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People v. Smith

Supreme Court of Michigan

July 30, 2015

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
FERONDA MONTRE SMITH, Defendant-Appellant

Argued January 13, 2015

Page 300

Chief Justice: Robert P. Young, Jr. Justices: Stephen J. Markman, Mary Beth Kelly, Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein. BERNSTEIN, J. (concurring in part and dissenting in part). KELLY, J. (concurring in part and dissenting in part). ZAHRA, J. (dissenting).

OPINION

Page 301

[498 Mich. 470] BEFORE THE ENTIRE BENCH

Bridget M. McCormack, J.

In this case, we consider whether the prosecution breached a duty to correct the substantially misleading, if not false, testimony of a key witness about his formal and compensated cooperation in the government's investigation. Given the overall weakness of the evidence against the defendant and the significance of the witness's testimony, we conclude that there is a reasonable probability that the prosecution's exploitation of the substantially misleading testimony affected the verdict. See Napue v Illinois, 360 U.S. 264, 271-272; 79 S.Ct. 1173; 3 L.Ed.2d 1217 (1959). We therefore reverse the judgment of the Court of Appeals in part, vacate the defendant's convictions, and remand this case to the Genesee Circuit Court for a new trial.

I. FACTS AND PROCEDURAL HISTORY

The defendant was charged with, among other things, armed robbery, MCL 750.529, and first-degree felony murder, MCL 750.316(1)(b), after the police [498 Mich. 471] found known drug dealer Larry Pass,

Page 302

Jr., dead in Pass's own home. At the defendant's trial, two prosecution witnesses claimed to have been present when the defendant allegedly shot Pass. The first witness was codefendant Tarence Lard, who testified for the prosecution as part of a plea agreement for his part in the crime. The second witness was Mark Yancy, who maintained his innocence with respect to the shooting but admitted collecting Pass's drugs, helping dispose of the murder weapon, and using cocaine with the defendant and Lard after the shooting. Yancy and Lard contradicted one another in important ways, although both testified that Yancy and the defendant had had a violent dispute over money in the weeks leading up to the murder. No other evidence connected the defendant to the crime or confirmed that he had ever been at the scene, and no murder weapon was ever recovered.

Yancy was a paid informant; [1] he had been compensated for his assistance in a Federal Bureau of Investigation (FBI) inquiry into Pass's murder and a suspected criminal enterprise involving the defendant. This fact was made clear in a pretrial hearing, during which the prosecutor[2] specifically called the investigation's FBI task force leader and informant coordinator, Special Agent Dan Harris, to address informant compensation in the case. Harris testified that Yancy was paid for his cooperation relating to " the Larry Pass [498 Mich. 472] homicide[,] which was information against Mr. Lard and Mr. Smith [the defendant]." [3]

At trial, however, the fact and extent of Yancy's participation in the investigation that lead to the prosecution of the defendant and the compensation Yancy received for it was never made known to the jury. On the contrary, Yancy testified that he was not paid for his cooperation in relation to " this case," i.e., the prosecution of the defendant for Pass's murder. The topic first arose during direct examination, during which Yancy admitted in response to the prosecutor's question that he had been " paid by a federal agency for [his] cooperation." Neither the prosecutor's question nor Yancy's answer tied his cooperation to his involvement in the investigation of the defendant as the prime suspect in Pass's murder. In order to avoid linking Yancy's compensated cooperation to the investigation and prosecution of the defendant, the prosecutor carefully limited her subsequent questions to whether he was specifically paid for the testimony he was giving,

Page 303

which Yancy denied.[4] By itself, such cautious presentation [498 Mich. 473] of testimony might not have been problematic because the prosecution was careful not to elicit outright false testimony. But then Yancy took this denial further during cross-examination:

[ Defense Counsel ]: Do you deny -- first of all, it sounds like you agreed that you were paid $4,500 for cooperating with law enforcement, correct?
[ Yancy ]: Correct.
[ Defense Counsel ]: But you deny that it was with regards to this case, correct?
[ Yancy ]: Correct. [Emphasis added.]

The prosecutor revisited the topic during redirect examination, again limiting her question to whether Yancy had been paid for his " testimony" in particular. Yancy again denied being compensated:

[ Prosecutor ]: Okay, and just so we're clear, you were not paid to testify in this case, correct?
[ Yancy ]: Correct.

[498 Mich. 474] Four times, then, Yancy denied having been paid in connection with the defendant's case--specifically, that he had not been compensated for his testimony at the defendant's trial and also that he had not been otherwise compensated for " cooperating" " with regards to this case." Clearly, the jury could have interpreted this statement to indicate that Yancy had never been paid for his involvement with the investigation of the Pass homicide, not merely that the Genesee County Prosecuting Attorney's office had not compensated him for " testimony" or cooperation with the defendant's formal prosecution. The latter point might have been true; the former point was plainly misleading and likely untrue, as the prosecutor well knew, having elicited Harris's testimony at the pretrial hearing. This former point, however, was never corrected or clarified at trial, nor was the true nature or extent of Yancy's participation or compensation as an informant put before the jury. Rather, the prosecutor exploited the potential confusion Yancy's testimony created by reminding the jury of Yancy's denials during closing argument, cementing the false notion that Yancy had only been paid for his cooperation in other cases, and attempting to advance his credibility as a result of that fact:

Mark Yancy was here, ladies and gentlemen, and he talked to you about [sic] he wasn't charged in this homicide, and that he admitted he was in the house at the time of the homicide, and that he got the cocaine, and gave it to Lard and the defendant. He told you he did not get consideration on this case for testifying, that he got consideration on other cases that the task force was involved with. [Emphasis added.]

