PEOPLE OF MI V DONNELL LATRON THOMAS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 1, 1996
Plaintiff-Appellee,
v
No. 171264
LC No. 93-07410-FC-3
DONNELL LATRON THOMAS,
Defendant-Appellant.
Before: White, P.J., and Holbrook and P.D. Schaefer,* JJ.
PER CURIAM.
Defendant was charged with second-degree murder, MCL 750.317; MSA 28.549, felony
firearm, MCL 750.227b; MSA 28.424(2), and carrying a concealed weapon, MCL 750.227; MSA
28.424, in connection with the death of Curtis Madison. Defendant was convicted following a jury trial
of the lesser offense of voluntary manslaughter, MCL 750.321A; MSA 28.553, felony firearm and
carrying a concealed weapon. The court departed upward from the minimum guidelines range of two to
seven years for v
oluntary manslaughter and imposed a ten to fifteen year sentence, and sentenced
defendant to a concurrent two to five year term for carrying a concealed weapon, consecutive to the
mandatory two years for felony-firearm. Defendant argues he was denied a fair trial when the trial
court allowed the prosecution to call a witness knowing that the witness would refuse to testify, that the
prosecutor impermissibly bolstered the testimony of a former co-defendant, and that the court’s upward
departure from the sentencing guidelines was error. Finding the first issue dispositive, we reverse.
I
The events at issue occurred during a drive-by shooting around 9:30 p.m. on the evening of
February 13, 1993, on South Park Street in Saginaw. A blue Ford truck drove by and shot at cars
parked in a vacant lot which adjoined a house where a birthday party was being held. Shots were
returned. The victim, Curtis Madison (Curtis), was in the cross-fire area during the shooting, behind the
wheel in a car parked in the vacant lot, facing South Park Street. The prosecution’s theory was that
defendant, one of the men returning fire, was guilty of second-degree murder because he intended to kill
* Circuit judge, sitting on the Court of Appeals by assignment.
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one of the drive-by shooters, and even though he did not intend to shoot Curtis, his friend, he was guilty
of murder on the basis of transferred intent. The defense’s theory was that defendant did not fire the
bullet that struck Curtis.
At trial, there was testimony that Kishi Wesby gave a party the evening of February 13, 1993 at
her house on South Park Street and invited a number of friends and relatives, including defendant.
Defendant, Curtis, Tarkeus Gee, Robert Jamerson, Terry “Purple” King, and Marcus Wesby arrived at
the same time but in different cars and parked in the vacant lot. After the party had gone on for several
hours, the men left at about the same time along with Wesby’s aunt, Rose Wesby, and David Williams.
There was testimony that Curtis left before them. The men went to their cars and a blue truck drove by.
Bullets were fired from the truck. Jamerson and defendant returned fire. Jamerson used a .38 revolver.
Several persons testified that they saw defendant shooting, but only one identified the weapon as a nine
millimeter, the other one “assumed” it was a nine millimeter because he had heard defendant talk about
owning one. The witness who testified that defendant’s weapon was a nine millimeter also testified that
defendant shot toward the moving truck and did not shoot in the direction of Curtis’ parked car. The
shot that killed Curtis came from a nine millimeter weapon and it was determined that that bullet and two
others which left bullet holes in Curtis’ car came from the same weapon. Spent casings from both types
of weapons were found at the scene, fifteen of them from a nine millimeter weapon. There was expert
testimony that the bullet that killed Curtis did not come from the direction of South Park Street, but
rather entered Curtis’ car through the front passenger window.
