PEOPLE OF MI V PATRICK BURTON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 30, 2002
Plaintiff-Appellee,
v
No. 228026
Wayne Circuit Court
LC No. 99-008219
PATRICK BURTON,
Defendant-Appellant.
Before: O’Connell, P.J., and White and Cooper, JJ.
WHITE, J. (concurring in part and dissenting in part).
Regarding the issue whether the trial court intimidated Williams into remaining silent
(Issue I), I do not agree with the majority that the issue was unpreserved.1 Nor do I agree that the
trial court’s action was proper.
At the outset, I note that defendant was bound over based on Williams’ preliminary
examination testimony alone, and that Williams was the only alleged eyewitness to the murder.
On the record discussions pertinent to this issue began before jury selection, when both counsel
brought to the trial court’s attention that Williams had stated that the actual events were different
than as stated at the preliminary examination, that he had inquired into the penalties for various
offenses, and had asked about the Fifth Amendment. Both counsel asked that counsel be
appointed for Williams.
Counsel was appointed for Williams, was fully informed of the situation, and was given
time to advise and consult with Williams. Counsel for Williams then addressed the court:
I’ve been appointed to represent Mr. Williams and to counsel him in the case
presently pending before the court.
I have had an opportunity to discuss the matter with him, and advise Mr. Williams
of those rights, constitutional rights, and applicable statutes that I think would be
– may impact on his decision to testify here today.
1
Trial counsel objected that the court was creating a “chilling effect” on the witness’s testimony.
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He does intend to give testimony in this matter. He does understand, in my
opinion, that should his testimony –that he can remain silent should his testimony
implicate him in matters pending before the court.
Understanding that, Mr. Williams is prepared to go forward and offer testimony
today. [Emphasis added.]
The court then proceeded to question Williams, establishing that he had had an
opportunity to discuss the matter with his attorney, and that he was not on trial. In response to
the court’s questioning Williams stated that he intended to tell the truth and that he had not been
threatened by anyone. The court elicited testimony that Williams intended to testify differently
than at the preliminary examination and that he had lied at the preliminary examination. The
court then addressed the matter of the penalty for perjury and continued to inquire into Williams’
relationship with defendant. After the court again asked whether defendant was under oath at the
preliminary examination and whether he lied, Williams’ counsel intervened, consulted with
Williams, and Williams invoked the Fifth Amendment. The court continued to question
Williams and to stress the threat of perjury.
The record establishes that before the trial court made its remarks to Williams, counsel
had already been appointed for Williams and appointed counsel had stated on the record that he
had discussed Williams’ Fifth Amendment rights with Williams, and Williams had decided to
testify. Viewed in their full context, the court’s remarks, which were addressed directly to
Williams, improperly encouraged Williams not to testify, and went considerably beyond warning
Williams about the possibility of incriminating himself. Indeed, after Williams stated to the trial
court his intent to testify at trial, the trial court told Williams that he could receive up to fifteen
years imprisonment for perjury,2 and later stated: “If the Court determines that you, in fact, have
committed perjury, I can guarantee you what’s going to happen, Mr. Williams.”
Williams should have been allowed to testify at trial as he intended. The prosecution
would have been able to inquire into Williams’ relationship and interactions with defendant, and
to impeach him with his prior testimony and statements, using the prior testimony as substantive
evidence. MRE 801(d)(1)(A). The jury would have been left to decide which version was
credible. See e.g., United States v Arthur, 949 F2d 211, 215-216 (CA 6, 1991), in which the
court stated:
The district court has the discretion to warn a witness about the possibility of
incriminating himself. United States v Silverstein, 732 F.2d 1338 (7th Cir. 1984),
cert. denied, 469 U.S. 1111, 105 S.Ct. 792, 83 L.Ed.2d 785 (1985). An abuse of
that discretion can occur, however, when the district court actively encourages a
witness not to testify or badgers a witness into remaining silent. Indeed, Webb v.
Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972), holds that such is a
violation of due process. Larry Fields was represented by counsel and stated to
the district court that he wanted to testify after he had been informed by the court
of his right to remain silent. The district court repeatedly informed Fields of his
2
The court later corrected itself and stated that the penalty was actually life.
-2-
right to remain silent and stated to him that to testify was against his interest.
Under these circumstances, we think it was an abuse of the district court’s
discretion to so induce Larry Fields to exercise his fifth amendment rights. Id. at
97, 93 S.Ct. at 353.
See also, Anno: Admonitions against perjury or threats to prosecute potential defense witness,
inducing refusal to testify, as prejudicial error, 88 ALR4th 388, § 13 (1991) (discussing Arthur,
supra, and additional cases in which “the trial judge’s alleged conduct either constituted
prejudicial error or could support a finding of prejudicial error on remand.”)
I agree with the majority on the remaining issues.
/s/ Helene N. White
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