The jury found the defendant guilty of armed robbery and felony murder, but acquitted him of the other charges. On June 30, 2011, the defendant was sentenced as a fourth-offense habitual offender to life in [498 Mich. 475] prison for the murder conviction and to 20 years, 10 months to 35 years for the armed-robbery conviction. The defendant appealed and, among other

Page 304

issues, argued that the prosecution's failure to correct Yancy's false testimony violated his right to due process and denied him a fair trial. The Court of Appeals affirmed his convictions because it was unpersuaded that the failure to correct Yancy's false testimony made a difference in the jury's estimation of his credibility. People v Smith, unpublished opinion per curiam of the Court of Appeals, issued October 29, 2013 (Docket No. 304935), p 5. The defendant then sought this Court's review, and we granted leave to appeal.[5]

II. LEGAL BACKGROUND

A due process violation presents a constitutional question that this Court reviews de novo. People v Wilder, 485 Mich. 35, 40; 780 N.W.2d 265 (2010). It is inconsistent with due process when the prosecution allows false testimony from a state's witness to stand uncorrected. Napue, 360 U.S. at 269; see also People v Wiese, 425 Mich. 448, 453-454; 389 N.W.2d 866 (1986); Giglio v United States, 405 U.S. 150, 153; 92 S.Ct. 763; 31 L.Ed.2d 104 (1972). It is well established that " a State may not knowingly use false evidence, including [498 Mich. 476] false testimony, to obtain a tainted conviction . . . ." Napue, 360 U.S. at 269. Indeed, the prosecution has an affirmative duty to correct false testimony, and this duty specifically applies when the testimony concerns remuneration for a witness's cooperation. See Giglio, 405 U.S. at 154-155; Wiese, 425 Mich. at 455-456. The responsibility " does not cease to apply merely because the false testimony goes only to the credibility of the witness." Napue, 360 U.S. at 269. Nor is the blameworthiness of the prosecutor relevant. Smith v Phillips, 455 U.S. 209, 220 n 10; 102 S.Ct. 940; 71 L.Ed.2d 78 (1982). Rather, while " not every contradiction is material" and the prosecutor need not correct every instance of mistaken or inaccurate testimony, United States v Martin, 59 F.3d 767, 770 (CA 8, 1995), it is the effect of a prosecutor's failure to correct false testimony that " is the crucial inquiry for due process purposes," Smith, 455 U.S. at 220 n 10. A prosecutor's capitalizing on the false testimony, however, is of particular concern because it " reinforce[s] the deception of the use of false testimony and thereby contribute[s] to the deprivation of due process." DeMarco v United States, 928 F.2d 1074, 1077 (CA 11, 1991); see Jenkins v Artuz, 294 F.3d 284, 294-295 (CA 2, 2002) (stating that the prosecutor's promotion of the false testimony at summation " plainly sharpened the prejudice," " 'ha[d] no place in the administration of justice[,] and should neither be permitted nor rewarded" ) (citations and quotation marks omitted); Mills v Scully, 826 F.2d 1192, 1195 (CA 2, 1987) (" [T]here may be a deprivation of due process if the prosecutor reinforces the deception by capitalizing on it in closing argument . . . ." ). A new trial is required if the uncorrected false testimony " could . . . in any reasonable likelihood have affected the judgment of the jury." Napue, 360 U.S. at 271-272

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; see also Giglio, [498 Mich. 477] 405 U.S. at 154. Furthermore, as one federal circuit court of appeals has stated:

Regardless of the lack of intent to lie on the part of the witness, Giglio and Napue require that the prosecutor apprise the court when he knows that his witness is giving testimony that is substantially misleading. This is not to say that the prosecutor must play the role of defense counsel, and ferret out ambiguities in his witness's responses on cross-examination. However, when it should be obvious to the Government that the witness' answer, although made in good faith, is untrue, the Government's obligation to correct that statement is as compelling as it is in a situation where the Government knows that the witness is intentionally committing perjury. [ United States v Harris, 498 F.2d 1164, 1169 (CA 3, 1974).][6]

[498 Mich. 478] III. APPLICATION

A. FAILURE TO CORRECT TESTIMONY

As the Court of Appeals correctly observed, Yancy's trial testimony undoubtedly left the impression that he received no payment of any kind for his participation in this case, either for his testimony or for his prior cooperation that was the necessary condition to his testimony. The overall impression conveyed was false. Whether Yancy understood why or for what he had been compensated, the prosecutor knew that Agent Harris had given uncontroverted pretrial testimony that Yancy was compensated for information central to the formal prosecution of the defendant.

Instead of rectifying this false impression regarding Yancy's involvement, the prosecutor capitalized on and exploited it. Though well aware of Harris's testimony and the fact of Yancy's compensation, the prosecutor never took any steps to correct or explain Yancy's testimony. Rather, the prosecutor carefully limited her questioning of Yancy to the fact that he had been paid for cooperating with law enforcement, while never seeking to clarify that Yancy had been compensated for his cooperation in the investigation of the defendant. To the contrary, the prosecutor further distanced

Page 306

Yancy from the latter by emphasizing that any payment for his cooperation came from a " federal agency" and, impliedly, had nothing to do with the pending charges against the defendant. The prosecutor's follow-up questions built on this obfuscation; after leaving Yancy's testimony regarding his cooperation with law enforcement ambiguous and untethered to the defendant's case, the prosecutor pivoted directly to the more [498 Mich. 479] limited claim that Yancy specifically had not been paid to testify at trial. And when Yancy specifically denied during cross-examination that he had been compensated in connection with the investigation of the defendant, the prosecutor again did nothing to correct it.[7] [498 Mich. 480] She instead used Yancy's general claims of noncompensation to her advantage in closing, urging the jury to credit his story because " [h]e told you he did not get consideration on this case for testifying, that he got consideration on other cases that the task force was involved with." (Emphasis added.)