On the third day of trial, a discussion was held out of the jury’s presence regarding Gee
testifying. Defense counsel stated that Gee told him he did not want to testify and that counsel was not
sure “whether he’s talking about exercising the Fifth Amendment or if this is just a refusal.” Defense
counsel stated that the prosecutor intended to put Gee in front of the jury, and that defense counsel
objected, citing People v Giacalone, 399 Mich 642; 250 NW2d 492 (1977). Defense counsel stated
that the first line of inquiry should be whether Gee was asserting his Fifth Amendment privilege. The
prosecutor responded that he had expected Gee to be a cooperative witness, as Gee had indicated in a
statement he gave to detectives that he had knowledge of the facts of the case. However, the
prosecutor later met with Gee in jail and stated that Gee from the outset indicated he had no intention of
testifying and
at no point during the conversations . . . indicated that his reluctance had anything to do
with a claim of privilege. It was simply that he wasn’t going to testify because—for
reasons that he wouldn’t tell us.”
I mean there was no indication that his refusal to testify was in any way related to a
claim of privilege, simply that it was uncooperative. He said he now saw absolutely no
reason that he should cooperate with us because he was in prison serving a sentence,
and there wasn’t anything that anybody, including this Court, could do to him.
I feel compelled to call him to the stand to show to the jury that he’s available as a
witness, that his choice—that his not testifying about the facts in this case is his choice.
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Witnesses have indicated that he was there at the scene and was in a position to see
what happened, and I feel obligated in the eyes of the jury to call him to see that his not
testifying about what he might know is his choice and not mine.
[DEFENSE COUNSEL]: Judge, I don’t think we should proceed on the basis of the
prosecutor’s conclusions about what his reasons are for not testifying. I think what
should happen here is Mr. Gee should have the opportunity to be advised of his rights,
at the very least by this Court, but I think really he should have an opportunity to have
the assistance of counsel.
THE COURT: Why?
[DEFENSE COUNSEL]: Because if he’s exercising the Fifth Amendment privilege, it
would be available to him. He should not be compelled to supply any incriminating
testimony against himself without being advised of his rights.
THE COURT: There is an alternative route, however, and that is—first of all, is he a
suspect?
[PROSECUTOR]: He is not a suspect. He has never been a suspect. I have never
heard anything either from him or from anyone else connected to this case that indicates
he could be a suspect. Simply that he was there; that when the shooting started, he got
underneath the back of his car, and this is what he told the detective-THE COURT: Do you want to make a verbal representation to the witness that if there
is any concern in his mind that the prosecutor will offer him immunity?
[PROSECUTOR]: I will.
THE COURT: Then if that’s the case, … he does not have a right not to testify.
[DEFENSE COUNSEL]: That’s true as long as the privilege and the immunity is
properly explained to him and he understands it, I would agree with the Court.
THE COURT: All right. With that in mind then, let’s assume that he’s concerned about
that and immunity is granted to him and he still refuses to testify, what do you want to
do? Would you agree then that the prosecutor still has a right to call him?
[DEFENSE COUNSEL]: Well, Judge, there’s another case here cited subsequent to
Giacalone, People v King . . . . [which adds to the Giacalone holding that “it is
inherently prejudicial for the prosecutor to put a witness on the stand] even where the
privilege is not asserted in the jury’s presence and where the witness’s testimony does
not directly incriminate the defendant.”
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So I don’t know—the defendant—I don’t know if it would incriminate himself. I’m not
sure. I don’t see a case directly dealing with what happens where you have a refusal to
testify that’s not related to privilege.
THE COURT: Well, what’s going to happen to him is he’s probably—he’s going to sit
in jail until that he decides that he wants to testify because he holds the keys to the cell
then. So—
***
What we’re going to do is get Mr. Gee and find out on the record what his intentions
are. And then, …, if he is asserting Fifth Amendment, then you can offer him immunity,
and that will be done with a written grant of immunity to follow.
***
(Witness escorted into courtroom)
***
THE COURT: It’s my understanding from … the prosecutor, and [defense counsel]—
they told the Court that you don’t intend to testify, and then there was some question
about why you weren’t going to testify, and I need to know what those reasons are.
Now, counsel, do you want to question Mr. Gee?
[PROSECUTOR]: I think maybe the more appropriate procedure since Your Honor is
familiar with the circumstances here would be for the Court to do it.
THE COURT: All right. Is there a problem, Mr. Gee?
MR. GEE: No.
