convict the defendant—because of it. Given that the prosecution‘s case hinged entirely on the jury‘s credibility assessment of Lard and Yancy, this emphasis on the one (albeit false) indication of the difference in trustworthiness between them is unsurprising. For the same reason, however, we cannot overlook its prejudicial effect. See Wiese, 425 Mich at 456 (concluding, in a case that “depended almost entirely on [the falsely testifying witness‘s] testimony,” that the use of the false testimony and the defendant‘s resulting inability to properly question the witness‘s credibility “reasonably could have affected the judgment of the jury“).
Instead, the question is what effect would likely have resulted if the jury had understood that Yancy was compensated for his information against the defendant. In our view, this unique additional impeachment evidence was not cumulative or immaterial. See Napue, 360 US at 270 (“[W]e do not believe that the fact that the jury was apprised of other grounds for believing that the witness . . . may have had an interest in testifying against [the defendant] turned what was otherwise a tainted trial into a fair one.”); Reynoso v Giurbino, 462 F3d 1099, 1117 (CA 9, 2006) (“Unlike the other evidence used to impeach the eyewitnesses . . . such as inconsistent statements and general attacks on their credibility, evidence of their financial motives would have established a real incentive to lie, explaining why their testimony may have been fabricated.”). Rather, there is good reason to believe that if the jury had been made aware that Yancy was compensated for his cooperation, the prosecution would have had a more difficult task persuading the jury that he should be believed.
Put simply, the “dreadful state” of Yancy’s credibility would have been even more dreadful had the jury learned that he was paid for his information against the defendant. And contrary to the Court of Appeals’ suggestion, the prejudice from the prosecutor’s exploitation of Yancy’s potentially misleading testimony cannot be discounted simply because the jury had other reasons to disbelieve Yancy. Indeed, this case demonstrates the opposite to be true. Presented with a witness who was revealed to be a regular drug user, to have been in a dispute with the defendant about money, to have taken the victim’s drugs, to have left the victim “gurgling off his blood” on the floor, and to have then left town for a year, the jury was more likely to have viewed the false inference that Yancy was not compensated at all for his involvement as the most significant basis for crediting his testimony against the defendant.15
Due process required that the jury be accurately apprised of the incentives underlying the testimony of this critical witness, and plainly that the prosecution not exploit any confusion relating to this critical topic. See United States v Cervantes-Pacheco, 826 F2d 310, 315 (CA 5, 1987)
IV. CONCLUSION
For the foregoing reasons, we conclude that the defendant is entitled to a new trial. Accordingly, we reverse the judgment of the Court of Appeals in part, vacate the defendant’s convictions, and remand this case for proceedings consistent with this opinion.
YOUNG, C.J., and MARKMAN and VIVIANO, JJ., and BERNSTEIN, J. (except for footnote 5), concurred with MCCORMACK, J.
BERNSTEIN, J. (concurring in part and dissenting in part). I concur with the majority opinion except for footnote 5. With respect to defendant’s speedy-trial claim, I respectfully disagree with the majority’s conclusion that defendant is not entitled to relief. Instead, I concur with Part II of Justice KELLY’s partial concurrence and partial dissent. Accordingly, I would also reverse the judgment of the Court of Appeals with respect to the speedy-trial claim and remand this case to the trial court to consider whether the prosecution overcame the presumption of prejudice to defendant’s person and defense.
KELLY, J. (concurring in part and dissenting in part). I concur in the result of the majority’s opinion with respect to the issue of Yancy’s false testimony. It is reasonably likely that Yancy’s uncorrected false testimony affected the judgment of the jury; therefore, a new trial is warranted. I part ways with the majority to the extent that it would grant a new trial simply for “substantially misleading” testimony of a material witness that need not rise to the level of falsity and, further, dissent from the majority’s resolution of defendant’s speedy-trial issue.
I. FALSE TESTIMONY
I would grant a new trial on the basis of the false evidence in the form of Yancy’s testimony, which was “uncorrected when it appear[ed]” during defendant’s trial.1 The United States Supreme Court has long held that “a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction . . . .”2 The majority expands the “false evidence” standard by allowing a new trial on the basis of “substantially misleading” evidence in the form of testimony.3 This standard is unworkable for the reasons articulated by Justice ZAHRA: it allows a reviewing court to “pick[] and choose[] small snippets of testimony”4 to
Nevertheless, applying the traditional standard to this case, I agree with the majority that defendant is entitled to a new trial. Yancy’s testimony was, in fact, false. The Court of Appeals explained that “[o]n direct, cross, and redirect examination, Yancy repeatedly admitted that he was paid for cooperating with law enforcement but repeatedly denied that any of the payment pertained to the instant case.”6 Moreover, the prosecutor “did not exercise the opportunity to clarify” that Yancy “did receive payment for information pertaining to the case.”7 For the reasons stated by the majority, I agree that this false—not just substantially misleading—testimony was prejudicial and warrants a new trial.
