Prosecution's Threat to Witness Merits Reversal

Yesterday, the Michigan Court of Appeals reversed the conviction of Devaun Lopez who had previously been convicted following a jury trial in the Saginaw County Circuit Court.  The Court, in a per curiam opinion, concluded in People v Devaun Lopez, Docket No. 327208, that the prosecution had improperly threatened a prosecution witness prior to testifying.  Dennis Hoskins was a key witness for the prosecution who had testified at the preliminary examination that the defendants had both admitted to him their involvement in the the murder and had openly discussed the details, including the use of a .38 caliber pistol, which matched the evidence from the scene.

Just prior to the trial, the prosecutor became concerned that Hoskins was going to change his testimony from what he said at the preliminary examination.  During a colloquy between Hoskins, his attorney, the prosecutor and the two defense attorneys, the defendant's attorney claimed to have heard the prosecution threaten Hoskins that he would be prosecuted for perjury and face life imprison if he did not testify consistently with his preliminary examination testimony.  During a hearing held outside the presence of the jury on the third day of trial, the following occurred:

The Witness: Yes. The prosecutor’s told me - - they threatened me with life in prison.  

The Court: Okay. With regard to your right to testify or not testify, do you wish to exercise your Fifth Amendment privilege and not testify at this time? 

The Witness: Yes, sir.

After the prosecution then presented the audiotape of Hoskins' preliminary examination testimony to the jury pursuant to MRE 804(b)(1), the defense moved to strike it, arguing that MRE 804(a)(1) did not authorize the use of the transcript because, though the witness was unavailable due to asserting his Fifth Amendment right, the rule further leads to the conclusion that the witness is not unavailable if the proponent has something to do with the witness' unavailability.  The court ultimately ruled:

Well, this is all very interesting and we’ve made a clear record of your positions. I’m going to deny the motion itself.  The witness himself indicated he felt threatened; that’s why he wasn’t testifying.  Mr. Dunn could say what he wanted to say, but I’m not going to take his testimony over the witness’s testimony himself.

 The Court of Appeals reversed and ordered a new trial.  The bottom line was that Hoskins was not "unavailable" pursuant to MRE 804(a).  The Court found that "MRE 804(a) posits that '[a] declarant is not unavailable as a witness if” his or her refusal to testify 'is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.'"  Here, regardless of the prosecution's intent or the alleged tone of his voice, the witness testified he was threatened and the trial court concluded as much.  After finding that the prosecutor had little reason to suspect Hoskins was going to commit perjury, and therefore, improperly issued a warning to him, the Court stated:

The trial court recognized that Hoskins refused to testify due to the prosecutor’s threat, yet failed to connect its finding with the rule’s command that “procurement” of a witness’s absence nullifies the witness’s unavailability. Because the prosecutor improperly silenced Hoskins, the court was required to exclude Hoskins’ preliminary examination testimony in the first instance, or to strike the testimony from the record thereafter. By admitting prior testimony in clear violation of the evidentiary rules designed in part to protect a defendant’s right to confront the witnesses against him, the trial court violated Lopez’s fundamental right to a fair trial, abusing its evidentiary discretion.

 On appeal, the defendant was represented by Ronald Ambrose, and the Saginaw County Prosecutor's Office was represented by Nathan Collison.