Capitalizing on Yancy's testimony that he had no paid involvement in the defendant's case is inconsistent with a prosecutor's duty to correct false testimony.[8] Indeed, the prosecutor sought to

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transform [498 Mich. 481] testimony that might have been merely confusing on its own into an outright falsity. Irrespective of the veracity of Yancy's claim that he had not been paid to [498 Mich. 482] " testify," the prosecutor should not have capitalized on Yancy's testimony after Yancy had confusingly denied being paid for cooperating in " this case." [9] Napue,

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360 U.S. at 269. The prosecutor's repeated emphasis on Yancy's lack of compensation for " testifying" and her comments at closing argument enhanced the misleading impression that Yancy was a totally independent witness. Her actions served to underscore the jury's false impression that because Yancy because had not been paid to " testify," he had no questionable incentive for his participation in this case.[10] Simply put, the prosecutor sought to benefit from the problematic testimony and use it to her advantage. This prosecutorial conduct does not comport with due process.[11] See DeMarco, 928 F.2d at 1077; Jenkins, 294 F.3d at 294-295.

[498 Mich. 483] B. ERROR AFFECTING THE JUDGMENT OF THE JURY

Whatever Yancy may have believed about the truth of his testimony, we conclude both that it conveyed a serious misimpression about the nature of his involvement in the case and that the prosecutor's exploitation of that testimony violated the defendant's right to due process. For this reason, we disagree with the Court of Appeals that this violation does not warrant relief. Rather, in light of the effect that Yancy's uncorrected testimony had on his credibility and the role that credibility played in securing the defendant's convictions, we conclude that there is a " reasonable likelihood" that the false impression resulting from the prosecutor's exploitation of the testimony affected the judgment of the jury. Napue, 360 U.S. at 271. Accordingly, the defendant is entitled to a new trial.

Page 309

As noted, there was no physical evidence tying the defendant to the crime. No murder weapon was ever recovered, the defendant's fingerprints were not found at the scene, and no other physical evidence confirmed that he had ever been at Pass's house. The defendant was convicted solely on the testimony of Lard and Yancy, two witnesses with significant credibility issues. As the jury was made aware, Lard was testifying pursuant to a favorable plea agreement for his role in the crime, [12] and [498 Mich. 484] his testimony at trial proved inconsistent not only with Yancy's version of events, but with his own pretrial account.[13]

Yancy's account of the crime was also riddled with inconsistencies[14] and did not otherwise cast him in a particularly favorable light. First, while Yancy admitted at trial that he and the victim " had a kind of personal bond," he also admitted that he did not call an ambulance or the police while the victim was " gurgling off his blood" on the floor after being shot, instead leaving the house with the defendant and Lard to go share some of the victim's cocaine. Yancy acknowledged that he then promptly disappeared from town for approximately a year. Furthermore, Yancy admitted, and Lard confirmed, that Yancy and the defendant had " a little beef going on" at the time of the murder, arising from a violent dispute over money a few weeks earlier.

[498 Mich. 485] There was, therefore, a basis for skepticism about both Lard and Yancy. What is most significant for our assessment, however, is that, as far as the jury knew, Yancy was uniquely credible in one respect: he was the sole lay witness who did not directly benefit from his participation in the case. Unlike Lard, he was not facing charges in connection with Pass's murder, and according to his testimony, he had not been compensated for testifying and had no paid connection with the defendant's case. Of course, Yancy did receive at least one known direct benefit for his participation in the case--financial compensation. But the prosecutor exploited the false impression to the contrary, urging the jury to believe Yancy--and convict the defendant--because of it. Given that the prosecution's case hinged entirely on the jury's credibility assessment of Lard and Yancy, this emphasis on the one (albeit false) indication of the difference in trustworthiness between them is unsurprising. For the same reason, however, we cannot overlook its prejudicial effect. See Wiese, 425 Mich. at 456 (concluding, in a case that " depended almost entirely on [the falsely testifying witness's] testimony," that the use of the false testimony and the defendant's resulting inability to properly question the witness's credibility " reasonably could have affected the judgment of the jury" ).

Page 310

In concluding that this prejudice was too insignificant to warrant relief, the Court of Appeals stressed that the impression that he had not been compensated could not have " bolstered" the " fairly dreadful state of Yancy's credibility . . . ." Smith, unpub op at 5. We agree that Yancy lacked credibility in a number of respects unrelated to his role as a paid informant. But we disagree with the Court of Appeals that the impossibility of raising Yancy's credibility from an already " dreadful state" is an appropriate way to frame the critical issue. [498 Mich. 486] Instead, the question is what effect would likely have resulted if the jury had understood that Yancy was compensated for his information against the defendant. In our view, this unique additional impeachment evidence was not cumulative or immaterial. See Napue, 360 U.S. at 270 (" [W]e do not believe that the fact that the jury was apprised of other grounds for believing that the witness . . . may have had an interest in testifying against [the defendant] turned what was otherwise a tainted trial into a fair one." ); Reynoso v Giurbino, 462 F.3d 1099, 1117 (CA 9, 2006) (" Unlike the other evidence used to impeach the eyewitnesses . . . such as inconsistent statements and general attacks on their credibility, evidence of their financial motives would have established a real incentive to lie, explaining why their testimony may have been fabricated." ). Rather, there is good reason to believe that if the jury had been made aware that Yancy was compensated for his cooperation, the prosecution would have had a more difficult task persuading the jury that he should be believed.