II. RIGHT TO A SPEEDY TRIAL
Although defendant is entitled to a new trial on the basis of false testimony, I would not simply remand for a new trial but would also remand for additional factual findings related to defendant’s speedy-trial claim, and I respectfully dissent from the majority’s conclusion that defendant is not entitled to any relief on this claim. The Court of Appeals acknowledged that the circuit court did not correctly apply the Barker v Wingo8 balancing test to assess defendant’s speedy-trial claim after his trial was delayed for 41 months.9 Specifically, the circuit court did not “follow[] the rule that after a delay of 18 months, prejudice is presumed,”10 and the Court of Appeals likewise did not properly examine the extent to which the circuit court’s analysis was influenced by its failure to require the prosecution to rebut the presumption of prejudice. I would therefore reverse the judgment of the Court of Appeals, vacate defendant’s convictions, and remand this case to a new judge in the Genesee Circuit Court to consider whether the prosecution overcame the presumption of prejudice to defendant’s person and defense.11 If the presumption was overcome, a new trial is warranted on the basis of the
The right to a speedy trial is enshrined in the
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . .12
The United States Supreme Court has held that the right to a speedy trial serves “to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.”13
There is no bright-line rule that indicates a “fixed number of days” that must pass before a defendant’s right to a speedy trial is violated.14 Instead, this Court applies the balancing test established by the United States Supreme Court in Barker v Wingo15 in light of this Court’s presumption of prejudice “after a delay of 18 months.”16 In Barker, the United States Supreme Court identified as some of the factors to be considered (1) the length of the delay, (2) the justification for the delay, (3) the defendant’s assertion of his or her right, and (4) the multifaceted prejudice to the defendant.17 The Barker test is case-specific, and none of the four factors is dispositive.18 In assessing the prejudicial effect of a delay on a defendant, the United States Supreme Court has observed that “[t]he time spent in jail,” as opposed to time released on bond, “has a detrimental impact on the individual.”19
Defendant waited in prison for 41 months before being brought to trial. The circuit court’s analysis of these delays inexplicably attributed extensive delays by the court to defendant.20 As a result, despite a total delay exceeding 18 months at the time of defendant’s first motion for a speedy trial, the court found that defendant had not established prejudice because the total delay by the state was less than 18 months. On appeal almost 25 months after defendant’s first motion for a speedy trial, the Court of Appeals recognized that the circuit court had misunderstood the Barker prejudice prong, observing that “irrespective of whether defendant or the prosecution is more at ‘fault’ for the 41-month delay here, the simple fact is that
Contrary to the Court of Appeals’ conclusion, the circuit court’s prejudice inquiry was tainted by its misapprehension of applicable law. In People v Collins, this Court established that “[a]fter 18 months, the burden shifts to the prosecution to show there was no injury [to the defendant’s person or defense].”23 No prosecutorial evidence overcoming the presumption of prejudice appears on the record.24 By failing to fully engage in the “difficult and sensitive balancing process” established in Barker, and therefore failing to impose the proper burden on the prosecution, the circuit court did not afford defendant the complete protection of his constitutional right to a speedy trial.25 In other words, the Court of Appeals’ decision is “irreconcilable with . . . the original meaning of the Sixth Amendment . . . .”26 Because the Court of Appeals did not afford defendant the presumption to which he is entitled, I would reverse the judgment of the Court of Appeals, vacate defendant’s convictions, and remand this case to a new judge in the Genesee Circuit Court for the correct application of the relevant law. Final disposition of defendant’s speedy-trial claim should await the prosecution’s showing that defendant was not prejudiced by the delay and the circuit court’s correct application of the remaining Barker factors.
BERNSTEIN, J., (with respect to Part II only), concurred with KELLY, J.
ZAHRA, J. (dissenting). The majority concludes that reversal of defendant’s felony-murder and armed-robbery convictions is required because the prosecutor failed to meet her duty to correct “substantially misleading, if not false,” testimony from Mark Yancy regarding the compensation paid to him by the Federal Bureau of Investigation (FBI) for information and cooperation. The objection to the prosecutor’s conduct is premised in the notion that the “State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction . . . .” Ante at 475-476 (quotation marks and citation omitted). I agree with this fundamental proposition, and imagine that no one denies it. But today the majority
The record is clear that Yancy admitted being paid by the FBI for his cooperation. Nonetheless, despite the prosecutor’s having elicited testimony from Yancy that he had been paid for his cooperation, the majority vacates defendant’s convictions because the prosecutor did not make it absolutely clear to the jury that the FBI paid Yancy for his cooperation in the government’s case against defendant. I respectfully dissent because I fear the majority now holds prosecutors to the unacceptably high and extraordinarily ambiguous standard of having to correct every instance of mistaken, inaccurate, or incomplete testimony or risk the possibility that every possible or perceived contradiction will be rendered material.1
But even if the rule announced by the majority today is intended as a narrow one, as emphatically stated by the majority, the opinion remains rife with directives that a prosecutor must do more than refrain from knowingly arguing to the jury facts known to be untrue. Instead, the majority imposes on the prosecution the burden to do more than ensure that testimony elicited on direct examination is truthful; that testimony must now be truthful and complete. And it also imposes on the prosecution an obligation to correct misguided testimony that a reviewing court might later declare to be “substantially misleading,” even when that testimony is the product of defense counsel’s cross-examination and when, as here, defense counsel is fully aware that the testimony is misleading, has all the information needed to effectively cross-examine the witness on this point, and, as a matter of trial strategy, elects to let that testimony stand.
