People v. Atkins

Defendant Clarence Atkins stands convicted by a jury of sale of heroin. His conviction was affirmed by the Court of Appeals at 47 Mich App 558; 209 NW2d 735 (1973). We likewise affirm after having examined and answered the following questions in the negative:

(1) Whether reversal is required because the trial court did not sua sponte instruct the jury that the testimony of an addict-informer was to be received with care and caution;

(2) Whether the uncorroborated testimony of an addict-informer is insufficient as a matter of law to make a jury-submissible issue on defendant’s guilt; and

(3) . Whether the jury was misled by a failure to disclose the possibility of future favorable treatment for the addict-informer testifying against defendant.

The indictment alleged that the unlawful sale took place on or about March 12, 1971, in the City of Kalamazoo. Testimony at trial indicated that in the afternoon of that date, one Edward Nero telephoned the Kalamazoo Police Department and informed a Detective Walker that Nero had arranged to purchase heroin from the defendant. Nero had been an informer for that department for some six months. Around 10 p.m., Detective Walker and a policewoman met Nero near the place of the arranged purchase. Walker, who had worked with Nero on previous occasions, performed a pat-down search of Nero’s person and searched Nero’s car by looking on the front and rear seats, under the seats and in the glove compartment. Walker gave Nero a $20 bill after recording the serial number. Nero then drove his car to the place where the purchase was to be made. Walker and the policewoman followed in their unmarked vehicle. They saw Nero disappear behind a house located at 216 W. Patterson Street. They saw him emerge from behind that house 10 minutes later, get back into his car, and drive to the original meeting place where he turned over to them two packets of what subsequently proved to be heroin.

Nero’s testimony supplied the only evidence directly linking defendant with the sale. The fact of Nero’s long history of heroin use, his criminal record, and his possible motives for fabrication were thoroughly explored by defense counsel. Defense counsel highlighted several contradictions in Nero’s testimony. It was also revealed that there was a breaking and entering charge pending against Nero and that he was in jeopardy of probation revocation. By questioning a Kalamazoo County Sheriffs deputy, it was revealed that when Nero was arrested in late January 1971 on the breaking and entering charge, Nero proposed a deal whereby he would become an informer for the sheriffs department in return for dismissal of the charge. However, the deputy testified that no such agreement was made.

Defense counsel did not request any special jury instructions pertaining to Nero’s credibility, and stated that he had no objections to the instructions that were given. The jury, having full knowledge of Nero’s character, history, and possible expectations of reward, returned a verdict on August 12, 1971, of guilty as charged.

On November 29, 1971, the prosecutor petitioned for nolle prosequi of the breaking and entering charges pending against Nero, on the grounds that he had returned the stolen property and had "rendered great assistance in the area of the narcotics traffic within Kalamazoo County” including testimony which had "resulted in pleas and convictions regarding narcotics violations”. The petition for order of nolle prosequi was granted by the circuit court.

I

The trend of Federal criminal trial practice is now to require a special cautionary instruction regarding the testimony of government witnesses who are narcotics addicts and who are paid informers or who have criminal charges against them. In Michigan, there is no similar tradition of judicial decision in the area of special instructions pertaining to the credibility of addict-informers. This may be due to the fact that state courts in general have retreated further than Federal courts from the common-law tradition of liberal judicial comment on the evidence in jury trials.

Michigan statute and court rule condition the requirement of an instruction on a request therefor. This requirement is binding where, as here, defendant predicates no error on the instructions actually given, but rather contends that the trial court on its own motion should have instructed in an area where no tradition of state judicial decision exists. While this Court would not be adverse to a cautionary instruction where the uncorroborated testimony of an addict-informer is the only evidence linking the accused with the alleged offense, there must be a proper request. Focusing special attention or particular suspicion on a witness or class of witnesses can be a risky business. Both sides should be given the opportunity to develop the record with respect to the fairness of such a proposed instruction.

