People v. Emanuel , 98 Mich. App. 163 ( 1980 )

98 Mich. App. 163 (1980) 295 N.W.2d 875

PEOPLE
v.
EMANUEL

Docket No. 78-1738.

Michigan Court of Appeals.

Decided June 16, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Charles H. Seller, Assistant Prosecuting Attorney, for the people.

Daniel J. Wright and Mardi Crawford, Assistant State Appellate Defenders, for defendant on appeal.

Before: R.M. MAHER, P.J., and M.F. CAVANAGH and CYNAR, JJ.

CYNAR, J.

Following a lengthy jury trial, defendant was found guilty of first-degree premeditated murder, MCL 750.316; MSA 28.548, and of arson of a dwelling house, MCL 750.72; MSA 28.267. He received the mandatory life sentence on the former conviction and a concurrent 13 to 20 year term of imprisonment on the latter. Defendant appeals as of right.

I

The victim, one Lynn Bradfield, died of strangulation by ligature. At trial, the testimony established that defendant had met Taurus Duncan, an accomplice, some five years prior to the murder. Both knew the decedent. Duncan and the defendant became friends. At the time of the homicide, both were employed at the Chrysler Mound Road Engine Plant and often drove to and from work together. Duncan professed to being in love with defendant, who was married.

Approximately three years prior to the killing, Duncan had met the deceased. A year later, in 1975, Duncan went to California and remained domiciled there for a year. During that same period, the victim had given birth to a daughter, Renee, referred to as "Tiffany" by Ms. Duncan. When Duncan returned to Detroit, she told defendant that Renee was her child, that she had given birth to her while in California, and that he (Emanuel) was the father. She claimed that she had given "Tiffany" to the victim to care for her and that the victim and her husband had adopted Renee. Defendant from that point forward saw the child frequently, lavished gifts upon her, took her and Duncan on various outings, and introduced Renee to his family as his own child.

The day prior to the murder, June 16, 1977, Duncan and defendant twice spoke with regard to killing Lynn Bradfield and taking the child, although they both testified that it began as a joke.

Finally, that same evening, defendant and Duncan drove to the victim's apartment in Taylor, Michigan, using a car owned by defendant's father to avoid being recognized, as defendant's car had been seen in the vicinity many times previously. On the way, they stopped to fill a gasoline can, which was used to douse the apartment with gasoline in order to set a fire that would destroy any evidence.^[1] Upon arriving, Duncan entered the apartment alone, leaving the gas can on the front porch.

It is at approximately this point where the stories of defendant and Ms. Duncan diverge. Defendant maintained in two statements given the police, as well as in his testimony at trial, that he never left his father's car that evening and had nothing to do with the strangulation of Lynn Bradfield or with the arson. He claimed that he fell asleep in the car and did not awaken until Duncan returned to the car with the gas can and with "Tiffany", at which time she told defendant "I killed my aunt". Defendant contended that it was Duncan alone who strangled the victim with a dog leash, spirited the baby away, and set fire to the apartment.

According to defendant's second in-custody statement, Duncan carried out a preconceived plan to first strangle the victim with the dog leash while combing her hair, then take the baby, and finally set fire to the apartment. In this statement defendant maintained that, even after driving Duncan to the apartment, he did not believe she would go through with the plan. On the witness stand at trial, and in his earlier statement to the police, defendant denied any prior knowledge of the plan.

The testimony given by Ms. Duncan, the principal prosecution witness, which was consonant with her previous custodial statement, recounted a story quite different from that told by defendant. Duncan's testimony generally accorded with defendant's until the point immediately after she put the dog leash around the decedent's neck.^[2] At that juncture, while she held the leash tightly, she signalled defendant to enter the apartment by flicking the porch light on and off. Defendant next entered the apartment, argued with Duncan, and then told her that they had to go through with it.

According to Duncan, defendant grabbed the victim by the hair, while simultaneously grabbing the leash, and then dragged her upstairs. Duncan took "Tiffany" and then left the apartment, leaving defendant alone with the decedent, whom Duncan said was gagging but still alive.

Duncan waited in the car for defendant. They had left another child in the apartment, as per the plan to substitute another infant for "Tiffany". As they drove away, Ms. Duncan saw flames coming from the apartment.