So if, as the majority states, my fear of the breadth of the majority opinion is overblown, it nevertheless seems to be fully justified and anchored in the various broad statements scattered throughout its opinion that are not congruent with the majority’s claim that it announces a narrow rule.
The majority’s claim of error is predicated on the broad proposition “that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with ‘rudimentary demands of justice.’”2 Along these lines, a state may not knowingly use false evidence, including false testimony, or solicit false evidence or testimony and allow it to go uncorrected when it appears, to obtain a tainted conviction.3 This Court has recognized that “[t]he prosecution’s duty to correct the false testimony of a state witness arises ‘when [the false testimony] appears.’”4
Each of these principles is sound when one understands how they have been developed and applied. In each case enunciating these principles, neither defense counsel nor the trial court was aware that the state had agreed to compensate witnesses
I. THE SUPREME COURT CASES RELIED ON BY THE MAJORITY ARE DISTINGUISHABLE
The majority relies principally on Napue v Illinois, 360 US 264, 271-272; 79 S Ct 1173; 3 L Ed 2d 1217 (1959), Giglio v United States, 405 US 150, 154; 92 S Ct 763; 31 L Ed 2d 104 (1972), and People v Wiese, 425 Mich 448, 453-454; 389 NW2d 866 (1986), to support the proposition that reversal is required in this case. All these cases involved witnesses who denied under oath receiving of any remuneration from the government in exchange for their testimony. It is significant, in my view, that in each case the denial of remunera- tion was clearly and patently false and, more importantly, that this falsity was known only by the prosecution.
Unlike the key prosecution witnesses in Napue, Giglio, and Wiese, Yancy admitted receiving compensation for his cooperation with the FBI. Moreover, as distinguished from Napue, Giglio, and Wiese, in the instant case it was not a secret that Yancy received compensation from the FBI in exchange for his cooperation. In stark contrast to Napue, Giglio, and Wiese, here there was a pretrial proceeding held for the benefit of defense counsel5 during which the prosecution presented FBI Special Agent Dan Harris, who was charged with the responsibility of compensating informants. Defense counsel participated in this hearing, which was presided over by the trial court. During the hearing it was fully disclosed that Yancy had received $4,000 for information related to the Pierson Hood gang and for information that led to the charges against defendant.6
In cases in which the defendant claims that the prosecution has left unchecked questionable testimony from a witness, a reviewing court must assess whether the evidence was truly false and material to the proceedings or merely inaccurate, incomplete, or otherwise vague or ambiguous such that the discrepancy is immaterial.13 As observed by the majority, “it is the effect of a prosecutor’s failure to correct false testimony that ‘is the crucial inquiry for due process purposes.’”14 If the evidence in question was disclosed to the defense in a timely manner, this disclosure should weigh in favor of a finding of immateriality. When all parties to the litigation are aware of the material facts, the adversarial process will separate the wheat from the chaff, leaving all material and pertinent information before the jury.15
II. THE ALLEGED “SUBSTANTIALLY MISLEADING” EVIDENCE PRESENTED BY THE PROSECUTOR WAS NOT ONLY DISCLOSED, IT WAS AT MOST INCOMPLETE AND THEREFORE IMMATERIAL
Examination of the testimony elicited by the prosecutor reveals no patent falsity.
[Prosecutor]: Now, you’ve been paid by a federal agency for cooperation. Is that correct?
[Yancy]: Yes.
* * *
[Prosecutor]: Were you paid for your testimony in this case?
[Yancy]: No.
The majority does not allege that either question and its respective response, taken individually, constituted the solicitation of false or misleading evidence. This is clearly because the responses to both questions are true. Yancy was paid for his cooperation, but he was not paid for his testimony. At most the majority takes issue with the prosecutor’s use of the phrase “federal agency,” framing that language as clear evidence the prosecutor purposefully attempted to distance the witness from the defendant and purposefully obfuscated the fact that Yancy had been compensated for information provided to the FBI. The majority uses innuendo and isolated phrases such as “federal agency” to somehow determine that “[t]he overall impression [with regard to Yancy’s compensation] conveyed was false.”
