Summary
recognizing that under circumstances in which the witness's appeal of his conviction was pending he could still exercise his privilege against self-incrimination
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Docket No. 56005.
Argued February 5, 1976 (Calendar No. 13).
Decided February 15, 1977.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Joel B. Saxe, Senior Assistant Prosecuting Attorney, for the people.
Thomas R. McCombs for defendant.
Joseph Giacalone, Caesar Montevecchio and Loren Jolly were charged with armed robbery.
MCLA 750.529; MSA 28.797.
Jolly was separately tried and convicted. Giacalone and Montevecchio were tried together and convicted.
In this appeal of Giacalone's conviction, he asserts that, in calling Jolly as a witness knowing that he would claim the privilege against self-incrimination, the prosecutor acted improperly.
Montevecchio appealed separately; his conviction was reversed because of improper closing argument by the prosecutor. People v Montevecchio, 32 Mich. App. 163; 188 N.W.2d 186 (1971).
Giacalone's conviction was affirmed by a different panel of the Court of Appeals, People v Giacalone, 52 Mich. App. 428; 217 N.W.2d 444 (1974), which found the same remarks not to be sufficiently prejudicial to merit reversal in the absence of timely objection and request for a cautionary instruction.
Jolly's conviction was affirmed on appeal but sentence was vacated and the cause was remanded for sentencing because "the trial judge impermissibly considered certain matters in the sentencing process". People v Jolly, 51 Mich. App. 163; 214 N.W.2d 849 (1974).
Charles Kinsman, a confederate turned state's witness, testified that he drove a getaway car. Jolly and Montevecchio entered a jewelry store and committed the robbery. Giacalone drove another getaway car.
Giacalone's roommate testified that on the morning of the robbery Giacalone awakened him and told him to leave the apartment because he thought the police were outside. Jolly was in the living room sorting jewelry. Montevecchio came in as the roommate was leaving.
Kinsman identified a necklace he had retrieved from Giacalone's sister; he said Giacalone had taken it from the stolen jewelry. The sister testified that Giacalone had given her a necklace two months after the robbery, that Kinsman had stolen the necklace from her, and that the necklace introduced at trial was not the one her brother gave her. Giacalone's mother corroborated her daughter's testimony.
Jolly's attorney advised the judge and other counsel that Jolly would claim his Fifth Amendment privilege and refuse to testify. The prosecutor was permitted, over objection, to call Jolly to the stand. He asked two questions and when Jolly invoked the privilege sat down:
Although Jolly had already been convicted, an appeal was pending. He could still exercise the privilege. See People v DenUyl, 318 Mich. 645; 29 N.W.2d 284 (1947).
" Q. What is your name?
" A. Loren Jolly.
" Q. Mr. Jolly, do you recall the date of August 15, 1967?
" A. By advice of counsel, I refuse to answer on the ground that it may tend to incriminate me."
A lawyer may not knowingly offer inadmissible evidence or call a witness knowing that he will claim a valid privilege not to testify. The American Bar Association standards relating to the prosecution and defense functions provide that it is unprofessional conduct for a prosecutor or a lawyer representing a defendant
— "knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury to offer inadmissible evidence";
ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function (Approved Draft, 1971), § 5.6(b) (the prosecution function) and § 7.5(b) (the defense function).
— "to call a witness who he knows will claim a valid privilege not to testify, for the purpose of impressing upon the jury the fact of the claim of privilege."
Id, § 5.7(c) (the prosecution function) and § 7.6(c) (the defense function).
The rationale of the rule has been explained by the Supreme Court of Iowa:
"When an alleged accomplice invokes the privilege in the presence of the jury, prejudice arises from the human tendency to treat the claim of privilege as a confession of crime, creating an adverse inference which an accused is powerless to combat by cross-examination." State v Allen, 224 N.W.2d 237, 241 (Iowa, 1974).
The commentary accompanying the ABA Standards similarly states that the rule against calling a witness knowing that he will exercise a valid privilege not to testify is grounded in "`the impossibility of effective cross-examination and the possibility that the jury may give inferences from the claim of privilege more weight than they deserve.' Note, [Exercise of the Privilege Against Self-Incrimination by Witnesses and Codefendants: The Effect Upon the Accused,] 33 U Chi L Rev 151, 154[165] (1965)." ABA Standards, supra, commentary accompanying the prosecution function, § 5.7, p 125. See, generally, Anno: Prejudicial effect of prosecution's calling as witness, to extract claim of self-incrimination privilege, one involved in offense with which accused is charged, 86 ALR2d 1443.
There is disagreement whether a claim of the self-incrimination privilege logically supports an inference of guilt. While the law draws no such inference, "the layman's natural first suggestion would probably be that the resort to privilege in each instance is a clear confession of crime". 8 Wigmore, Evidence (McNaughton rev), § 2272, p 426.