In People v McCoy, 392 Mich 231, 236-238; 220 NW2d 456 (1974), this Court dealt with a related area of jury instructions regarding the credibility of accomplices. A majority of this Court therein held prospectively that it would be reversible error "to fail upon request to give a cautionary instruction concerning accomplice testimony and, if the issue is closely drawn, it may be reversible error to fail to give such a cautionary instruction even in the absence of a request to charge”. This holding does not require reversal in the instant case, nor are we of the opinion that in the interests of justice it should be so extended. First, the McCoy rule under discussion was given prospective application for the reason that it went beyond long-established Michigan precedent to the effect that special instructions regarding credibility was a matter within the sound discretion of the trial court. Second, there was no imbalance in the instructions given in the instant case. In McCoy, error was found in the trial court’s failure to balance care and caution language actually used in the instruction on alibi with similar language relating to the accomplice who testified against the defendant. Third, the jury in the case at bar was fully apprised of the criminal past, and possible motivation of witness Nero. It would not be an unfair assessment of the record herein to say that as much testimony was elicited on the issue of Nero’s credibility as on that of defendant’s guilt or innocence. Defense strategy from the outset was to put witness Nero on trial. In the face of this clear strategy, we cannot assume that defense counsel lightly disregarded the possibility of requesting a cautionary instruction or that such an instruction would have been refused if requested. Under the circumstances, MCLA 768.29; MSA 28.1052, and GCR 1963, 516.1 and 516.2 are controlling.

II

Defendant urges this Court to follow the Illinois rule that the uncorroborated testimony of an addict-informer is insufficient as a matter of law to make a jury-submissible case, and that his motion to dismiss at the close of the people’s proofs should have been granted. Most recently, this Court has stated that it "has steadfastly supported the right of the trier of fact, particularly the jury, to believe, or disbelieve, in whole or in part, any of the evidence presented”. We hold that the credibility of an addict-informer, like that of an accomplice, is a jury question, and that the jury may convict on such testimony alone.

III

Defendant has produced no facts of record, by way of a motion for new trial based on newly-discovered evidence or otherwise, indicating that an agreement for Nero’s testimony existed at the time of trial. Instead, he asserts that it would be incredibly naive to believe that there was neither an actual nor incipient deal; that if there was no actual bargain at the time of trial, Nero and the prosecutor knew there would be one within a short period of time. The prosecutor maintains that there was no agreement at the time of defendant’s trial, and that subsequent dismissal of the charge against Nero resulted from several factors, some of which had no relation to defendant’s trial. Nero, says the prosecutor, returned the property stolen during the breaking and entering and, most importantly, "blew his cover” by testifying at this trial and others so as to be of no further use in undercover work.

It would be atypical if an addict-informer did not have an expectation of consideration for his cooperation in a given case. The well of informer cooperation would soon run dry if law enforcement consistently adhered to a policy of no consideration. Furthermore, we would not be so paternalistic as to believe that jurors are not well aware of these facts of life.

Where an accomplice or co-conspirator has been granted immunity or other leniency to secure his testimony, it is incumbent upon the prosecutor and the trial judge, if the fact comes to the court’s attention, to disclose such fact to the jury upon request of defense counsel. The same requirement of disclosure should also be applicable if reasonable expectations, as opposed to promises, of leniency or other rewards for testifying resulted from contact with the prosecutor. It has been held to be a denial of due process for a prosecutor not to correct the testimony of such a witness against the defendant, where the witness testifies that he has been promised no consideration for his testimony and the prosecutor knows this statement to be false. In regard to this duty to disclose, the prosecutor’s office has been treated as an entity, and the promise of one of its attorneys, even if unknown to the assistant prosecutor trying the case, has been attributed to the state.

However, it is one thing to require disclosure of facts (immunity or leniency) which the jury should weigh in assessing a witness’s credibility. It is quite another to require "disclosure” of future possibilities for the jury’s speculation. Indeed, if a prosecutor were required to volunteer that, although there was no agreement, he intended to recommend some sort of consideration for a witness because the witness was testifying in this and other cases or had corrected his past misdeeds, could this not be viewed as vouching for that witness’s credibility? The focus of required disclosure is not on factors which may motivate a prosecutor in dealing subsequently with a witness, but rather on facts which may motivate the witness in giving certain testimony. Of the latter, this jury was made well aware by means of the thorough and probing cross-examination by defense counsel.