In reality, any misdirection with regard to the compensation paid by the FBI to Yancy was created not by the prosecutor but by defense counsel during Yancy’s cross-examination:
[Defense Counsel]: Do you deny — first of all, it sounds like you agreed that you were paid $4,500 for cooperating with law enforcement, correct?
[Yancy]: Correct.
[Defense Counsel]: But you deny that it was with regards to this case, correct?
[Yancy]: Correct.
On the basis of this response, the majority claims that Yancy denied that he was compensated for his “cooperation with the defendant’s formal prosecution.” But Yancy was not asked whether he was compensated for his cooperation in the Pass murder investigation; he was asked whether he was compensated “with regards to this case.” Yancy might well have believed that his compensation was not “with regards to this case,” but was instead for his cooperation in the Pierson Hood gang case. Further, Yancy had just been asked if he had been paid for his testimony in this case. It would be reasonable for Yancy to assume that defense counsel was referring to his specific testimony.
Admittedly, neither the prosecutor nor defense counsel made this clarification. Instead, the prosecutor again asked Yancy to confirm that the compensation he received was not for his trial testimony. It is the prosecutor’s failure to clarify the distinction between compensation for information and compensation for testimony—a confusion brought on by defense counsel’s cross-examination—that the majority finds
If this were a case in which the prosecution alone was aware that Yancy was compensated for information that ultimately led to the charges against defendant, I might well have joined the majority opinion. This is not such a case. Defense counsel was fully aware of the specifics underlying the compensation the FBI paid Yancy. Accordingly, defense counsel had in his arsenal all the information necessary to cross-examine Yancy with regard to the incomplete, albeit truthful, testimony elicited by the prosecutor. Importantly, defense counsel conducted a vigorous and effective cross-examination:
[Defense Counsel]: But it was money, right? Real money, right?
[Yancy]: Correct.
[Defense Counsel]: For cooperating, correct?
[Yancy]: Correct.
[Defense Counsel]: With these folks, correct?
[Yancy]: Correct.
[Defense Counsel]: And you got some other benefits, too. Isn’t that right?
[Yancy]: No.
[Defense Counsel]: Okay. Well, are you in prison or jail now?
[Yancy]: Because I didn’t do nothing.
[Defense Counsel]: That’s not my question.
[Yancy]: No I’m not.
[Defense Counsel]: You’re not in prison or jail now. Okay. You weren’t charged with murder or weapons possession, correct?
[Yancy]: I didn’t have a weapon, no.
[Defense Counsel]: That’s not my question.
[Yancy]: No.
[Defense Counsel]: Okay. You were not charged with drug charges, right?
[Yancy]: No.
[Defense Counsel]: I mean you delivered cocaine in the house, right? You handed it to these guys and then you shared it, so you delivered it or at the least used it, right? Didn’t get charged with any of that stuff, right?
[Yancy]: No.17
PEOPLE V SMITH
Michigan Supreme Court
July 28, 2015
498 Mich. 466
Zahra, J.
The majority picks and chooses small snippets of testimony to determine that the prosecutor had evil intent to obfuscate
The Court: The jury is yet to be called for. Are we ready for our jurors?
[Defense Counsel]: No. There was just one issue that I wanted to get your opinion on one way or the other before I start my cross-examination and that is this. Listening to the detective, and it‘s no secret there was an interview of Yancy in ‘06, in the summer of ‘06 if I understood his testimony. My client wasn‘t arrested until December of ‘07. If I ask the officer to confirm, I won‘t be asking the officer why, but if I ask the officer to confirm when my client was arrested, am I opening the door to Pierson Hood? I don‘t think I am, but if you think I am, I‘m not doing it. So, I need to know.
[Prosecutor]: Your Honor, the reason that there was a delay was because of the Pierson Hood investigation. So, if he wants to go there, it seems to me that it‘s only fair that we don‘t make Sgt. Ellis look like he wasn‘t doing anything. I mean —
The Court: Yeah, we would have to supply the context. I don‘t see it as being particularly beneficial. We‘ve already indicated, I think there‘s been indication that Lard wasn‘t arrested until ‘07 for an ‘05 homicide. It would certainly suggest — if it is the delay in an arrest the defendant is seeking to elicit from the officer, then an explanation for the delay in arrest would be certainly forthcoming. Frankly, I think it‘s much, much more hazardous for any gain that‘s going to be made.
[Defense Counsel]: All right. I‘m not going to get into it.
The Court: Yeah. All right.
Defense counsel‘s trial strategy was to avoid opening the door to Pierson Hood because, as the trial court noted, doing so would be hazardous to defendant‘s case. Rather, defense counsel sought to impeach Yancy‘s claim that he was not paid with regards to this case by suggesting that Yancy had received some tacit benefit from the prosecution for his testimony and cooperation.