Defendant raises a number of issues on appeal which merit discussion. In particular, he argues against the admission into evidence at trial of the two statements he made to the police. The first was made July 25, 1977, before any statement was given the police by Taurus Duncan; the second was made the following day, July 26. The two custodial statements of defendant, inconsistent with each other as well as with defendant's testimony at trial, supplied the major ammunition for the impeachment of defendant by the prosecution and served to discredit, or at least cast doubt upon, substantial portions of defendant's testimony in his own behalf on direct examination.

II

Defendant first contends that the trial court reversibly erred in admitting his statement of July 25, as it was the product of an illegal arrest, one made in the absence of probable cause. Since the arrest, if one can be said to have occurred, was illegal, the statement should have been excluded as fruit of the poisonous tree.

We must initially determine whether an arrest in the Fourth Amendment sense took place on July 25. The trial court ruled that one had not.

On July 25, 1977, a Lieutenant Stewart of the Detroit Police called the Taylor Police Department and gave them defendant's name and address, as well as informing them of a conversation he had had with defendant and defendant's cousin, a Detroit policeman, a few days earlier. The substance of that conversation led Stewart to believe that defendant was possibly involved in the Bradfield murder. Stewart had told defendant to go to the police, and when he called the Taylor police and learned that defendant had not contacted them, Stewart gave them the above-described information.

Acting on this lead, Taylor police went to defendant's residence, arriving before defendant. When defendant drove up, he was approached by two officers who identified themselves and informed defendant that it was their understanding he had information relating to a killing. Defendant was told that the officers wanted to talk to him at the police station.

Defendant responded that he had intended to go to the Taylor Police Department and speak with someone, but that he had not yet gotten around to it. Defendant agreed to go to the police station with the officers. Defendant was given the option of riding with the police or of following in his own car, according to the officers. Defendant denied being given a choice.

Before being placed in the police car, defendant was patted down, but he was not handcuffed. Defendant claimed that he was told he was under arrest, but the officers denied telling defendant either that he was or was not under arrest. One of the officers present at that time testified that, while he did not feel that defendant had been placed under arrest, defendant would not have been allowed to leave if he asked to do so. The officer also said that if defendant had attempted to leave he would have been placed under arrest.

Arriving at the station, defendant was neither fingerprinted nor booked, but instead was taken to the detective bureau. Apprised of his Miranda^[3] rights, defendant proceeded to give his first statement, which was tape recorded. He was then released.

The Michigan Supreme Court has recently reexamined the constitutional law relating to arrests in People v Summers, 407 Mich. 432; 286 NW2d 226 (1979). The Court quoted from Terry v Ohio,^[4] which quotation in relevant part declared:

"``Obviously, not all personal intercourse between policemen and citizens involves "seizures" of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred.'" Summers, supra, 444.

Thus, the sine qua non for an arrest or "seizure" of the person of a defendant is a significant restraint of freedom, an intrusion more severe than a Terry-type "stop and frisk". Summers, supra, 444-446. As noted by the Court in Summers, the Terry rationale is extremely limited in scope and will justify only brief on-the-street stops, with attendant questioning regarding suspicious activity, and limited weapons-frisks when necessary to insure safety. Id., 447. It is obvious, therefore, that Terry cannot be used to justify the actions of the police in the case at bar.

Plaintiff however argues that defendant voluntarily accompanied the police to the station following a request to do so, and, as such, no arrest took place. Defendant argues to the contrary, claiming that, because the police intended to exercise control over the defendant and because the circumstances indicated that defendant and because reasonably believed that he was under police control, there was an arrest, a "seizure" of his person for Fourth Amendment purposes.

An examination of this constitutional claim requires us to review the facts of this case in light of the holdings in Brown v Illinois, 422 U.S. 590; 95 S. Ct. 2254; 45 L. Ed. 2d 416 (1975), and Dunaway v New York, 442 U.S. 200; 99 S. Ct. 2248; 60 L. Ed. 2d 824 (1979).

As Brown points out, mere recitation of the Miranda warnings will not serve as a panacea, validating an otherwise unconstitutional seizure of the person of a defendant on less than full probable cause and rendering admissible in evidence any fruits derived therefrom, including an otherwise voluntary confession. Brown, supra, 601-603. The warnings are instead but one of several factors to be looked at in determining whether a confession is obtained by exploitation of an illegal arrest and become relevant at the point where the Fourth and Fifth Amendment protections interface.

