People v. Poma 96 Mich. App. 726

D. C. Riley, J.

On June 13, 1978, defendant was convicted by a jury of possession of marijuana with intent to deliver, contrary to MCL 335.341(1)(c); MSA 18.1070(41)(1)(c). He was sentenced to four years probation with the first six months to be served at the Detroit House of Correction and now appeals as of right.

The primary issue on appeal concerns the impact of a witness’s privilege against self-incrimination on a defendant’s right to a fair trial. Timothy Maguire, the owner of the car from which marijuana was seized, was endorsed as a witness at trial. An evidentiary hearing was held outside the presence of the jury to determine the applicability and scope of this witness’s Fifth Amendment privilege against self-incrimination. The witness asserted this privilege in response to many questions relating to the car’s ownership or location, his loaning of the keys, his relationship to the defendant, etc. At the conclusion of the hearing, the trial court stated that Mr. Maguire did not have a *730valid Fifth Amendment privilege and that even if he did he had waived it. Similar questions were asked of the witness when he appeared without benefit of counsel at trial. He then answered many of the questions directed to him with the response, "I don’t remember”.

Defendant claims that the trial court erred in concluding that the witness had waived any privilege against self-incrimination. We need not address the validity of the witness’s privilege since it is clear that the defendant has no standing to dispute the court’s ruling. People v St Onge, 63 Mich App 16, 18; 233 NW2d 874 (1975). The more pertinent issue is whether the witness’s attempted on-the-stand assertion of the privilege prejudiced the defendant. Although this issue was not properly framed by the defendant, we will address it since it "seriously affect[s] [the] substantial rights of the accused”. People v Jordan, 7 Mich App 28, 32; 151 NW2d 242 (1967).

Both Federal and state courts have recognized the potential prejudice that results when a witness is placed on the stand and invokes the Fifth Amendment. See generally, Anno: Prejudicial effect of prosecution’s calling as witness, to extract claim of self-incrimination privilege, one involved in offense with which the accused is charged, 86 ALR2d 1443. When a witness who is substantially related to the criminal episode, such as an accomplice, asserts this privilege, critical weight is added to the prosecution’s case. See Namet v United States, 373 US 179, 187; 83 S Ct 1151; 10 L Ed 2d 278 (1963), Commonwealth v Terenda, 451 Pa 116; 301 A2d 625 (1973), State v Cullen, 103 NJ Super 360; 247 A2d 346 (1968). His "statement” is thus admitted without opportunity for the defendant to engage in necessary confrontation and cross-exam*731ination. See Namet, supra, Terenda, supra. See also Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968), Pointer v Texas, 380 US 400; 85 S Ct 1065; 13 L Ed 2d 923 (1965), Douglas v Alabama, 380 US 415; 85 S Ct 1074; 13 L Ed 2d 934 (1965).

Michigan has recognized the intrinsic prejudice which results from certain witnesses invoking of the Fifth Amendment, but prohibition has been limited to assertions of a valid privilege. In People v Giacalone, 399 Mich 642; 250 NW2d 492 (1977), the Supreme Court placed the protective burden on counsel’s shoulders, saying:

"A lawyer may not knowingly offer inadmissible evidence or call a witness knowing that he will claim a valid privilege not to testify.” Giacalone, supra, 645.

Subsequent cases have restated the standard as one applying to any privilege or have questioned the original limitation. See People v Benton, 402 Mich 47, 60, fn 18; 260 NW2d 77 (1977), People v Johnson, 83 Mich App 1, 13-14; 268 NW2d 259 (1978). See also, People v McNary, 43 Mich App 134, 140-141; 203 NW2d 919 (1972). We agree with the Pennsylvania Supreme Court that the validity of the witness’s privilege has no bearing on the prejudice that results to defendant when that witness repeatedly asserts the Fifth Amendment privilege on the stand. See Commonwealth v Davenport, 453 Pa 235; 308 A2d 85 (1973).

"If there is some connection between the defendant and the witness, often a jury will illogically infer guilt of the defendant because of the refusal of the witness, with knowledge of the facts, to testify.” McNary, supra, 140.