THE COURT: All right. Do you intend to testify?
MR. GEE: No.
THE COURT: All right. What is the reason why?
MR. GEE: Because I don’t want to testify, and I don’t have a reason.
THE COURT: All right. . .
MR. GEE: I don’t want to testify.
THE COURT: All right. There must be a reason why you don’t want to, though.
-4
MR. GEE: No, there ain’t
THE COURT: There’s absolutely no—
MR. GEE: I’m saying why does there have to be a reason because I don’t want to
testify?
THE COURT: So you’re not refusing to testify because of Fifth Amendment rights, is
that correct?
MR. GEE: Yeah, I’m refusing on the Fifth Amendment. Is it more simple that way?
THE COURT: Well, I don’t care what your reason is, Mr. Gee. I need to know that
the reason is, however.
MR. GEE: There you go, Fifth Amendment.
THE COURT: So what is it?
MR. GEE: I don’t want to talk.
THE COURT: There’s a difference between not wanting to talk and asserting your
Fifth Amendment right because you believe that y may be implicating yourself or
ou
testifying against yourself.
MR. GEE: I can’t testify against myself. I didn’t do nothing.
THE COURT: What’s the last thing that you said? Get closer to the microphone.
MR. GEE: I cannot testify against myself because I didn’t do nothing.
THE COURT: All right. So what you’re saying is that you don’t – you’re not refusing
to testify because you may implicate yourself because you didn’t do anything, correct?
MR. GEE: Right.
THE COURT: All right. So there is not an assertion, the Court is finding, that there’s a
Fifth Amendment privilege being invoked here.
[DEFENSE COUNSEL]: Judge, I object. I don’t think the man has been properly
informed as to the scope of the Fifth Amendment or what his right would be in asserting
THE COURT: I’m going to give you an opportunity to question him, … so while –
because you’re on your feet, proceed.
-5
[DEFENSE COUNSEL]: Well, I’m not his attorney, Your Honor. I would object to
that also. I think that man should have his own counsel to discuss his own facts in a
reasonable manner between the two of them to form any conclusion. I’m not his
lawyer. I can outline what the rights are, but I don’t think that’s sufficient either. I
would object to that.
THE COURT: All right. First of all, the Court is finding that Mr. Gee is not asserting a
Fifth Amendment privilege since he’s made the statement he didn’t do anything. Do you
mean that you didn’t do anything in the scope of the activities of February 13, 1993?
MR. GEE: Right. I didn’t do nothing.
THE COURT: All right. It’s further my understanding, however, so that this record is
entirely clear, that the prosecutor would give to Mr. Gee a grant of immunity if there
were any question in Mr. Gee’s mind about his testimony implicating himself. Is that
correct?
[PROSECUTOR]: My understanding of the law is, Your Honor, that it’s not entirely
within the prosecutor’s power to grant immunity. We can petition the Court to grant
immunity. We would do so. Because this case is pending before this Court, I expect
such a petition would come to Your Honor, and I have at this point no reason to believe
that Your Honor would not grant it.
THE COURT: The Court would.
[PROSECUTOR]: But we certainly would petition the Court and do everything within
our power to obtain that grant of immunity.
THE COURT: All right. Mr. Gee, the Court is finding that you do not have a right – a
legal right not to testify. Now, it’s important that I know that you understand what I’m
saying. So that you do, the only person who has a legal right not to testify and to invoke
the Fifth Amendment is an individual who believes that he or she may implicate
themselves, maybe testifying against their own penal interests. So are we connecting?
Do you know what I mean?
MR. GEE: Yeah, I understand what you’re saying. But I’m just saying –
THE COURT: Listen to me.
MR. GEE: -- anything I say, it won’t implicate me as doing nothing. So I’m just saying
whatever I say, you know, I couldn’t say nothing anyway because I didn’t do nothing.
I’m just saying I don’t want to testify. There it is. The prosecutor came over with this
detective. They threatened me the other day. They told me if I didn’t testify, they was
going to stack my charges. They was going to try to charge me with something else and
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try to make my time longer while in the penitentiary. I told them I didn’t want to testify.