We must yet confront the antecedent question of whether an arrest took place. In deciding this question, we look to Dunaway to provide the analytical framework.

In Dunaway, the police located the defendant, who was suspected of a crime, at a neighbor's home and drove him to the police station for questioning. Although defendant was not told he was under arrest, he would have been physically restrained if he had attempted to leave.

The Supreme Court found that the police actions were violative of the Fourth Amendment, as there was no probable cause to arrest the defendant. Relying on the language found in Terry, quoted hereinbefore, the Court concluded that defendant had been "seized" within the meaning of the Fourth Amendment under that standard. The Court upheld the finding of the trial court that defendant did not voluntarily accompany the police, stating in footnote 6 of Justice Brennan's majority opinion:

"``It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person,' Terry v Ohio, 392 U.S. 1, 16 (1968). Respondent contends that petitioner accompanied the police voluntarily and therefore was not ``seized.' Brief for Respondent 7-9. The County Court found otherwise, App 117, quoted supra, at p 205; and the Appellate Division treated the case as an involuntary detention justified by reasonable suspicion. See [People v Dunaway,] 61 App Div 2d [299], at 302-303, 402 NYS2d [490], at 492 [(1978)]. See also ALI, Model Code of Pre-Arraignment Procedure § 2.01(3) and commentary, p 91 (Tent Draft No. 1, 1966) (request to come to police station ``may easily carry an implication of obligation, while the appearance itself, unless clearly stated to be voluntary, may be an awesome experience for the ordinary citizen')." Dunaway, supra, 207.

The Court went on to hold that an involuntary detention such as had occurred in that case could be justified only upon a showing of full probable cause to arrest. In elaborating thereon, the Dunaway Court opined:

"[T]he detention of petitioner was in important respects indistinguishable from a traditional arrest. Petitioner was not questioned briefly where he was found. Instead, he was taken from a neighbor's home to a police car, transported to a police station, and placed in an interrogation room. He was never informed that he was ``free to go'; indeed, he would have been physically restrained if he had refused to accompany the officers or had tried to escape their custody. The application of the Fourth Amendment's requirement of probable cause does not depend on whether an intrusion of this magnitude is termed an ``arrest' under state law. The mere facts that petitioner was not told he was under arrest, was not ``booked,' and would not have had an arrest record if the interrogation had proved fruitless, while not insignificant for all purposes, see Cupp v Murphy, 412 U.S. 291; [93 S. Ct. 2000; 36 L. Ed. 2d 900] (1973), obviously do not make petitioner's seizure even roughly analogous to the narrowly defined intrusions involved in Terry and its progeny." Dunaway, supra, 212.

The circumstances present in the instant case cannot be distinguished from those which controlled in Dunaway. Of crucial import are the facts that defendant was never expressly told that his appearance at the station was voluntary, that he was never informed that he was "free to go", and that he would have been restrained if he refused to go to the station or had tried to escape the officers' custody. Moreover, the fact that defendant was given the option of driving his own car to the station carries de minimis weight insofar as it is relevant to the question of whether he accompanied the officers voluntarily and whether the fact that he had a choice in the matter had been communicated to him. When defendant returned home, he was met by two policemen who were total strangers to him and who expressed a desire that defendant accompany them.

We conclude that this situation was pregnant with the "implication of obligation", and, as such, we cannot say that defendant voluntarily accompanied the police. Accordingly, we hold that the actions of the police in this case constituted a "seizure" of defendant's person under the Fourth Amendment, and that such arrest, conceded to have been made in the absence of probable cause, was illegal.

However, this alone does not per se require the suppression of the statement made by defendant to the police on July 25. Under Fourth Amendment rubric, the confession must be excluded from evidence only if it was obtained by exploitation of the illegal arrest, i.e., if it was the product of the illegal arrest. Brown v Illinois, supra, 603, Dunaway v New York, supra, 216-218. The focus is on the causal nexus between the illegality and the confession, or, to put it another way, the question is whether the connection was sufficiently attenuated to permit the use at trial of the evidence obtained during the period of illegal detention: whether the statement was purged of its primary taint. Brown, supra, 602-604, Dunaway, supra, 217-218, and the cases cited therein.