Put simply, the " dreadful state" of Yancy's credibility would have been even more dreadful had the jury learned that he was paid for his information against the defendant. And contrary to the Court of Appeals' suggestion, the prejudice from the prosecutor's exploitation of Yancy's potentially misleading testimony cannot be discounted simply because the jury had other reasons to disbelieve Yancy. Indeed, this case demonstrates the opposite to be true. Presented with a witness who was revealed to be a regular drug user, to have been in a dispute with the defendant about money, to have taken the victim's drugs, to have left the victim " gurgling off his blood" on the floor, and to have then left town for a year, the jury was more likely to have viewed the false inference that Yancy was not compensated at all for his [498 Mich. 487] involvement as the most significant basis for crediting his testimony against the defendant.[15]

Due process required that the jury be accurately apprised of the incentives underlying the testimony of this critical witness, and plainly that the prosecution not exploit any confusion relating to this critical topic. See United States v Cervantes-Pacheco, 826 F.2d 310, 315 (CA 5, 1987)

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(" As in the case of the witness who has been promised a reduced sentence, it is up to the jury to evaluate the credibility of the compensated witness." ) (emphasis added). Given the centrality of Yancy's credibility to the prosecution's case and the dearth of other evidence supporting the defendant's convictions, we hold that there was a reasonable likelihood that the prosecutor's exploitation of Yancy's misleading testimony affected the judgment of the jury.

IV. CONCLUSION

For the foregoing reasons, we conclude that the defendant is entitled to a new trial. Accordingly, we reverse the judgment of the Court of Appeals in part, [498 Mich. 488] vacate the defendant's convictions, and remand this case for proceedings consistent with this opinion.

Bridget M. McCormack Robert P. Young, Jr. Stephen J. Markman David F. Viviano Richard H. Bernstein (except for footnote 5)

CONCUR BY: Richard H. Bernstein (In Part); Mary Beth Kelly (In Part)

Bernstein, J. ( concurring in part and dissenting in part ).

I concur with the majority opinion except for footnote 5. With respect to defendant's speedy-trial claim, I respectfully disagree with the majority's conclusion that defendant is not entitled to relief. Instead, I concur with Part II of Justice Kelly's partial concurrence and partial dissent. Accordingly, I would also reverse the judgment of the Court of Appeals with respect to the speedy-trial claim and remand this case to the trial court to consider whether the prosecution overcame the presumption of prejudice to defendant's person and defense.

Richard H. Bernstein

Kelly, J. ( concurring in part and dissenting in part ).

I concur in the result of the majority's opinion with respect to the issue of Yancy's false testimony. It is reasonably likely that Yancy's uncorrected false testimony affected the judgment of the jury; therefore, a new trial is warranted. I part ways with the majority to the extent that it would grant a new trial simply for " substantially misleading" testimony of a material witness that need not rise to the level of falsity and, further, dissent from the majority's resolution of defendant's speedy-trial issue.

I. FALSE TESTIMONY

I would grant a new trial on the basis of the false evidence in the form of Yancy's testimony, which was [498 Mich. 489] " uncorrected when it appear[ed]" during defendant's trial.[1] The United States Supreme Court has long held that " a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction . . . ." [2] The majority expands the " false evidence" standard by allowing a new trial on the basis of " substantially misleading" evidence in the form of testimony.[3] This standard is unworkable for the reasons articulated by Justice Zahra: it allows a reviewing court to " pick[] and choose[] small snippets of testimony" [4] to

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determine the " 'overall impression'" that those small snippets create.[5] I would simply examine whether the prosecutor knowingly proffered false testimony. By attempting to decipher the " overall impression" particular snippets of testimony made on the jury, and by potentially requiring prosecutors to correct testimony that might not actually be false, the majority creates an ambiguous standard that will be difficult to apply in practice.

Nevertheless, applying the traditional standard to this case, I agree with the majority that defendant is entitled to a new trial. Yancy's testimony was, in fact, false. The Court of Appeals explained that " [o]n direct, cross, and redirect examination, Yancy repeatedly admitted that he was paid for cooperating with law [498 Mich. 490] enforcement but repeatedly denied that any of the payment pertained to the instant case." [6] Moreover, the prosecutor " did not exercise the opportunity to clarify" that Yancy " did receive payment for information pertaining to the case." [7] For the reasons stated by the majority, I agree that this false--not just substantially misleading--testimony was prejudicial and warrants a new trial.

II. RIGHT TO A SPEEDY TRIAL

Although defendant is entitled to a new trial on the basis of false testimony, I would not simply remand for a new trial but would also remand for additional factual findings related to defendant's speedy-trial claim, and I respectfully dissent from the majority's conclusion that defendant is not entitled to any relief on this claim. The Court of Appeals acknowledged that the circuit court did not correctly apply the Barker v Wingo [8] balancing test to assess defendant's speedy-trial claim after his trial was delayed for 41 months.[9] Specifically, the circuit court did not " follow[] the rule that after a delay of 18 months, prejudice is presumed," [10] and the Court of Appeals likewise did not properly examine the extent to which the circuit court's analysis was influenced by its failure to require the [498 Mich. 491] prosecution to rebut the presumption of prejudice. I would therefore reverse the judgment of the Court of Appeals, vacate defendant's convictions, and remand this case to a new judge in the Genesee Circuit Court to consider whether the prosecution overcame the presumption of prejudice to defendant's person and defense.[11] If the presumption was overcome, a new trial is warranted on the basis of the

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reasoning provided in the majority opinion. However, if the presumption of prejudice to defendant's person and defense was not overcome, a dismissal of all charges is the only remedy for a speedy-trial violation.