They can charge me and give me some more years, it wouldn’t bother me. Do you
know that I’m saying?
THE COURT: I hear you. Now, listen to what I’m saying. Under the law, you do not
have a right to refuse to testify. So are you refusing to testify?
MR. GEE: Right.
THE COURT: All right. Are there any questions of Mr. Gee then?
[PROSECUTOR]: None of Mr. Gee, no.
[DEFENSE COUNSEL]: Mr. Gee, you’re saying that when the prosecutor and the
detectives came to talk to you in the Saginaw County Jail, this was just a few days ago?
MR. GEE: It was two days ago exactly.
[DEFENSE COUNSEL]: And are you saying someone – who was there? Was it [this
prosecutor]?
MR. GEE: Yes, and Officer Bearss.
[DEFENSE COUNSEL]: All right.
MR. GEE: Or Detective Bearss, whichever one you want to call him.
[DEFENSE COUNSEL]: And you have told the judge that you interpreted some of
what they said to be threats directed towards you, is that right?
MR. GEE: It was threats.
[DEFENSE COUNSEL]: What was said?
MR. GEE: He – Officer Bearss got up and said – he said, I guess we’re going to have
to get him to testify a different route by charging him with obstructing justice. I told him
it don’t matter. I’ll be in prison until 1999 anyway, and a couple years more won’t
matter. And, you know, I refused to answer their questions. I told him to push the
button and call the guard to let me out the conference room.
So when he called – he pushed the button, I stood up. You know, they got in
my face and was telling me to sit down, and he grabbed me. I pulled away, and I told
him don’t touch me. He touched me again, and I pulled away again. Then the guard
came and opened the door, and he still was hollering, you know, and yelling at me like,
you know, as far as this makes a difference, but it didn’t.
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[DEFENSE COUNSEL]: So you were informed that you could be charged with
obstructing justice if you refused to testify?
MR. GEE: That’s what they said.
[DEFENSE COUNSEL]: I have no further questions, Your Honor.
* * *
[PROSECUTOR]: Now, prior to that time during our conversation, you had indicated
to us that you were not going to testify, period, had you not?
MR. GEE: Right.
* * *
[PROSECUTOR]: And you also indicated to us that you didn’t care what anybody
did, you didn’t care what the judge did, because you were already in prison and you
didn’t care – there was nothing she could to do you. Isn’t that a fair summary of what
you told us?
* * *
MR. GEE: I told him I wasn’t going to testify.
* * *
THE COURT: And that’s still your feeling; you’re not going to testify?
MR. GEE: Well, no, I ain’t. I don’t want to testify, and you know I ain’t –
THE COURT: Well, you know, Mr. Gee, none of the witnesses who come into court
want to testify. That isn’t the standard. You know, these jurors, they don’t want to be
here either. So my question to you is are you going to testify? I’m ordering you to
testify.
MR. GEE: No, I’m not going to testify.
***
THE COURT: Fine. All right. The Court finds you in contempt of court. We will
have a hearing later to dispose of your sentence. Get the jury. We are going to place
on the record from the defendant’s own testimony that he refuses to testify. We are not
going into any of this other stuff in front of the jury about the colloquy between Bearss
and Mr. Gee. We are not doing that.
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[DEFENSE COUNSEL]: That’s fine. May I make a statement, Your Honor?
THE COURT: Yes.
[DEFENSE COUNSEL]: I object to anything being done with this witness in
front of the jury. The thrust of Giacolone and King is the prejudice to the trial
of the defendant when the prosecutor’s allowed to introduce this type of
situation and the implications that come from it. It doesn’t matter from the
standpoint of the prejudice to the defendant whether it’s a properly asserted
privilege or the extent of it. That’s what King says. Whatever the man’s doing
for whatever reasons should not be allowed to go in front of this jury to—
THE COURT: Why should the jury be able to speculate that there is a witness, and
you know as well as I do, …, there is an instruction when the People do not produce a
witness that is very strong language against the prosecution. So the jury should be able
to know why a witness was not produced and what the truth is in that matter.