Brown sets out a number of factors which are relevant in determining the admissibility of a confession obtained while a defendant is illegally detained:

"The question whether a confession is the product of a free will under Wong Sun [v United States, 371 U.S. 471; 83 S. Ct. 407; 9 L. Ed. 2d 441 (1963)] must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test. The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant. The voluntariness of the statement is a threshold requirement. And the burden of showing admissibility rests, of course, on the prosecution." (Footnotes and citations omitted.) Brown, supra, 603-604.

While not expressly enumerated as a factor worthy of consideration, we find that any antecedent circumstances, i.e., events transpiring prior to the "arrest", may well be relevant to the question of whether the statement should be excluded. We do not perceive an intention by the Court to make the factors listed in Brown exclusive and/or exhaustive.

The voluntariness of the confession in a Fifth Amendment sense is not directly challenged. However, as Brown points out, the Fourth Amendment question is whether the statement is "sufficiently" an act of free will so as to purge the primary taint of the unlawful arrest. Brown, supra, 599. Phrased another way, we must determine if the confession was obtained by means sufficiently distinguishable to be purged of the primary taint. That is why the giving of the Miranda warnings, although a factor operating in favor of admissibility under Brown, is not alone dispositive of the causal nexus question.

Militating against admissibility was the temporal proximity between the arrest and the confession as well as the fact that there was no intervening event of significance whatsoever. So too, as in Brown, the arrest of defendant without probable cause therefor had a "quality of purposefulness" about it, although it was much less of a "fishing expedition" for evidence than the police actions were in that case, and surely less flagrant misconduct. Dunaway adds little to this analysis, as the Court therein characterized that case as "virtually a replica of the situation in Brown". Dunaway, supra, 218.

What we find to be the factor which distinguishes the case at bar from Brown and Dunaway is the conversation involving defendant that took place prior to his arrest and confession, which, in our opinion, operated to sufficiently attenuate any causal connection between the arrest and the giving of the inculpatory statement by defendant so as to justify the admission of the confession in evidence at trial. The necessary nexus was not present because, as we see it, the quintessential variable which compelled or motivated defendant to make a confession was his earlier discussion with his cousin and Lieutenant Stewart, at which time he made a statement which contained the essence of his later July 25 confession, plainly was made of defendant's own volition, without the inherent coercion of a custodial environment or any other compunction, and was told to a police officer defendant had never previously met. Also supportive of this conclusion is defendant's statement to the Taylor police at the time he was first approached by them, to the effect that he had intended to come speak with them but had not yet done so. More importantly, defendant, immediately following his conversation with Lieutenant Stewart, had expressed an intention to turn himself in to the Taylor police while accompanied by counsel.

We find these circumstances to be sufficient to satisfy the prosecution's burden of showing that the custodial statement given by defendant to the Taylor police on July 25 was sufficiently an act of free will to justify admission, i.e., that the confession was not obtained by exploitation of the illegal arrest under the standard announced in Brown and explicated in Dunaway.

III

Defendant next assigns as reversible error the admission into evidence of his custodial statement of July 26, 1977, a claim inextricably intertwined in large part with his contentions regarding the statement of July 25. This statement was given to police after Taurus Duncan had made a confession to the police, which confession was substantially at odds with defendant's statement of July 25 and which indicated a materially greater degree of culpability and participation in the planning and actual killing of Lynn Bradfield than defendant had previously admitted.

Defendant specifically argues that: (1) this statement was the product of an illegal arrest; and (2) it was coerced by the implicitly threatening comments of the interrogating officer.

We reject the former contention, as it is predicated upon the holding of Brown v Illinois, supra, that the second statement of the defendant therein was inadmissible because it was clearly the product of that defendant's first inadmissible confession. Here, we have already determined that defendant's first statement was admissible, inasmuch as it was not the product of an illegal arrest. Therefore, even if the second statement flowed inexorably from the first, it would not be the direct or indirect product of the primary taint or illegality, defendant's arrest, nor would it be infirm as being a direct result of the first confession, as that confession was clearly valid. Wong Sun v United States, 371 U.S. 471, 484-485, 488, 491; 83 S. Ct. 407; 9 L. Ed. 2d 441 (1963).