The right to a speedy trial is enshrined in the United States Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . .[12]

The United States Supreme Court has held that the right to a speedy trial serves " to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself." [13]

[498 Mich. 492] There is no bright-line rule that indicates a " fixed number of days" that must pass before a defendant's right to a speedy trial is violated.[14] Instead, this Court applies the balancing test established by the United States Supreme Court in Barker v Wingo [15] in light of this Court's presumption of prejudice " after a delay of 18 months." [16] In Barker, the United States Supreme Court identified as some of the factors to be considered (1) the length of the delay, (2) the justification for the delay, (3) the defendant's assertion of his or her right, and (4) the multifaceted prejudice to the defendant.[17] The Barker test is case-specific, and none of the four factors is dispositive.[18] In assessing the prejudicial effect of a delay on a defendant, the United States Supreme Court has observed that " [t]he time spent in jail," as opposed to time released on bond, " has a detrimental impact on the individual." [19]

Defendant waited in prison for 41 months before being brought to trial. The circuit court's analysis of these delays inexplicably attributed extensive delays by the court to defendant.[20] As a result, despite a total delay exceeding 18 months at the time of defendant's [498 Mich. 493] first motion for a speedy trial, the court found that defendant had not established prejudice because the total delay by the state was less than 18 months. On appeal almost 25 months after defendant's first motion for a speedy trial, the Court of Appeals recognized that the circuit court had misunderstood the Barker prejudice prong, observing that " irrespective of whether defendant or the prosecution is more at 'fault' for the 41-month delay here, the simple fact is that

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the delay was 41 months, and consequently the burden is on the prosecution to show that there was no prejudice." [21] However, the Court of Appeals found no error in the circuit court's independent inquiry into prejudice because its independent inquiry was not tainted by its misapprehension of the law.[22]

Contrary to the Court of Appeals' conclusion, the circuit court's prejudice inquiry was tainted by its misapprehension of applicable law. In People v Collins, this Court established that " [a]fter 18 months, the burden shifts to the prosecution to show there was no injury [to the defendant's person or defense]." [23] No prosecutorial evidence overcoming the presumption of prejudice appears on the record.[24] By failing to fully [498 Mich. 494] engage in the " difficult and sensitive balancing process" established in Barker, and therefore failing to impose the proper burden on the prosecution, the circuit court did not afford defendant the complete protection of his constitutional right to a speedy trial.[25] In other words, the Court of Appeals' decision is " irreconcilable with . . . the original meaning of the Sixth Amendment . . . ." [26] Because the Court of Appeals did not afford defendant the presumption to which he is entitled, I would reverse the judgment of the Court of Appeals, vacate defendant's convictions, and remand this case to a new judge in the Genesee Circuit Court for the correct application of the relevant law. Final disposition of defendant's speedy-trial claim should await the prosecution's showing that defendant was not prejudiced by the delay and the circuit court's correct application of the remaining Barker factors.

Richard H. Bernstein (with respect to Part II only)

Zahra, J. ( dissenting ).

The majority concludes that reversal of defendant's felony-murder and armedrobbery convictions is required because the prosecutor failed to meet her duty to correct " substantially misleading, if not false," testimony from Mark Yancy regarding the compensation paid to him by the Federal Bureau of Investigation (FBI) for information and cooperation. The objection to the prosecutor's conduct is premised in the notion that the " State may not [498 Mich. 495] knowingly use false evidence, including false testimony, to obtain a tainted conviction . . . ." Ante at 7 (quotation marks and citation omitted). I agree with this fundamental proposition, and imagine that no one denies it. But today the majority

Page 315

has turned this rudimentary constitutional principle into a new requirement that the prosecutor not just elicit truthful testimony on direct examination, but also elicit complete testimony, fully disclosing all the facts and circumstances of how that witness came to testify. Further, the majority imposes an additional duty on the prosecutor to correct a defense attorney's mischaracterized questions made during cross-examination of a state's witness.

The record is clear that Yancy admitted being paid by the FBI for his cooperation. Nonetheless, despite the prosecutor's having elicited testimony from Yancy that he had been paid for his cooperation, the majority vacates defendant's convictions because the prosecutor did not make it absolutely clear to the jury that the FBI paid Yancy for his cooperation in the government's case against defendant. I respectfully dissent because I fear the majority now holds prosecutors to the unacceptably high and extraordinarily ambiguous standard of having to correct every instance of mistaken, inaccurate, or incomplete testimony or risk the possibility that every possible or perceived contradiction will be rendered material.[1]

[498 Mich. 496] The majority's claim of error is predicated on the broad proposition " that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with 'rudimentary demands of justice.'" [2] Along these lines, a state may not knowingly use false evidence, including false testimony, or solicit false evidence or testimony and allow it to go uncorrected when it appears, to obtain a tainted conviction.[3] This Court has recognized that " [t]he prosecution's duty to correct the false testimony of a state witness arises 'when [the false testimony] appears.'" [4]

Each of these principles is sound when one understands how they have been developed and applied. In each case enunciating these principles, neither defense counsel nor the trial court was aware that the state [498 Mich. 497] had agreed to compensate witnesses

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for their testimony because the prosecution did not disclose the agreements. This, however, is not a case in which the prosecutor kept secret the compensation the FBI paid to Yancy for his cooperation. Rather, the existence and extent of Yancy's relationship with the government and the details regarding the compensation paid to Yancy were fully disclosed and known not only to the prosecutor, but also to defense counsel and the trial court long before trial commenced. For this reason, I conclude that the evidence the majority finds to be false or " substantially misleading" is better characterized as incomplete testimony. Accordingly, I conclude that the prosecutor did not commit an error by failing to clarify the evidence in the manner espoused by the majority. Similarly, I do not conclude that the prosecutor's closing argument was an improper exploitation of misleading testimony. To the extent that the prosecutor's actions constituted error, that error was either extinguished by defendant's waiver, forfeited for lack of preservation, or harmless. I would affirm defendant's convictions.

