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People v. Smith

Supreme Court of Michigan

July 30, 2015

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).


Page 301


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.


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,

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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

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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]


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


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

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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.


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.

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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 ...

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