Further, it appears that an integral part of defense counsel‘s trial strategy was to avoid mentioning Yancy‘s cooperation in the Pierson Hood gang investigation. This is a significant fact that the majority ignores. And it is significant precisely because the majority holds the prosecutor responsible for failing to correct evidence that was not patently false and that the defense introduced for its own purpose.
III. ANY ALLEGED ERROR IS BARRED BY WAIVER
While defense counsel conducted a vigorous cross-examination of Yancy, counsel chose not to clarify Yancy‘s testimony with regard to compensation from the FBI. I conclude that explicit disclosure of evidence affecting Yancy‘s credibility, coupled with defense counsel‘s subsequent failure to raise the specific issue at trial, constituted waiver of the claim at issue in this case.18 Significantly, when Yancy denied on cross-examination that he was compensated with regards to this case, defense counsel did not object, ask
IV. THE UNPRESERVED ALLEGED ERROR IS FORFEITED
As discussed, defense counsel and the trial court were fully aware that the FBI had compensated Yancy for his cooperation and information implicating defendant in the murder of Pass. Because there was no objection when Yancy denied being compensated with regards to this case,23 defendant‘s constitutional claim is unpreserved
Of course the jury was certainly entitled to question Yancy‘s credibility. He admitted that he was a regular drug user, was in a dispute with defendant over money, took Pass‘s drugs (though he gave them to Lard), and left the victim gurgling off his blood on the floor (though he testified, What could I do? and I thought I was next), and left town for a year. Even the prosecutor wryly admitted, [O]ur witnesses aren‘t from the Mormon Tabernacle choir. . . . With that said, [i]t is the defendant rather than the Government who bears the burden of persuasion with
V. THE ALLEGED ERROR WAS HARMLESS
No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.
This statute essentially embodies Michigan‘s harmless-error rule.30 Simply stated, ... reversal is only required if the error was prejudicial. That inquiry focuses on the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence.31
According to the majority, the alleged error prejudiced defendant because the prosecutor bolstered Yancy‘s credibility by arguing that he had only been paid for his cooperation in other cases:
Mark Yancy was here, ladies and gentlemen, and he talked to you about [sic] he wasn‘t charged in this homicide, and that he admitted he was in the house at the time of the homicide, and that he got the cocaine, and gave it to Lard and the defendant. He told you he did not get consideration on this case for testifying, that he got consideration on other cases that the task force was involved with.
No objection was made to the prosecutor‘s closing argument. Further, this argument is consistent with the record evidence from Flint police officer Shawn Ellis, who testified without objection that Yancy was not paid for his testimony and had cooperated on other investigations with task force officers. In any event, reviewing courts should not flyspeck trial proceedings with the benefit of 20/20 appellate hindsight. [T]he Constitution entitles a criminal defendant to a fair trial, not a perfect one.32 Instead, our law generally demands that trial results not be overturned unless a miscarriage of justice has occurred.33 This was a 7-day jury trial featuring more than 20 witnesses and numerous exhibits. It is often difficult for seasoned practitioners and judges to keep pace with trial proceedings. It is substantially more difficult for the jury to
Further, the majority exaggerates the prejudicial effect of the alleged error. The extent to which Yancy‘s credibility was bolstered by argument that he had only been paid by the FBI for his cooperation in other cases is, at best, marginal. Additionally, the alleged error was clearly precipitated by the prosecutor‘s willingness to accommodate defense counsel‘s trial strategy that avoided opening the door to Pierson Hood because, as the trial court noted, doing so would be hazardous.34 Both the prosecutor and defense counsel fastidiously avoided mention of the Pierson Hood gang during trial. Rather than delve into specific prejudicial information that Yancy had provided to the FBI, defense counsel sought to challenge Yancy on his claim that he was not paid with regards to this case and impeached Yancy by suggesting not only that Yancy had received cash from the FBI for cooperation, but that he had also received some tacit benefit from the prosecution for his testimony and cooperation.
Finally, the majority does not address whether even if Yancy‘s testimony had been struck from the record, the prosecution nonetheless presented sufficient independent evidence at trial to establish beyond a reasonable doubt that defendant murdered Pass. Even if evidence is improperly admitted to bolster a witness‘s character for truthfulness, reversal is not required under
Specifically, Yancy and Lard consistently testified that Lard brought defendant to Pass‘s home, that they used a mutual acquaintance‘s
Notes
Harris‘s full explanation was as follows:
I did determine the amount on Mark Yancy was $4,000. The request was originally requested or submitted in October of 2008. I could not recall or could not find the date it was actually paid. The reason for [Yancy‘s] payment was for information against Pierson Hood members and their involvement, also for the Larry Pass homicide which was against Mr. Lard and Mr. Smith.
Harris made no further statements about the purposes of Yancy‘s compensation, nor did he describe how the payment was apportioned respective to information about Pierson Hood or the Pass homicide. We therefore disagree with the dissent‘s characterization of Harris‘s testimony as stating that the payment was “due in significant part for [Yancy‘s] cooperation relating to [Pierson Hood].” Post at 498 n 6 (emphasis added).