I. THE SUPREME COURT CASES RELIED ON BY THE MAJORITY ARE DISTINGUISHABLE

The majority relies principally on Napue v Illinois, 360 U.S. 264, 271-272; 79 S.Ct. 1173; 3 L.Ed.2d 1217 (1959), Giglio v United States, 405 U.S. 150, 154; 92 S.Ct. 763; 31 L.Ed.2d 104 (1972), and People v Wiese, 425 Mich. 448, 453-454; 389 N.W.2d 866 (1986), to support the proposition that reversal is required in this case. All these cases involved witnesses who denied under oath receiving of any remuneration from the government in exchange for their testimony. It is significant, in my view, that in each case the denial of remuneration [498 Mich. 498] was clearly and patently false and, more importantly, that this falsity was known only by the prosecution.

Unlike the key prosecution witnesses in Napue, Giglio, and Wiese, Yancy admitted receiving compensation for his cooperation with the FBI. Moreover, as distinguished from Napue, Giglio, and Wiese, in the instant case it was not a secret that Yancy received compensation from the FBI in exchange for his cooperation. In stark contrast to Napue, Giglio, and Wiese, here there was a pretrial proceeding held for the benefit of defense counsel[5] during which the prosecution presented FBI Special Agent Dan Harris, who was charged with the responsibility of compensating informants. Defense counsel participated in this hearing, which was presided over by the trial court. During the hearing it was fully disclosed that Yancy had received $4,000 for information related to the Pierson Hood gang and for information that led to the charges against defendant.[6]

Page 317

[498 Mich. 499] The fact that the trial court and defense counsel were made aware before trial of the consideration given Yancy for his cooperation with the FBI materially distinguishes this case from Napue, Giglio, and Wiese. This disclosure is fundamental. It is the secreting of evidence that is offensive to due process.[7] As [498 Mich. 500] noted in Giglio,

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" When the 'reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within this general rule." [8] If disclosure of evidence affecting credibility is timely made, the witness's credibility should be left to the adversarial process. Indeed, " [t]he very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case [498 Mich. 501] will best promote the ultimate objective that the guilty be convicted and the innocent go free." [9] Our adversarial system of justice " is premised on the well-tested principle that truth--as well as fairness--is best discovered by powerful statements on both sides of the question." [10] Under our adversarial system, however, each party bears the responsibility for ensuring that its positions are vigorously and properly advocated.[11] And " [a]lthough the judge plays a vital role in the trial of a criminal case, counsel for the parties are also essential components" because " [t]hey too share in the cause of justice." [12]

In cases in which the defendant claims that the prosecution has left unchecked questionable testimony from a witness, a reviewing court must assess whether the evidence was truly false and material to the proceedings or merely inaccurate, incomplete, or otherwise vague or ambiguous such that the discrepancy is immaterial.[13] As observed by the majority, " it is the effect of a prosecutor's failure to correct false testimony that 'is the crucial inquiry for due process purposes.'" [14] If the evidence in question was disclosed to the defense in a timely manner, this disclosure should weigh in [498 Mich. 502] favor of a finding of immateriality. When all parties to the litigation are aware of the material facts, the adversarial process will separate the wheat from the chaff, leaving all material and pertinent information before the jury.[15]

II. THE ALLEGED " SUBSTANTIALLY MISLEADING" EVIDENCE PRESENTED BY THE PROSECUTOR WAS NOT ONLY DISCLOSED, IT WAS AT MOST INCOMPLETE AND THEREFORE IMMATERIAL

Examination of the testimony elicited by the prosecutor reveals no patent falsity.

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The majority takes issue with two questions[16] from the prosecutor during Yancy's direct examination:

[ Prosecutor ]: Now, you've been paid by a federal agency for cooperation. Is that correct?
[ Yancy ]: Yes.
* * *
[498 Mich. 503] [ Prosecutor ]: Were you paid for your testimony in this case?
[ Yancy ]: No.

The majority does not allege that either question and its respective response, taken individually, constituted the solicitation of false or misleading evidence. This is clearly because the responses to both questions are true. Yancy was paid for his cooperation, but he was not paid for his testimony. At most the majority takes issue with the prosecutor's use of the phrase " federal agency," framing that language as clear evidence the prosecutor purposefully attempted to distance the witness from the defendant and purposefully obfuscated the fact that Yancy had been compensated for information provided to the FBI. The majority uses innuendo and isolated phrases such as " federal agency" to somehow determine that " [t]he overall impression [with regard to Yancy's compensation] conveyed was false."

In reality, any misdirection with regard to the compensation paid by the FBI to Yancy was created not by the prosecutor but by defense counsel during Yancy's cross-examination:

[ Defense Counsel ]: Do you deny -- first of all, it sounds like you agreed that you were paid $4,500 for cooperating with law enforcement, correct?
[ Yancy ]: Correct.
[ Defense Counsel ]: But you deny that it was with regards to this case, correct?
[ Yancy ]: Correct.

On the basis of this response, the majority claims that Yancy denied that he was compensated for his " cooperation with the defendant's formal prosecution." But Yancy was not asked whether he was compensated [498 Mich. 504] for his cooperation in the Pass murder investigation; he was asked whether he was compensated " with regards to this case." Yancy might well have believed that his compensation was not " with regards to this case," but was instead for his cooperation in the Pierson Hood gang case. Further, Yancy had just been asked if he had been paid for his testimony in this case. It would be reasonable for Yancy to assume that defense counsel was referring to his specific testimony.