We are likewise unpersuaded by defendant's argument that his second statement was coerced by the implicitly threatening comments of the interrogating officer to the effect that defendant could be charged with first-degree murder.^[5] As noted by the trial judge, some of the language used by the police was objectionable and bordered on being threats. However, we believe that defendant was led to make this second statement for reasons other than these "threats" or any other language of the interrogating officer which could be construed to be promises of leniency.

This Court will not reverse a trial court's finding that a confession was voluntary unless it is left with a firm conviction that a mistake was made. People v Smith, 80 Mich. App. 106, 111; 263 NW2d 306 (1977), lv den 406 Mich. 920; 275 NW2d 259 (1979). Reviewing the totality of the circumstances, we are not left with such a conviction. The factors which we find persuasive are: (1) that the previous day defendant gave a statement which tended to implicate him in the murder; (2) at that time, defendant agreed to return voluntarily to the station for further questioning; and (3) upon his arrival, he was informed that Taurus Duncan had given a statement differing from his earlier statement, from which the police knew to a greater degree of certainty that defendant was involved. We further note that a confession will not be found to be coerced merely because the police confront the defendant with the evidence against him, as was the case here. People v Ricky Smith, 85 Mich. App. 32, 47-48; 270 NW2d 697 (1978). We conclude that the above factors impelled defendant to make the second statement, more so than any language used by the interrogating officer, and uphold its admission into evidence at trial.

IV

We find no reversible error in the trial court's refusal to suppress the identification testimony of a witness who claimed to have seen defendant walking near the scene of the homicide around the time it occurred. We cannot say that the court below was clearly in error in concluding that the prosecution acted in good faith in telling defense counsel that no identification testimony would be heard from that witness and that, therefore, suppression of such testimony was unnecessary. People v Ulrich, 83 Mich. App. 19, 21; 268 NW2d 269 (1978), cf., People v Amison, 70 Mich. App. 70, 76-82; 245 NW2d 405 (1976).

Our review of the record indicates that the witness inadvertently viewed defendant through a courtroom door window while jury voir dire was being conducted and recognized him. The witness had mistakenly shown up at the courthouse believing he was to testify that day. We do not believe that the witness's identification testimony at trial was solely, if at all, the product of this chance viewing. Moreover, the record is clear that the police felt that the man the witness saw the night of the murder was not defendant because of the discrepancy between the witness's description of the clothes that man was wearing and the description of the clothes worn by defendant that night given by defendant himself and by Taurus Duncan.

Defense counsel could have requested that a lineup be held for that witness, notwithstanding the representations of the prosecution. Counsel also could have attempted to contact the witness for purposes of conducting his own investigation and, thus, must share the responsibility for the loss of any meaningful lineup evidence. Moreover, it is clear that a defendant is not entitled to a lineup as a matter of right, People v Mann, 89 Mich. App. 511, 515; 280 NW2d 577 (1979), and that the granting of a pretrial lineup is a matter addressed to judicial discretion. People v Farley, 75 Mich. App. 236, 239; 254 NW2d 853 (1977). Therefore, even if defendant had been informed that the witness would identify defendant at trial, there was no assurance that a request to hold a lineup would have been granted, although we would assume such request would have been granted if made. In sum, although the prosecution's representations may have dissuaded defense counsel from seeking a lineup, they did not foreclose addressing such request to the trial judge. Counsel's lack of due diligence in a situation where multifarious methods of discovering favorable evidence were at his disposal militates against suppression of the identification testimony. In addition, defendant has made no preliminary showing, other than conjecture, that any identification evidence flowing from a lineup would necessarily have been favorable to his defense, even under the liberalized standard found in People v Amison, supra, 77-78.

Finally, the identification at trial was not subject to exclusion on the ground that the pretrial identification procedure was impermissibly suggestive, as the witness's initial perception of defendant on the night of the homicide would provide an independent basis for the in-court identification under People v Kachar, 400 Mich. 78, 91-97; 252 NW2d 807 (1977), notwithstanding the prosecution's doubts. For all the above reasons, we conclude that suppression of the identification testimony was not required.

V

Defendant's claim that he was denied a fair trial as a result of the manner in which a jury view of the area near where the victim was killed was held, at defense counsel's request, is similarly wanting in merit. People v Connor, 295 Mich. 1, 6; 294 N.W. 74 (1940).