Although the majority cites United States v Harris for its “substantially misleading” standard, the full quotation from Harris equates substantially misleading testimony with testimony that “is untrue.” United States v Harris, 498 F2d 1164, 1169 (CA 3, 1974). Moreover, the testimony in Harris was, in fact, false, not just “substantially misleading.” See id. at 1166-1168. Ante at 475-476, citing Napue v Illinois, 360 US 264, 271-272; 79 S Ct 1173; 3 L Ed 2d 1217 (1959).We granted to leave to appeal, limited to two issues: “(1) whether the defendant was deprived of his constitutional right to a speedy trial; and (2) whether the defendant was deprived of his due process right to a fair trial through the presentation of perjured testimony.” People v Smith, 496 Mich 855 (2014).
While we agree that the delay in this case was extraordinary, we are not persuaded that the defendant has shown sufficient prejudice to merit dismissal for a violation of his right to a speedy trial. See Barker v Wingo, 407 US 514, 530, 532; 92 S Ct 2182; 33 L Ed 2d 101 (1972). We therefore affirm on that issue for the reasons stated in the Court of Appeals’ opinion.
Post at 503, quoting ante at 478 (opinion of the Court). Specifically, defense counsel made a discovery request seekingAs a result of this discovery request, the trial court conducted the evidentiary hearing at which FBI Special Agent Dan Harris testified.[c]opies of any and all written and/or electronically recorded agreements for the payment of funds by the FBI and any other police agency to any cooperating witness in this cause, including, but not limited to, Mark Yancy and Tarence Lard [a codefendant in this case], and logs and other records pertaining to such payments. A summary of the content of any oral agreements is also requested.
See also Jenkins, 294 F3d at 296 (“[W]hile [the prosecutor‘s] questions elicited technically correct answers, ... they left the jury with the mistaken impression that no plea agreement existed. We can think of no credible explanation for [the prosecutor‘s] conduct other than an attempt to reinforce [the witness‘s] false testimony.“); United States v Barham, 595 F2d 231, 241 (CA 5, 1979) (asserting the prosecution‘s duty to correct testimony that “if not outright lies, certainly conveyed the false impression that none of [the] witnesses had received any promises of leniency or other considerations“).
In Harris, a government witness falsely testified during cross-examination that in exchange for her testimony against the defendants, the prosecution had made no promises to help her achieve a reduced sentence on pending state charges against her. Harris, 498 F2d at 1166-1167. The prosecutor brought the witness‘s false testimony to the attention of the court and defense counsel a day after the testimony was given but still during the government‘s case-in-chief and offered to stipulate it. Id. at 1167. Unlike the prosecutor in this case, the Harris prosecutor did not seek to capitalize on the false testimony, but rather offered to correct it. Id. Indeed, it was the defendant‘s affirmative failure to take advantage of that offer and use other means to reveal the untruth that was fatal to the ability to complain about it on appeal. Id. at 1170. The dissent overlooks this important difference, and conflates the distinct prosecutorial duties to disclose exculpatory information, see Brady v Maryland, 373 US 83,
continued: 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963), and to refrain from using false or misleading testimony to obtain a conviction, see Napue, 360 US at 269. See note 8 of this opinion. People v Smith, unpublished opinion per curiam of the Court of Appeals, issued October 29, 2013 (Docket No. 304935), p 5. Defendant was on trial for the murder of Larry Pass. The majority minimizes the fact that the compensation paid to Yancy was not exclusively for information related to the Pass homicide. In fact, the main focus of the FBI investigation was the Pierson Hood gang and, as Harris testified, Yancy’s compensation was due in significant part for his cooperation relating to the gang activity. Importantly, the record reveals that defense counsel wanted to avoid at all costs any reference to the Pierson Hood gang to ensure that the jury never learned of defendant’s ties to gang activity. See footnote 17 of this opinion. Therefore, it is entirely possible that the prosecutor did not develop the full extent of Yancy’s compensation agreement with the FBI in order to accommodate defense counsel’s strategy of distancing defendant from the highly publicized Pierson Hood gang.The obligation to avoid presenting false or misleading testimony of its own witness begins and ends with the prosecution and is prudent in the unique Napue context because Napue requires the prosecution‘s knowledge of the false or misleading testimony of its own witnesses. Napue, 360 US at 269. While we do not disagree that a defendant can waive a claim of error under Napue, we do not share the dissent‘s view that there was waiver in this case. First, we disagree with the dissent that the record reveals any strategy by defense counsel to keep the impeaching information from the jury. Given that we see no strategy here, the dissent‘s reference to cases finding waiver when counsel strategically elected not to address a government witness‘s false testimony is beside the point. We note, however, that we do not read all the cases the dissent cites in support of this general proposition as relevant. Two did not involve false testimony about a witness‘s cooperation agreement, Beltran v Cockrell, 294 F3d 730, 735 (CA 5, 2002) (observing that the defendant prevented the prosecution from clarifying the allegedly false testimony that the defendant was the only person identified as the assailant); United States v Decker, 543 F2d 1102, 1105 (CA 5, 1976) (noting that any error from the witness‘s false statements about his attorney‘s presence at his cooperation meeting were harmless), and in another, the court held that it was not clear that there was any cooperation agreement with the witness at all, see United States v Meinster, 619 F2d 1041, 1045 (CA 4, 1980) (“Nothing was promised in exchange for [the witness‘s] testimony in this case.