Appeal from Saginaw, Eugene Snow Huff, J.
Leave to appeal applied for.
M. J. Kelly, P. J., and V. J. Brennan and Danhof, JJ.
Witnesses -- -- Promise of Leniency -- New Trial.
A new trial was properly denied where a defendant alleged that a witness was promised leniency in the prosecution of charges against him in exchange for his testimony and where the trial court, after an extensive hearing, concluded that there were no actual promises of leniency and the record, including the transcript of the evidentiary hearing, fails to support the defendant's allegations of promises of leniency to the witness.
The opinion of the court was delivered by: Kelly
Carlos Mata was convicted of delivery of heroin. While appeal was pending remand was ordered to the trial court for an evidentiary hearing to inquire into the existence of promises of leniency given to a witness. New trial denied by the trial court. Defendant appeals.
Defendant was found guilty of delivery of heroin on the testimony of one Thomas Cooper, a paid police informant. While appeal was pending in this Court, remand was ordered on motion of the defendant for an evidentiary hearing to "inquire into the existence or nonexistence of promises of leniency given to witness Thomas Cooper in exchange for his testimony". The question, of course, is whether or not defendant Mata was convicted on false testimony and thereby denied a fair trial. Giglio v United States, 405 U.S. 150; 92 S Ct 763; 31 L Ed 2d 104 (1972).
The hearing was conducted over several days and testimony was taken from 15 witnesses, including Cooper. On April 11, 1975 the trial court entered an order denying a new trial, "for the reasons stated on the record at the hearing * * *". The reasons include the following:
"At the outset of this opinion which the court desires to state now, this court will say that Mr. Cooper's [sic, should be Mr. Mata's] attorney, at the time of the trial, was given full opportunity to go into this matter.
"Now, the court understands, of course, that the appellate court desired further evidence on this particular point, and it is for this reason that the court has conducted this very lengthy and exhaustive inquiry into all of the circumstances surrounding Mr. Cooper's previous charges, all of the attorneys who represented him on any of the charges, all of the police officers who had any contact with Mr. Cooper, all of the members of the prosecuting attorney's office who had anything whatever to do with any of Mr. Cooper's cases and, finally, we had Mr. Cooper back here again, subject to vigorous cross-examination by the attorney now representing Carlos Mata.
"The court has been unable to find any evidence that the prosecutors promised him leniency if he would testify in the case. None of the attorneys representing Mr. Mata on the various charges against him stated that they had promises or assurances of leniency.
"There is testimony by Mr. Cooper that he hoped to receive leniency * * *. hat he had received no promises of leniency, but that he hoped that he would receive leniency * * *.
"Now there has been testimony from Mr. Stark, who was a former member of the prosecuting attorney's office, that he understood that Mr. Cooper would be given special treatment because of his work in behalf of the vice squad in obtaining evidence in narcotics cases. Mr. Stark went further and testified that in some of the cases which he ...