Admittedly, neither the prosecutor nor defense counsel made this clarification. Instead, the prosecutor again asked Yancy to confirm that the compensation he received was not for his trial testimony. It is the prosecutor's failure to clarify the distinction between compensation for information and compensation for testimony--a confusion brought on by defense counsel's cross-examination--that the majority finds

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offensive. More specifically, the majority believes that the prosecutor was under a duty to expressly elicit testimony from Yancy that he was compensated for providing information that implicated defendant for the murder. This failure, says the majority, rendered the prosecutor's examination either false or substantially misleading.

If this were a case in which the prosecution alone was aware that Yancy was compensated for information that ultimately led to the charges against defendant, I might well have joined the majority opinion. This is not such a case. Defense counsel was fully aware of the specifics underlying the compensation the FBI paid Yancy. Accordingly, defense counsel had in his arsenal all the information necessary to cross-examine Yancy with regard to the incomplete, albeit truthful, testimony elicited by the prosecutor. Importantly, defense counsel conducted a vigorous and effective cross-examination:

[498 Mich. 505] [ Defense Counsel ]: But it was money, right? Real money, right?
[ Yancy ]: Correct.
[ Defense Counsel ]: For cooperating, correct?
[ Yancy ]: Correct.
[ Defense Counsel ]: With these folks, correct?
[ Yancy ]: Correct.
[ Defense Counsel ]: And you got some other benefits, too. Isn't that right?
[ Yancy ]: No.
[ Defense Counsel ]: Okay. Well, are you in prison or jail now?
[ Yancy ]: Because I didn't do nothing.
[ Defense Counsel ]: That's not my question.
[ Yancy ]: No I'm not.
[ Defense Counsel ]: You're not in prison or jail now. Okay. You weren't charged with murder or weapons possession, correct?
[ Yancy ]: I didn't have a weapon, no.
[ Defense Counsel ]: That's not my question.
[ Yancy ]: No.
[ Defense Counsel ]: Okay. You were not charged with drug charges, right?
[ Yancy ]: No.
[ Defense Counsel ]: I mean you delivered cocaine in the house, right? You handed it to these guys and then you shared it, so you delivered it or at the least used it, right? Didn't get charged with any of that stuff, right?
[ Yancy ]: No.[17]

[498 Mich. 506] The majority picks and chooses small snippets of testimony to determine that the prosecutor had evil [498 Mich. 507] intent to obfuscate

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the evidence and confuse the jury. This could not be further from the truth. The prosecutor made a timely pretrial disclosure of the evidence affecting Yancy's credibility. The prosecutor elicited only true testimony from Yancy. Defense counsel had ample opportunity for a vigorous cross-examination with full knowledge that Yancy had indeed been paid money by the FBI for information that implicated defendant in the murder of Pass. Given this compelling information, I simply cannot conclude that any infirmity in the testimony elicited from Yancy constituted false or substantially misleading evidence sufficient to warrant the reversal of defendant's convictions. Instead, I would conclude that the testimony under review was at most incomplete and not material to the greater scheme of this criminal trial.

III. ANY ALLEGED ERROR IS BARRED BY WAIVER

While defense counsel conducted a vigorous cross-examination of Yancy, counsel chose not to clarify Yancy's testimony with regard to compensation from the FBI. I conclude that explicit disclosure of evidence affecting Yancy's credibility, coupled with defense counsel's subsequent failure to raise the specific issue at trial, constituted waiver of the claim at issue in this case.[18] Significantly, when Yancy denied on cross-examination [498 Mich. 508] that he was compensated " with regards to [498 Mich. 509] this case," defense counsel did not object, ask

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for a mistrial, seek a conference outside the presence of the jury, or otherwise ask the court to strike the allegedly false testimony.[19] Presumably defense counsel viewed Yancy's testimony as incomplete, vague, and perhaps even evasive, but deemed this testimony best addressed through vigorous cross-examination. And defense counsel in fact conducted a vigorous cross-examination of Yancy, but instead of clarifying Yancy's testimony with regard to compensation from the FBI, he sought to highlight that Yancy was not paid " with regards to this case" and impeached Yancy by suggesting that Yancy had received not only " [r]eal money" for cooperating with the FBI, but some additional tacit benefit from the prosecution for his testimony and cooperation. An issue is waived if the defendant intentionally abandons a known right.[20] " [W]aiver may be [498 Mich. 510] effected by action of counsel." [21] Because defense counsel had full knowledge of Yancy's cooperation and compensation and nonetheless chose to impeach Yancy at trial without mentioning the extent

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of Yancy's cooperation with the FBI, defendant has waived this issue on appeal.[22]

[498 Mich. 511] IV. THE UNPRESERVED ALLEGED ERROR IS FORFEITED

As discussed, defense counsel and the trial court were fully aware that the FBI had compensated Yancy for his cooperation and information implicating defendant in the murder of Pass. Because there was no objection when Yancy denied being compensated " with regards to this case," [23] defendant's constitutional claim is unpreserved

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and subject to forfeiture.[24] " To avoid forfeiture under the plain error rule, three requirements [498 Mich. 512] must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." [25] " The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." [26] The defendant has the burden of establishing each of these three elements.[27] In this case, defendant has failed to show that any perceived error affected the outcome of the lower-court proceedings. In affirming defendant's convictions, the Court of Appeals relied heavily on the " fairly dreadful state of Yancy's credibility" [28] to conclude that any error was harmless. The majority believes that the panel's reliance on Yancy's dreadful credibility was misplaced because " the impossibility of raising Yancy's credibility from an already 'dreadful state'" was not the critical issue. Rather, the majority frames the issue as " what effect would likely have resulted if the jury had understood that Yancy was compensated for his information [498 Mich. 513] against the defendant." In this regard, the majority concludes that reversal is required because " the 'dreadful state' of Yancy's credibility would have been even more dreadful had the jury learned that he was paid for his information against the defendant."