*732Great care should be exercised by both the trial court and the prosecution to prevent such inferences and to preserve a defendant’s right to a fair trial. McNary, supra, People v Brocato, 17 Mich App 277, 304; 169 NW2d 483 (1969). When the court is confronted with a potential witness who is intimately connected with the criminal episode at issue, protective measures must be taken. The court should first hold a hearing outside the jury’s presence to determine if the intimate witness has a legitimate privilege, as was done in the instant case. See In re Vickers, 371 Mich 114, 117; 123 NW2d 253 (1963), People v Savard, 73 Mich App 175, 179; 250 NW2d 565 (1977). This determination should be prefaced by an adequate explanation of the self-incrimination privilege so the witness can make a knowledgeable choice regarding assertion. See People v Bashans, 80 Mich App 702; 265 NW2d 170 (1978), People v Diponio, 48 Mich App 128; 210 NW2d 105 (1973). This was not done in the instant case. In fact, when asked if he understood the privilege, the witness commented "Nobody’s explained it to me, but I can figure it out myself’. We do not believe that the burden of comprehending the privilege should rest with witnesses; the responsibility of informing must be the court’s.

If the court concludes that the witness has no legitimate privilege, it should consider contempt penalties or other alternate remedies against the witness. Yet, with respect to the defendant, the court must proceed to determine if the witness intends to assert that privilege, whether validly or invalidly, at trial. If the intimate witness intends to claim the protection of the Fifth Amendment at trial, there really is no way to prevent prejudice to the defendant absent barring that witness. See McNary, supra, 140-141. As other jurisdictions *733have noted, a cautionary instruction that no negative inference is to be drawn from the witness’s taciturnity is ineffectual. See People v Paulino, 60 App Div 2d 769; 400 NYS2d 421 (1977), Terneda, supra, Cullen, supra.

"The naive assumption that prejudicial effects can be overcome by instructions to the jury * * * all practicing lawyers know to be unmitigated fiction.” Bruton, supra, 129.

We hold that it is inherently prejudicial to place a witness on the stand who is intimately related to the criminal episode at issue, when the judge and prosecutor know that he will assert the Fifth Amendment privilege. When a judge determines at the evidentiary hearing that the intimate witness will either properly or improperly claim the protection against self-incrimination, he must not allow this witness to be called to the stand.

Although the instant judge cannot be held to this specific, newly-enunciated standard, we believe that he should have been aware of the announced inherent danger and prejudice of putting such a witness on the stand. See Namet, supra, McNary, supra, People v Bordine, 29 Mich App 112, 114; 185 NW2d 164 (1970). See also Johnson, supra. Not only was a deliberate attempt to draw incriminating inferences from the witness’s evasive answers tolerated by the trial court, it was actively encouraged. See Bashans, supra. Under these circumstances, we believe that the defendant was denied a fair trial and must be accorded a new one.

In light of the disposition of this case, defendant’s other arguments need not be addressed.

Reversed and remanded for a new trial.

*734Bronson, J., concurred.

M. J. Kelly, P.J.

(concurring). I concur in reversal but do not adopt the newly enunciated rule advocated by the majority. Adequate grounds for reversal exist in the trial court’s management of this witness without resort to a universal rule which may conflict with the prosecutor’s duty to produce all res gestae witnesses.

The trial court erred in its determination that witness Timothy Maguire waived his Fifth Amendment privilege by his responses to questioning at the evidentiary hearing. His testimony at that time concerned prior offenses, the people with whom he lived, when he first met defendant, and when he first learned of defendant’s arrest. None of these answers could be construed as incriminating.

Moreover, an examination of the testimony which the prosecution attempted to elicit indicates that Mr. Maguire’s assertion of privilege was, indeed, appropriate. The questions pertained to his ownership and the location of the car in whicli the contraband was found. Admission by the witness that he owned the vehicle in question, that he parked it in the plant parking lot, and that he had loaned the keys to defendant would certainly have provided a link in the chain of evidence necessary to prosecute the witness for possession of marijuana.

Once in front of the jury, the witness suffered a memory loss on many of the same matters originally the subject of his Fifth Amendment claim. When defense counsel objected to the line of questioning, the court stated that it would permit continued questioning because, "It’s hurting your client”. The course chosen appears to have been a *735deliberate approval of an approach concededly prejudicial to the defendant. The proper procedure for the court, which was obviously frustrated by the witness’s behavior, would have been to threaten the witness with contempt.