VI

Defendant next urges us to find reversible error in the cross-examination of defendant by the prosecutor, wherein the prosecutor asked defendant if defendant, his wife, and Taurus Duncan had all slept together. Although no objection was made at trial, defendant argues that the prejudice which inheres from such questioning resulted in manifest injustice requiring reversal even in the absence of objection. Initially, we note that earlier in the trial defense counsel in cross-examining Taurus Duncan inquired of her whether she had ever said that, if she could not have defendant, no one would. The witness acknowledged making the statement in the presence of defendant's wife. On redirect, the prosecution established that defendant's wife knew that Ms. Duncan and defendant were lovers.

Defendant denied on direct examination that his wife knew of his relationship with Duncan. The disputed cross-examination ensued shortly thereafter.

Clearly, the relationship between Ms. Duncan and defendant was relevant to the case because it was Duncan who allegedly influenced defendant to commit the offense. During the course of the trial, counsel for both sides were given wide latitude in exploring the nature of that relationship. Defense counsel first raised the question of Taurus Duncan's relationship with defendant's wife. Once defense counsel had opened the door to this line of inquiry, the prosecution was entitled to question defendant regarding his wife's knowledge of the relationship.

Although the question put forward by the prosecutor had little, if any, relevance to the issue of defendant's wife's knowledge of defendant's relationship with Ms. Duncan, we do not perceive it to have resulted in manifest injustice which denied defendant a fair trial, especially given the fact that the defense pursued similar collateral lines of inquiry. Nor do we charge the trial court with an abuse of discretion in allowing the same. People v Johnson, 393 Mich. 488, 498-499; 227 NW2d 523 (1975), People v Dye, 356 Mich. 271, 277; 96 NW2d 788 (1959), People v Duke, 50 Mich. App. 714, 717; 213 NW2d 769 (1973), lv den 393 Mich. 753 (1974), People v Kincade, 61 Mich. App. 498, 506; 233 NW2d 54 (1975). Therefore, we decline to reverse on this ground.

VII

Defendant raises a final issue meriting discussion. He claims that he was denied a fair trial because Taurus Duncan was allowed to assert her patient-psychiatrist privilege, thereby preventing the psychiatrists whom she had visited following the murder from testifying. Defendant argues that, when an accomplice testifies on behalf of the state and implicates a third person, he or she waives any and all privileges. Also, absent access to statements made by Ms. Duncan to her psychiatrists, defendant was not able to effectively impeach her testimony, which impeachment was crucial to the defense, and was thereby denied his right of confrontation.

Plaintiff contrarily contends that the privilege in issue here can be waived only when the witness testifies as to matters about which the psychiatrist has personal knowledge, not when the testimony of the psychiatrist would serve merely to impeach the patient-witness's credibility. Moreover, as no offer of proof was made as to the nature of the testimony which would be offered if the privilege were found to be waived, such defect precludes reversal on this basis.

On cross-examination Ms. Duncan testified that she had seen a psychiatrist since the killing. However, she denied that the reason therefor was because she had dreams of Lynn Bradfield burning.

When defense counsel attempted to call a psychiatrist who had seen Duncan, the prosecution objected, arguing that any testimony relative to such visits was barred by the psychiatrist-patient privilege.

A case factually quite similar to the instant case is People v Bortnik, 28 Mich. App. 198; 184 NW2d 275 (1970). There, an alleged accomplice testified against the defendant and then denied any knowledge of a "deal" with the prosecution made in exchange for his testimony. When defense counsel attempted to call the accomplice's attorney to question him regarding the "deal" for the purpose of impeaching the accomplice-witness's prior testimony, the trial court ruled that the communications between the witness and his attorney were privileged.

This Court disagreed, ruling that "[w]hen an accomplice testifies on behalf of the state and implicates a third person he waives any and all privileges. He cannot testify to those facts supporting his story and then claim privilege to defeat cross-examination." Bortnik, supra, 200. The Court went on to reverse defendant's conviction and remand for a new trial at which the privilege was to be inapplicable. We note that Bortnik has neither been followed nor rejected in any subsequent decision of this Court.

However, a more recent case, People v Davis, 91 Mich. App. 434; 283 NW2d 768 (1979), lv den 407 Mich. 868 (1979), held that, at least in the discovery context, a generalized claim of privilege must yield only to a demonstrated specific need for evidence in a pending case, i.e., that the evidence sought must be "demonstrably relevant". Id., 442. In that case, defendant sought to discover records of complainant's treatment for alcoholism, contending that the records bore directly on the defendant's defense of consent. This Court reversed the lower court's order allowing discovery.