“). Importantly, however, when a prosecutor has capitalized on the false or misleading evidence, the waiver rule is more nuanced. See Jenkins, 294 F3d at 296 (concluding that there was no waiver because “the prosecutor‘s actions cannot be overlooked on the ground that [defense] counsel did not continue to seek to gain an admission from [the witness] as to the plea agreement“); Barham, 595 F2d at 243 n 17 (concluding that there was no waiver because the prosecutor‘s “misleading questions ... reinforced the deception“); United States v Sanfilippo, 564 F2d 176, 178-179 (CA 5, 1977) (concluding that there was no waiver when the prosecutor failed to correct and subsequently capitalized on the false testimony); DeMarco, 928 F2d at 1077 (concluding that there was no waiver when the prosecution‘s capitalizing on the testimony “contributed to the deprivation of due process“). Therefore, even if, as the dissent argues, counsel
continued: had a conscious strategy to keep the true nature of Yancy‘s compensation from the jury, it is far from clear whether that would have led to a waiver in this case, given that the prosecutor capitalized on the misleading evidence in her summation to the jury. In any event, what precise role counsel‘s effectiveness might play in determining the reviewability of a Napue complaint on appeal is not one we need reach today, since the prosecution has never argued in the course of this appeal that the defendant waived this Napue objection. See People v McGraw, 484 Mich 120, 131 n 36; 771 NW2d 655 (2009). Id. The majority accuses me of conflating the prosecution’s obligation to disclose exculpatory information under Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963), with the duty to correct false testimony under Napue, 360 US at 269. The United Stated Supreme Court has stated, however, that “[t]he rule of Brady . . . arguably applies in three quite different situations” and that “[e]ach involves the discovery, after trial of information which had been known to the prosecution but unknown to the defense.” United States v Agurs, 427 US 97, 103; 96 S Ct 2392; 49 L Ed 2d 342 (1976). The Supreme Court observed that one of these situations arises when “undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury.” Id. The Court, citing Napue and Giglio, then stated that “a conviction obtained by the knowing use of perjured testimony is fundamentally unfair.” Id. The majority here has created a new rule that wholly separates the duties under Napue from those under Brady even though the duties are inextricably linked. The United States Supreme Court has recognized this, stating that each Brady situation, including those having claims under Napue and Giglio, involves information known by the prosecution but unknown to defense counsel.While there may be circumstances in which the prosecution has complied with Brady yet failed to meet an overriding duty to correct a witness’s perjured testimony, we ought not let appellate hindsight decouple Brady from Napue in cases in which it is clear that defense counsel was aware that the testimony was arguably misleading and yet declined to clarify it for the jury.
The majority attempted to decouple Brady from Napue by citing three federal cases: DeMarco v United States, 928 F2d 1074, 1076-1077 (CA 11, 1991), United States v Sanfilippo, 564 F2d 176, 178-179 (CA 5, 1977), and Jenkins v Artuz, 294 F3d 284, 296 (CA 2, 2002). The majority’s reliance on these cases is seriously misplaced. To begin with, DeMarco involved actual perjured testimony, while the instant case involves, at best, “substantially misleading testimony.” Further, a more recent case from the United States Court of Appeals for the Eleventh Circuit, Routly v Singletary, 33 F3d 1279, 1286 (CA 11, 1994), concluded that when “testimony concerning [a witness’s] understanding was, at worst, equivocal, [it was] not so misleading as to require corrective action by the state.” Further, while Routly expressly acknowledged DeMarco, it nonetheless held that “[t]here is no violation of due process resulting from prosecutorial non-disclosure of false testimony if defense counsel is aware of it and fails to object.” Id.Similarly Sanfilippo, was quickly distinguished within its own circuit. See United States v Antone, 603 F2d 566, 571 (CA 5, 1979). Interestingly, in Beltran v Cockrell, 294 F3d 730, 736-737 (CA 5, 2002), the United States Court of Appeals for the Fifth Circuit explained that “[t]he Sanfilippo court did not deal with the situation presented here, where the prosecution used the false testimony consciously allowed by the defense as part of a legal strategy.” (Emphasis added.) Likewise, defense counsel in this case chose as part of his trial strategy to ignore Yancy’s testimony and instead represent to the jury that Yancy and the prosecution had a tacit agreement that Yancy would not be charged for any crime in exchange for his testimony against defendant.