***
[DEFENSE COUNSEL]: . . . Now, this man has not had the opportunity to consult
with counsel. He hasn’t had anything but the direct questioning from this Court and the
prosecutor and myself in this setting as to what his rights are. Nobody’s told him.
Nobody’s taken him back to even talk to the man.
THE COURT: He doesn’t have any right not to testify, …. He does not. He has no
Fifth Amendment right. I’m bringing the jury in. …
***
(Jury returns at 9:40 a.m.)
***
BY [PROSECUTOR]:
Q Mr. Gee, would you tell the Court and jury your full name please.
A (Shaking head).
Q Mr. Gee, the court reporter can’t record a nod of the head.
A Well, I’m making sure—I want—I’m refusing to say anything until I get a legal
representative.
THE COURT: Mr. Gee, we’ve had a hearing. The Court is ordering you to testify.
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THE WITNESS: I’m refusing to say anything.
THE COURT: Are you refusing to testify?
THE WITNESS: I’m refusing to say anything until I get a legal representative.
THE COURT: All right. Deputy, will you take control of Mr. Gee, and the Court has
found Mr. Gee in contempt of court. You may call your next witness.1
Trial continued and the jury found defendant guilty of the lesser offense of voluntary manslaughter, felony
firearm and carrying a concealed weapon. At sentencing, two persons addressed the court, the victim’s
mother and sister, both of whom urged the court not to impose a harsh sentence on defendant. The trial
court concluded that there had been an intentional killing without excuse and that the jury had been
sympathetic to defendant because Curtis was his friend. On this basis, the court departed upward from
the sentencing guidelines’ minimum range of two to seven years, sentencing defendant to ten to fifteen
years.
II
Defendant first argues that he was denied a fair trial and his right of confrontation by the court’s
allowing the prosecutor to call Gee to testify, after Gee had stated outside the jury’s presence that he
would refuse to testify. We agree.
A lawyer may not knowingly offer inadmissible evidence or call a witness knowing he will claim
a valid privilege not to testify because invocation of a privilege in the jury’s presence results in prejudice
to the defendant, which arises from the human tendency to treat the claim of privilege as a confession of
crime, thereby creating an adverse inference which the accused is powerless to combat by cross
examination. Giacalone, 399 Mich at 645; People v Dyer, 425 Mich 572, 576; 390 NW2d 645
(1986). In Giacalone, the Supreme Court reversed and remanded Giacalone’s conviction of armed
robbery on the ground of prosecutorial misconduct, the prosecutor having called a codefendant, who
had already been convicted and had an appeal pending, knowing that he would invoke the Fifth
Amendment. The prosecutor called the co-defendant over defense counsel’s objection, and asked the
co-defendant his name, to which the co-defendant responded with his name, and then asked if he
recalled the date of August 15, 1967, to which the co-defendant responded: “By advice of counsel, I
refuse to answer on the ground that it may incriminate me.” Id. at 644 and n 3. No further questioning
occurred. Id.
People v Poma, 96 Mich App 726, 733; 294 NW2d 221 (1980), extended the exclusionary
rule of Giacalone by holding that “it is inherently prejudicial to place a witness on the stand who is
intimately related to the criminal episode at issue, when the judge and prosecutor know that the witness
will properly or improperly assert the Fifth Amendment privilege against self-incrimination.” (Emphasis
added.) The defendant in Poma was convicted of possession with intent to deliver marijuana. The
owner of the car from which the marijuana was seized was endorsed as a witness, and at an evidentiary
hearing outside the jury’s presence, he asserted his Fifth Amendment privilege. The trial court
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determined the witness had no valid Fifth Amendment privilege and, even if he did, he had waived it.