Assuming the narrower Davis standard is now the correct one to apply to a factual situation such as in Bortnik and the case sub judice, we cannot say that that standard was satisfied here. The evidence sought might possibly have been proven to be "demonstrably relevant", but in the absence of any offer of proof affirmatively indicating that it was, we decline to speculate to that end. In addition, the failure to make an offer of proof with regard to excluded testimony normally precludes appellate review. Illenden v Illenden, 46 Mich. App. 710; 208 NW2d 565 (1973), lv den 390 Mich. 783 (1973), MRE 103(a)(2).

Were we to review this issue insofar as it relates to defendant's Sixth Amendment claim of a denial of his right of confrontation, we would nonetheless find no reversible error. We are unable to say that, assuming the evidence was erroneously excluded, such error was decisive to the outcome of the case. See People v Merchant, 86 Mich. App. 355, 358; 272 NW2d 656 (1978). Alternatively, we find any error caused by the exclusion to be harmless beyond a reasonable doubt. People v Christensen, 64 Mich. App. 23, 32-34; 235 NW2d 50 (1975), lv den 397 Mich. 839 (1976).

VIII

We conclude that none of the claimed errors necessitates reversal and, therefore, affirm defendant's convictions and sentences.

Affirmed.

M.F. CAVANAGH, J., concurs in the result only.

NOTES

[1] Defendant testified that Taurus Duncan told him that the gasoline was for a lawn mower.

[2] Defendant, at least at trial and in his first custodial statement, denied aiding Duncan in formulating the plan to murder Lynn Bradfield or of having any knowledge before the fact regarding the same, although he did admit at all times to a general knowledge of Duncan's threats to kill the victim and take "her" baby.

[3] Miranda v Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966).

[4] 392 U.S. 1, 19, fn 16; 88 S. Ct. 1868; 20 L. Ed. 2d 889 (1968).

[5] The substance of the officer's statement to defendant was as follows:

"Okay, Lawrence, as we explained to you yesterday, we felt sure you had information regarding this case that would be important to the case and after we talked to you yesterday, and after we talked to Taurus, now that's been confirmed. And we know there are certain things that occurred that night that you are aware of that you participated in. Now, you have already cleared up a certain amount of things and the other problem that arises is that after talking with Taurus, she tells us a number of things that differ from what you told us.

"Now, here's the position that it puts you in. You agreed to take a polygraph and I assume that you will take one. Now you realize that she took a polygraph and failed the polygraph and that's one thing that put us both — that put us on to both of you. And if you take a polygraph and fail it, you are sure to be placed under arrest and charged with first degree murder.

"I have had some conversation again this morning with the lieutenant from the homicide squad. He has talked with your cousin, evidently and the thing that we're most concerned about now is clearing up the total part that you have in the situation.

"Now, Taurus has made certain accusations and some of the things you told us differ greatly from what she told us. We want to make sure you weren't mistaken when you told us certain things yesterday.

"The other thing I want to impress on you is that she is going to come off pretty good because she's cleared up. She has been very straightforward. She came and told us what she has been involved in. That's going to help her a long way as far as what people are going to think or whether she is telling the truth or whether she is lying.

"She sat here and very candidly told us word for word what she thought occurred that night. At this point, we don't know if she is telling the complete truth or if she is lying a little bit. I tend to believe an awful lot of what she told us and the thing I want to impress upon you is that if she goes into this situation and clears up her part completely, she stands a chance of coming out of it pretty decent.

"If you go into it and withhold information for whatever reason, to protect her or to protect yourself, protect your family, more of it is going to be dumped on you. You already realize that. If you get involved and go to trial, that she is going to go on the stand and be — she is going to say one thing and people may or may not believe what she says more than what you say. So how you handle yourself now is very important.

"All right, if you are candid with us, if you clear up everything you are involved in, that is going to go a long way in helping what is going to happen to you. The problem is, if you lie to us and if we find out you are lying, it's going to go against you.

"So you have already agreed to come forward and tell us what parts you knew. All we are asking now is that you tell us the truth.

"The first question I want to ask you about is the automobile."