Finally, the majority’s reliance on Jenkins is misplaced because that court expressly stated that defense counsel, unlike defense counsel in this case, had not relied on the witness’s problematic testimony to advance a strategic or tactical omission at trial. In sum, the cases the majority cites are easily distinguishable. Moreover, the majority uses these cases for a proposition that has been rejected by more recent cases in those same circuits. In fact, a majority of federal courts have rejected the rule the majority now invokes. See footnote 18 of this opinion.The dissent insists that the prosecution‘s duty to correct false testimony under Napue, 360 US at 269, must be coupled with the separate, though often overlapping, duty to disclose exculpatory information under Brady, 373 US at 87. The dissent consequently asserts that “[i]t is the secreting of evidence that is offensive to due process.” Post at 499. We agree that the secreting of evidence violates due process, but so too does a prosecutor‘s exploitation of false testimony by a state witness to gain a conviction, whether done together with a failure to disclose or not. In many cases, dereliction of both duties happens in tandem when a witness falsely testifies about an undisclosed cooperation agreement. But they need not happen together, and when they do not, the prosecution‘s Napue duty is not mitigated because it complied with its Brady duty. See Jenkins, 294 F3d at 296; Sanfilippo, 564 F2d at 178-179; DeMarco, 928 F2d at 1076-1077; Belmontes v Brown, 414 F3d 1094, 1115 (CA 9, 2005) (“Whether defense counsel is aware of the falsity of the statement is beside the point. ... The prosecutor‘s duty to correct false testimony arises, not simply out of a duty of fairness to the defendant, but out of the free standing constitutional duty of the State and its representatives to protect the system against false testimony.“), rev‘d on other grounds sub nom Ayers v Belmontes, 549 US 7; 127 S Ct 469; 166 L Ed 2d 334 (2006) (citations and quotation marks omitted). The dissent‘s argument to the contrary is not supported by the authority it cites. Routly v Singletary, 33 F3d 1279 (CA 11, 1994), for example, does not address the idea that all Napue violations must accompany Brady violations. Rather, Routly involved unsuccessful and overlapping Brady and Napue claims, but each was denied because the prosecution had complied with each duty. Id. at 1284-1287.
Furthermore, the post-Sanfilippo cases in the United States Court of Appeals for the Fifth Circuit that the dissent cites certainly did not distinguish Sanfilippo‘s relevance in cases in which, as here, the prosecutor capitalized on a freestanding Napue error. Compare Sanfilippo, 564 F2d at 178-179 (concluding that there was no waiver when the prosecutor failed to correct and subsequently capitalized on the false testimony), with Beltran, 294 F3d at 736-737 (concluding that Sanfilippo was inapposite because the prosecution had not “used the false testimony consciously allowed by the defense as part of a legal strategy“), and United States v Antone, 603 F2d 566, 570-571 (CA 5, 1979) (concluding that Sanfilippo was inapposite because it involved false testimony of “far more serious impact,” i.e., relating to the conditions of the witness‘s plea deal for his testimony, while Antone simply involved an arrangement to have legal counsel appointed for the witness). And indeed, at least one post-Sanfilippo case from the Fifth Circuit has affirmed Sanfilippo‘s rule that a prosecutor‘s capitalizing on false testimony might result in a due process deprivation even when the defense can be charged with knowledge of the evidence. See Barham, 595 F2d at 243 (stating that the prosecutor‘s “misleading questions ... reinforced the deception” and “undermine[d] the Government‘s argument that defense counsel waived the false evidence issue” by virtue of his knowledge of the falsity).
There is no question that the prosecution complied with its Brady obligation regarding Yancy‘s compensation for his cooperation. Yet when Yancy‘s trial testimony did not reflect the true nature of his agreement, instead of clarifying, the prosecutor exploited the testimony to her advantage. This due process error stands apart from a failure to disclose. See Jenkins, 294 F3d at 296 (stating that “the prosecutor‘s actions cannot be overlooked” on the ground that defense counsel knew about and “did not continue to seek to gain an admission from [the witness] as to [his] plea agreement“); Napue, 360 US at 269 (stating that the duty to correct false evidence arises “when it appears“). The dissent‘s understanding that any Napue violation is only meaningful when coupled with a Brady violation simply misunderstands the separate duties.
Barker v Wingo, 407 US 514, 530-533; 92 S Ct 2182; 3 L Ed 2d 101 (1972). Giglio, 405 US at 154, quoting Napue, 360 US at 269 (emphasis added).[a]s to many decisions pertaining to the conduct of the trial, the defendant is deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be charged upon the attorney. Thus, decisions by counsel are generally given effect as to what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence. Absent a demonstration of ineffectiveness, counsel‘s word on such matters is the last. [Hill, 528 US at 115 (citations omitted).]