The witness was questioned at trial without benefit of counsel, and answered many questions with “I
don’t remember.” The Poma court sua sponte addressed the issue whether the witness’ attempted on
the-stand assertion of the privilege prejudiced the defendant, noting “When a witness who is
substantially related to the criminal episode, such as an accomplice, asserts this privilege, critical weight
is added to the prosecution’s case.” Id. at 730. Further, the validity of the witness’ privilege has no
bearing on the prejudice that results to the defendant when that witness repeatedly asserts the Fifth
Amendment. Id. at 731. The Poma court set forth the protective measures to be taken by trial courts
in this situation:
The Court should first hold a hearing outside the jury’s presence to determine if the
intimate witness has a legitimate privilege, as was done in the instant case. This
determination should be prefaced by an adequate explanation of the self-incrimination
privilege so the witness can make a knowledgeable choice regarding assertion. This
was not done in the instant case. In fact, when asked if he understood the privilege, the
witness commented “Nobody’s explained it to me, but I can figure it out myself.” We
do not believe that the burden of comprehending the privilege should rest with
witnesses; the responsibility of informing must be the court’s.
If the court concludes that the witness has no legitimate privilege, it should consider
contempt penalties or other alternate remedies against the witness. Yet, with respect to
the defendant, the court must proceed to determine if the witness intends to assert that
privilege, whether validly or invalidly, at trial. If the intimate witness intends to
claim the protection of the Fifth Amendment at trial, there really is no way to
prevent prejudice to the defendant absent barring the witness. As other
jurisdictions have noted, a cautionary instruction that no negative inference is
to be drawn from the witness’s taciturnity is ineffectual.
***
We hold that it is inherently prejudicial to place a witness on the stand who is
intimately related to the criminal episode at issue, when the judge and
prosecutor know that he will assert the Fifth Amendment privilege. When a
judge determines at the evidentiary hearing that the intimate witness will either
properly or improperly claim the protection against self-incrimination, he must
not allow this witness to be called to the stand. [Id. at 732-733. Citations
omitted.]
Subsequent to Poma, the Supreme Court applied the Giacalone exclusionary rule to a witness
in Dyer, supra, who was neither an accomplice or codefendant, nor had charges been brought against
him. Id. at 578. Holding that the exclusionary rule articulated in Giacalone, applied equally to
prosecutor and defense counsel, the Dyer Court reversed this Court’s holding that the trial court erred
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by excluding the witness after appointed counsel for the witness disclosed at a hearing outside the jury’s
presence that the witness would invoke the Fifth Amendment. 2
The Poma protective measures were subsequently applied in People v Paasche, 207 Mich
App 698, 709; 525 NW2d 914 (1994), which held that the prosecution’s questioning of the defendant
and her accountant, in response to which both invoked the accountant-client privilege in front of the
jury, denied the defendant a fair trial. The Paasche court noted that if the assertion of the privilege is
not legitimate in the opinion of the trial judge, the court must then consider methods to induce the
witness to testify, such as contempt and other proceedings. But if the witness continues to assert the
privilege, the court must proceed to trial without the witness, because there is no other way to prevent
prejudice to the defendant. Id. at 709-710. See also People v King, 131 Mich App 542, 548-549;
346 NW2d 51 (1983), which followed Poma and held that it is reversible error for the court to allow
the prosecution to call an accomplice of the defendant, knowing that the accomplice would validly claim
the privilege against self-incrimination, even though the witness did not assert the privilege when called
and no incriminating testimony was elicited.
Here, although the trial court conducted an evidentiary hearing outside the jury’s presence, it did
not adequately explain the Fifth Amendment privilege to Gee. The court’s explanation followed its
finding that Gee did not have a right to refuse to testify. This error was, however, rendered harmless by
the court’s later appointment of counsel.3
Out of the jury’s presence, Gee made it clear beyond peradventure that he would not testify.
Under Giacalone and Poma, it was improper to call him to the stand thereafter. Gee invoked the Fifth
Amendment twice during the colloquy with the trial court. Even an improperly invoked assertion of the
privilege is sufficient to bar the witness from being called. Poma, supra.