Our holding is based on evidentiary trial error. A number of recent decisions finding error in a prosecutor's calling and questioning a witness he knows will claim the privilege do so on Sixth Amendment grounds — the defendant was denied his right of confrontation because the inference is not subject to cross-examination. See State v Nelson, 72 Wn.2d 269; 432 P.2d 857 (1967); Commonwealth v Terenda, 451 Pa. 116; 301 A.2d 625 (1973); and Robbins v Small, 371 F.2d 793 (CA 1, 1967), cert den 386 U.S. 1033; 87 S Ct 1483; 18 L Ed 2d 594 (1967). See also Douglas v Alabama, 380 U.S. 415; 85 S Ct 1074; 13 L Ed 2d 934 (1965).
We see no need to reach the constitutional issue. Difficulty in obtaining effective cross-examination has been a traditional reason for excluding evidence — for example, hearsay.
A number of state courts have reversed convictions where a prosecutor called an accomplice knowing that he would exercise his Fifth Amendment privilege. State v Duhon, 332 So.2d 245 (La, 1976); Johnson v State, 158 Tex Crim 6; 252 S.W.2d 462 (1952); De Gesualdo v People, 147 Colo. 426; 364 P.2d 374; 86 ALR2d 1435 (1961). Cf. State v Vega, 85 N.M. 269; 511 P.2d 755 (Ct App, 1973).
Michigan case law recognizes the danger that an adverse inference may be drawn from a claim of testimonial privilege. It has been held to be error for a prosecutor to call a witness, forcing the defendant in the jury's presence to claim the marital privilege or the attorney-client privilege.
See People v Trine, 164 Mich. 1; 129 N.W. 3 (1910) (marital), and People v Dahrooge, 173 Mich. 375; 139 N.W. 22 (1912) (attorney-client).
When Jolly declined to answer whether he recalled "the date of August 15, 1967", the date of the offense, on the ground that his answer "may tend to incriminate me" the jury may have inferred that the answer if given would have been favorable to the prosecution. The jurors were informed through Kinsman's testimony that Jolly and Giacalone had committed the offense. Jolly was thus connected to Giacalone. An adverse inference from Jolly's refusal to answer may have carried over to Giacalone.
Giacalone's counsel vigorously objected to the calling of Jolly. No instruction concerning Jolly's claim of privilege was given.
The judge instructed that Jolly was not a party to the case and that the disposition of his case had no bearing on the guilt or innocence of Montevecchio and Giacalone. He further instructed that no adverse inference should be drawn from the failure of Montevecchio and Giacalone to testify. There was, however, no instruction that an adverse inference should not be drawn against Montevecchio and Giacalone as a result of Jolly's counsel's objection to the questions put to Jolly and his refusal to testify on the ground that his testimony might incriminate him.
Asking a jury not to draw an adverse inference from a witness's claim of privilege may underscore the inference; even if some or all the jurors had missed the inference, the instruction will draw it for them. Our disposition makes it unnecessary to consider whether an instruction would cure the error.
In United States v Maloney, 262 F.2d 535, 538 (CA 2, 1959), Judge Learned Hand, speaking for the Court, felt constrained to hold, on the basis of the case law at the time, that an instruction would cure the error but he said:
"As res integra, it is doubtful whether such admonitions are not as likely to prejudice the interest of the accused as to help them, imposing, as they do, upon the jury a task beyond their powers: i.e. a bit of `mental gymnastics,' as Wigmore § 2272 calls it, which it is for practical purposes absurd to expect of them."
Cases that grounded reversal on the Sixth Amendment have held that an instruction will not cure the error. See Commonwealth v Terenda, supra, and Robbins v Small, supra; San Fratello v United States, 340 F.2d 560 (CA 5, 1965).
A consideration militating against allowing the error to be cured by instruction is that it would in effect vest an unstructured discretion in judges to substitute an instruction of doubtful efficacy for compliance with the well-established rule. The rule would then become that a lawyer may not call a witness who he knows will claim the privilege unless the judge allows him to do so and cautions the jury not to draw an adverse inference.
The defendant duly objected, alerting both the prosecutor and the judge to the impropriety of what was proposed, in contrast with Namet v United States, 373 U.S. 179; 83 S Ct 1151; 10 L Ed 2d 278 (1963), where the prosecutor had a basis for believing that the privilege would not be exercised and it was debatable whether it could be validly claimed and where no objection was made.
As stated by the Court of Appeals of New Mexico:
"Nor can we agree with the proposition that defendant has the burden of showing prejudice. Under the circumstances of this case prejudice is presumed. Once the state has obtained the benefit of the inference of defendant's guilt, which is not subject to cross-examination, it cannot have the benefit of a presumption that this inference was not prejudicial and shift the burden to defendant to show there was prejudice." State v Vega, 85 N.M. 269, 272; 511 P.2d 755, 758 (Ct App, 1973).
Reversed and remanded.
KAVANAGH, C.J., and WILLIAMS, COLEMAN, FITZGERALD, and RYAN, JJ., concurred with LEVIN, J.
BLAIR MOODY, JR., J., took no part in the decision of this case.