Affirmed.

Kavanagh, C. J., and Williams and Coleman, JJ., concurred with Fitzgerald, J.

MCLA 335.152; MSA 18.1122, repealed by 1971 PA 196.

The first Federal case to require a special instruction in this context seems to have been Fletcher v United States, 81 US App DC 306; 158 F2d 321, 322 (1946), where, at an early stage of this nation’s awakening to the problem of drug abuse, Judge Groner opined that it was a "well recognized fact that a drug addict is inherently a perjurer where his own interests are concerned”. This language has even lead defendants to request that the court instruct the jury as a matter of law that addict-informers are inherently perjurers, but refusals to so request have been sustained on appeal. Government of the Virgin Islands v Hendricks, 476 F2d 776 (CA 3, 1973). United States v Gregorio, 497 F2d 1253 (CA 4, 1974). The general language of the instruction is to the effect that the testimony of an addict-informer who is either paid or under pressure must be examined with greater scrutiny than that of an ordinary witness. United States v Masino, 275 F2d 129 (CA 2, 1960). The precise terms of the instruction have been left to the trial court whose ultimate responsibility it is to formulate the charge. One version of an instruction on informers can be found in 1 Devitt and Blackmar, Federal Jury Practice and Instructions (2d ed), § 12.02. The Devitt and Blackmar instruction does not specify the unique danger said to be present in the testimony of addict-informers. Another more general instruction on interested witness testimony can be found in Mathes, Jury Instructions and Forms for Federal Criminal Cases, 27 FRD 39, 68 (1961).

The dangers inherent in such testimony are said to include the addict’s fear of being jailed or deprived of access to drugs, and also the fear of retaliation from others in the drug trade. United States v Kinnard, 150 US App DC 386; 465 F2d 566, 571 (1972). It is unclear whether cocaine or methadone addiction is thought to present like dangers. United States v Gregorio, supra.

Failure or refusal to give the instruction is not per se reversible error. See United States v Lee, 165 US App DC 50; 506 F2d 111 (1974), Orebo v United States, 293 F2d 747 (CA 9, 1961), and Joseph v United States, 286 F2d 468 (CA 5, 1960), where the informers’ testimony was substantially corroborated. Compare United States v Griffin, 382 F2d 823 (CA 6, 1967), where the trial court failed to give the unrequested cautionary instruction, and instructed erroneously on a presumption of truth attaching to a witness’ testimony unless outweighed by evidence to the contrary.

9 Wigmore, Evidence (3d ed), § 2551.

MCLA 768.29; MSA 28.1052, reads in part: "The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused.”

GCR 1963, 516.1 and .2 read in part:

".1 Request for Instructions. At or before the close of the evidence, any party may, or at any time the court reasonably directs, the parties shall, file written requests that the court instruct the jury on the law as set forth in the request. * * * The court may make such comments on the evidence, the testimony, and the character of the witnesses as in its discretion the interests of justice require.

".2 Objections. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.”

392 Mich 231 at 240. To implement this holding, the proposed Michigan Criminal Standard Jury Instructions now circulating for study and comment contain a cautionary instruction relating to accomplice testimony.

People v Bazemore, 25 Ill 2d 74; 182 NE2d 649 (1962).

People v Fuller, 395 Mich 451; 236 NW2d 58 (1975).

People v Zesk, 309 Mich 129, 132; 14 NW2d 808 (1944).

People v Love, 43 Mich App 608; 204 NW2d 714 (1972). People v Nettles, 41 Mich App 215; 199 NW2d 845 (1972). People v Evans, 30 Mich App 361; 186 NW2d 365 (1971).

Napue v Illinois, 360 US 264; 79 S Ct 1173; 3 L Ed 2d 1217 (1959).

See Giglio v United States, 405 US 150; 92 S Ct 763; 31 L Ed 2d 104 (1972).