We reject plaintiff’s argument that there was no reversible error because Gee did not assert a
Fifth Amendment privilege and he was not an alleged accomplice to the crime. Plaintiff argues that the
reasoning of Giacalone and Poma does not apply because the solicitation of Gee’s testimony did not
create a logical inference of defendant’s guilt. In this regard, the Poma Court noted:
If there is some connection between the defendant and the witness, often a jury will
illogically infer guilt of the defendant because of the refusal of the witness, with
knowledge of the facts, to testify. [96 Mich App at 731, quoting People v McNary,
43 Mich App 134; 203 NW2d 919, aff’d in part and rev’d in part 388 Mich 799
(1972).]
In the instant case, the jury was not told what role Gee had in the incident, and was not told that
Gee was not a suspect and was not involved in the incident. In fact, the jury had heard testimony that
Gee was present at the shooting, and was parked immediately alongside Curtis’ car. Gee’s car was
also next to Jamerson’s passenger side, from where defendant was alleged to have emerged and then to
have started shooting. The shot that killed Curtis was alleged to have come from the same general
direction as Gee’s car was parked. The prosecutor himself argued, albeit outside the jury’s presence, in
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relation to Gee’s being called to testify, that “witnesses have indicated that [Gee] was there at the scene
and was in a position to see what happened.” Although Gee was not a co-defendant, the jury could
have inferred that his refusal to testify until he spoke with a legal representative meant “that the answer if
given would have been favorable to the prosecution.” Giacalone, 399 Mich at 646. Gee was a
witness “substantially related to the criminal episode,” as stated in Poma. Under these circumstances,
the jury could have believed that Gee had intimate and important knowledge of the events and could
have inferred guilt on defendant’s part from Gee’s refusal to testify. Further, it was undisputed that the
drive-by shooting was related to gang activity. Gee was a member of the same gang as Curtis and
defendant.
Further, it is not pertinent that when Gee took the stand he did not use the words ”Fifth
Amendment.” The exclusionary rule was applied in Poma when the witness at issue, once called to the
stand, invoked no privilege. Here, Gee refused to “say anything until I get a legal representative.” This
was stated twice in front of the jury. The effect on the jury is the same as if Gee had invoked the
privilege. There was a refusal to testify on the basis of an asserted legal right.
Plaintiff urges us to apply McNary, supra, in which this Court held that it was not reversible
error for the trial court to permit the prosecution to call a witness to the stand knowing he would assert
the Fifth Amendment because the witness was neither an accomplice nor a co-defendant, and defense
counsel had neither objected nor requested a cautionary instruction. McNary was decided before
Giacalone, Poma and King, supra, and, in any case, is distinguishable because defense counsel in the
instant case placed repeated objections on the record.
Another case plaintiff cites, People v Castaneda, 81 Mich App 453, 458; 265 NW2d 367
(1978), is also distinguishable, as the issues in that case centered on the propriety of using the former
testimony of a witness who asserts the Fifth Amendment privilege. The witness at issue in Castaneda
was a paid police informant who testified at the defendant’s preliminary examination that he and the
defendant arranged a drug sale to an officer, and that the defendant provided him with a heroin sample,
took the heroin and placed it in some bushes. Id. at 456-457. Based on the informant’s testimony, the
defendant was bound over for trial. The defendant pleaded guilty of possession of heroin but later
moved to vacate the plea. At the hearing on the motion, the paid informant repudiated his preliminary
examination testimony, stated the heroin belonged to him, and claimed that the real drug dealer was
another person named Garcia. The defendant’s guilty plea was vacated and the trial judge
recommended perjury charges against the informant. The defendant was later convicted of the drug
charge, and on appeal argued the informant was improperly declared an unavailable witness—thus
permitting the introduction of his testimony from the preliminary examination—when he invoked the Fifth
Amendment because of pending perjury charges. This Court held that the trial judge properly ruled that
in asserting the privilege, the informant had made himself “unavailable” at trial. Id. at 458.
