People v. Buschard , 129 Mich. App. 160 ( 1983 )

129 Mich. App. 160 (1983) 341 N.W.2d 260

PEOPLE
v.
BUSCHARD

Docket No. 71551.

Michigan Court of Appeals.

Decided September 27, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John A. Smietanka, Prosecuting Attorney, and Angela Baryames, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Susan J. Smith), for defendant on appeal.

Before: R.B. BURNS, P.J., and ALLEN and D.E. HOLBROOK, JR., JJ.

ON REMAND

ALLEN, J.

We revisit this cause by virtue of an order of the Supreme Court dated May 19, 1983, remanding to this Court for "reconsideration in light of People v Lytal, 415 Mich. 603; 329 NW2d 738 (1982)". This matter was first heard by this panel at the June, 1981, call. On September 9, 1981, an authored opinion was filed affirming defendant's convictions. People v Buschard, 109 Mich. App. 306; 311 NW2d 759 (1981). Leave to appeal was timely taken to the Michigan Supreme Court which, after first ordering the matter held in abeyance, on May 19, 1983, vacated the judgment of the Court of Appeals and remanded the case for reconsideration in light of Lytal, supra.

On May 30, 1979, police officers stopped a car in which defendant was a back-seat passenger. Defendant was found sitting on a .357-caliber revolver. Also in the car were Sam Stueland, a front-seat passenger, and Greg Shafer, the driver. Shafer and Stueland were allowed to leave and defendant was charged with carrying a concealed weapon in a motor vehicle, MCL 750.227; MSA 28.424. Both accomplices testified at trial pursuant to a plea agreement under which each pled guilty to a misdemeanor charge rather than the felony with which defendant was charged. Defendant was found guilty by the jury and was sentenced to three to seven and one-half years in prison. The defendant also pled guilty to being a second offender.

Defendant appealed as of right raising five issues, of which one (issue three) was Lytal related.^[1] It is the propriety of this Court's ruling on issue three which the Supreme Court has directed us to reconsider in view of Lytal. Necessarily, the first step in reconsideration is a clear and concise statement of the factual differences between Lytal and this case.

In Lytal, the prosecutor called as prosecution witnesses two unindorsed accomplices who testified regarding Lytal's participation in the sale of drugs. Evidence that the accomplices had been convicted for their roles in the offense for which Lytal was charged was introduced. Additionally, evidence of a prior conviction for a similar offense was allowed. In this case two indorsed accomplices were called as prosecution witnesses and testified as to Buschard's possession of the gun. Upon questioning by the prosecution, each stated that a plea agreement had been reached and described the nature of the agreement. Additionally, the prosecution inquired of each accomplice whether he had agreed to testify truthfully. Each responded in the affirmative and in final argument the prosecution referred to the fact that the witnesses had been "very candid". No evidence of a prior conviction was involved.

In Lytal, the Supreme Court found three errors: (1) calling unindorsed accomplices, (2) allowing testimony regarding Lytal's prior conviction for a similar offense, and (3) introducing evidence of the accomplices' convictions for the same offense with which Lytal was charged. In this case (1) the issue of unindorsed accomplices was not raised,^[2] (2) no attempt was made to introduce evidence of a prior conviction, and (3) unlike the situation in Lytal, a plea agreement had been reached in exchange for the accomplices' testimony. In summary, reversal in Lytal was posited on three grounds, only one of which (the third) is involved here. Thus, the relevant inquiry is whether the reasons given by the Supreme Court for reversal on the third-described issue in Lytal pertain to the factual situation in this case.

The Supreme Court explained its rationale for reversal on the question of the admissibility of evidence of the accomplices' prior convictions in Lytal as follows:

"It is an established rule of law that the conviction of another person involved in the criminal enterprise is not admissible at defendant's separate trial. The prosecutor defends the admission of this evidence on the ground that under the rule of People v Atkins, 397 Mich. 163; 243 NW2d 292 (1976), he was obliged to show the nature of any consideration offered for the testimony of Diaz and Tackleberry.

"Diaz and Tackleberry testified, however, that no promises were made to them — there was no consideration.

"The prosecutor is not obliged to show that no consideration was offered for a witness's testimony or, indeed, whether the witness, if charged and if an accomplice, was convicted or acquitted. The prosecutor is only obliged to disclose any consideration offered to or received by the witness. That can be done without adverting to whether the witness was, if charged, convicted." Lytal, supra, p 612. (Footnotes omitted; emphasis supplied.)

Based upon the above reasoning, we are not persuaded that Lytal compels reversal in the instant case. In Lytal, there was no consideration for the witness's testimony. No plea agreement was involved. Lytal, supra, p 608, fn 4. In the instant case, a plea agreement was involved. This being so, the prosecution was obliged to recite the nature of the agreement. Recitation of the agreement necessarily included a reference to the accomplices' pleas to a reduced charge.

This then leaves as the only possibility upon which reversal could be based the fact that in this case the witnesses were asked if they had agreed to testify truthfully and the prosecutor made some references to such effect in closing argument. As stated by this Court:

"In the case at bar, the prosecution's questions went beyond mere disclosure of the fact that a plea agreement had been reached. Here the prosecutor asked each accomplice if he had agreed to testify truthfully. No Michigan case has considered whether the disclosure of an agreement to testify truthfully is permissible." Buschard, supra, pp 313-314.

Lytal does not address that issue. Further, we find nothing in Lytal which by implication suggests that, under the limited circumstances in which the questions were asked and the argument made to the jury, reversal is required. Our reasons for finding no error were detailed at length in our first opinion. In the absence of anything in Lytal even remotely referring to the question, we decline to change our initial opinion.

Defendant's convictions are reaffirmed.

NOTES

[1] Issue three is discussed in People v Buschard, supra, pp 313-317.

[2] However, one of the issues raised in this case was the prosecution's failure to indorse the informant and certain alleged res gestae witnesses. Buschard, supra, pp 312-313.