Of course the jury was certainly entitled to question Yancy's credibility. He admitted that he was a regular drug user, was in a dispute with defendant over money, took Pass's drugs (though he gave them to Lard), and left the victim " gurgling off his blood" on the floor (though he testified, " What could I do?" and " I thought I was next" ), and left town for a year. Even the prosecutor wryly admitted, " [O]ur witnesses aren't from the Mormon Tabernacle choir . . . ." With that said, " '[i]t is the defendant rather than the Government who bears the burden of persuasion with

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respect to prejudice.'" [29] But here, defendant here has only shown a possibility that Yancy's credibility could be further diminished. In other words, it is entirely speculative that this possibility would have affected the outcome in this case. It is just as possible that the jury would have ignored additional impeachment given the then-existing " dreadful state of Yancy's credibility." Simply put, the burden is on defendant, and defendant failed to show that any perceived error actually, instead of possibly, affected the outcome of the lower-court proceedings. Accordingly, defendant has not satisfied his burden of establishing plain error that affected his substantial rights and therefore has forfeited this issue on appeal.

V. THE ALLEGED ERROR WAS HARMLESS

MCL 769.26 provides:

[498 Mich. 514] No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.

This statute essentially embodies Michigan's harmless-error rule.[30] " 'Simply stated, . . . reversal is only required if the error was prejudicial. That inquiry focuses on the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence.'" [31]

According to the majority, the alleged error prejudiced defendant because the prosecutor bolstered Yancy's credibility by arguing that he had only been paid for his cooperation in other cases:

Mark Yancy was here, ladies and gentlemen, and he talked to you about [sic] he wasn't charged in this homicide, and that he admitted he was in the house at the time of the homicide, and that he got the cocaine, and gave it to Lard and the defendant. He told you he did not get consideration on this case for testifying, that he got consideration on other cases that the task force was involved with.

No objection was made to the prosecutor's closing argument. Further, this argument is consistent with the record evidence from Flint police officer Shawn Ellis, who testified without objection that Yancy was not paid for his testimony and had " cooperated on other investigations with task force officers." In any [498 Mich. 515] event, reviewing courts should not flyspeck trial proceedings with the benefit of 20/20 appellate hindsight. " [T]he Constitution entitles a criminal defendant to a fair trial, not a perfect one." [32] Instead, our law generally demands that trial results not be overturned unless a miscarriage of justice has occurred.[33] This was a 7-day jury trial featuring more than 20 witnesses and numerous exhibits. It is often difficult for seasoned practitioners and judges to keep pace with trial proceedings. It is substantially more difficult for the jury to

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do so. This one fleeting, arguably inaccurate statement to which no objection was made does not detract from the actual evidence presented at trial and the prosecutor's truthful statement that Yancy " did not get consideration on this case for testifying." Moreover, the prosecutor's statement was responsive to defense counsel's line of questioning that suggested that Yancy had been compensated for his testimony against defendant. And not only did defense counsel suggest that Yancy had been compensated for his testimony against defendant, but he later stated in closing argument, without any factual basis, that Yancy " lied to you about his plea, whether he pled." Notwithstanding this assertion by defense counsel, there is absolutely no evidence that Yancy received any deal from the prosecution in exchange for his testimony in this case.

Further, the majority exaggerates the prejudicial effect of the alleged error. The extent to which Yancy's credibility was bolstered by argument that he had only been paid by the FBI for his cooperation in other cases is, at best, marginal. Additionally, the alleged error was clearly precipitated by the prosecutor's willingness [498 Mich. 516] to accommodate defense counsel's trial strategy that avoided " opening the door to Pierson Hood" because, as the trial court noted, doing so would be hazardous.[34] Both the prosecutor and defense counsel fastidiously avoided mention of the Pierson Hood gang during trial. Rather than delve into specific prejudicial information that Yancy had provided to the FBI, defense counsel sought to challenge Yancy on his claim that he was not paid " with regards to this case" and impeached Yancy by suggesting not only that Yancy had received cash from the FBI for cooperation, but that he had also received some tacit benefit from the prosecution for his testimony and cooperation.

Finally, the majority does not address whether even if Yancy's testimony had been struck from the record, the prosecution nonetheless presented sufficient independent evidence at trial to establish beyond a reasonable doubt that defendant murdered Pass. Even if evidence is improperly admitted to bolster a witness's character for truthfulness, reversal is not required under MCL 769.26 if there exists other cumulative and independent evidence to support the conviction.[35] The majority apparently assumes that the jury simply did not believe the other key witness for the prosecution, but " [t]he jury is the sole judge of the facts; its role includes listening to testimony, weighing evidence, and [498 Mich. 517] making credibility determinations." [36] Contrary to the assertions of the majority, Lard's testimony was largely consistent with Yancy's testimony with regard to the murder of Pass. It would be very difficult to conclude that the jury convicted defendant on the basis of Yancy's testimony while rejecting Lard's testimony.

Specifically, Yancy and Lard consistently testified that Lard brought defendant to Pass's home, that they used a mutual acquaintance's

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name to validate their intent to purchase cocaine, and that Pass let them inside. Inside the house, defendant and Pass discussed purchasing cocaine in the kitchen, and both Yancy and Lard saw Pass enter the bathroom, presumably to retrieve cocaine. After Pass returned to the kitchen, both Yancy and Lard heard multiple gunshots coming from the kitchen area, where only defendant and Pass were present. Lard testified that neither he nor Yancy shot Pass, but that defendant did so. Lard's testimony alone provided a rational basis to establish that defendant shot and killed Pass. In sum, having examined the entire cause, I cannot conclude that the error alleged by defendant affirmatively appears to have resulted in a miscarriage of justice. I would affirm.


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