The Castaneda court also rejected the defendant’s argument that the trial judge should have
sua sponte instructed the jury not to draw any adverse inferences from the informant’s failure to testify,
as the defendant had not requested the instruction and on the basis that no manifest injustice resulted
because both the preliminary exam testimony and the plea revocation testimony was read to the jury and
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the informant had given testimony favorable to and exculpating the defendant. Id. at 464. In this
regard, and this is the aspect of Castaneda plaintiff relies on, the Castaneda Court distinguished
Giacalone as having involved Giacalone’s charged accomplice. The point in Castaneda is not that a
jury is likely to draw adverse inferences only from alleged accomplices’ invocations of the Fifth
Amendment, but that in Castaneda, the informant’s plea revocation hearing testimony having been
before the jury and being exculpatory of the defendant, the court was able to conclude that “it [was]
unlikely any inference adverse to defendant would result from his taking the Fifth Amendment.” Id. at
464.
Lastly, we note that defendant did not assert that he would be entitled to an instruction that the
jury should draw an adverse inference from the prosecutor’s failure to present Gee’s testimony, and any
unfairness the trial court perceived might have resulted from Gee’s failure to testify could have been
cured by measures far short of having him refuse to testify and be held in contempt in front of the jury.
We conclude that the trial court erred in allowing the prosecution to call Gee so that he could
refuse to testify in front of the jury, that the error was inherently prejudicial, Poma, 96 Mich App at
733, and was injected into the proceedings by the prosecution. We therefore reverse. Id.; King, 131
Mich App at 549-550.
Although the evidence tended to show that defendant was the only one of the group returning
fire at the drive-by truck with a nine millimeter weapon, there was testimony that shots were also heard
from behind Kishi Wesby’s house. A officer involved in the investigation testified that Williams told
n
him that Marcus Wesby had a gun at the time of Curtis’ shooting, along with defendant and Jamerson,
and that Williams said he saw the three men shooting. Williams said he believed that Wesby had a .32
caliber gun. However, the officer testified there was no indication at the scene that a .32 caliber gun had
been used. Although it was undisputed that the shot that killed Curtis did not come from the direction of
South Park Street, testimony from the sergeant at the Bridgeport Crime Lab admitted as a firearms
expert was that the trajectory paths of the bullet holes found in Curtis’ car went back to the frame of a
window at the rear of Wesby’s house, although he was unable to say where along the trajectory path
the shots were fired. Further, while the firearms expert testified that the shots that entered Curtis’ car
were at heights of 32”, 34 ¾”, and 47” off the ground, the only testimony regarding defendant’s height
was that he was six feet tall or taller, and the only person who testified as to defendant’s stance while he
shot testified that defendant was holding his arm out at shoulder level.
Reversed and remanded for a new trial.
/s/ Helene N. White
/s/ Donald E. Holbrook, Jr.
/s/ Philip D. Schaefer
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1
Following this colloquy, three witnesses testified. The jury was then excused and the court stated that,
after Mr. Gee’s testimony, the court had appointed counsel for him, Mr. Jensen. Mr. Jensen then
addressed the court and stated he had discussed the matter with Mr. Gee and “told him he has no legal
rights that I’m aware of based upon the facts I have that he would have any legal right not to testify. His
only question is how much time he gets for contempt of court.” Both counsel stated they did not want
to question Mr. Jensen.
2
Dyer was a prosecution for carrying a concealed weapon. The witness at issue, Johnson, was with
the defendant when two police officers approached them. The officers testified that the defendant
dropped a gun, while the defendant testified the gun was Johnson’s. Out of the jury’s presence,
Johnson’s appointed counsel indicated that Johnson would invoke the Fifth Amendment if called to
testify. The trial court held neither party could call Johnson, relying on Giacalone, supra. Id. at 574.
3
The court later appointed counsel. After conferring with Gee, counsel agreed that Gee could not
properly invoke the Fifth Amendment. Apparently, Gee’s discussion with counsel did not change his
mind. See n 1, supra.
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