People v. Smith

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Syllabus Robert P. Young, Jr. Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis

PEOPLE v SMITH

Docket No. 148305. Argued January 13, 2015 (Calendar No. 3). Decided July 30, 2015.

Feronda Montre Smith was convicted in the Genesee Circuit Court, Joseph J. Farah, J., of
armed robbery, MCL 750.529, and first-degree felony murder, MCL 750.316(1)(b), following a
jury trial. The charges were related to the death of Larry Pass, Jr., a drug dealer. At trial, two
prosecution witnesses claimed to have been present when defendant allegedly shot Pass.
Tarence Lard testified for the prosecution as part of a plea agreement for his part in the crime.
Mark Yancy maintained his innocence with respect to the shooting but admitted collecting Pass’s
drugs, helping dispose of the murder weapon, and using cocaine with defendant and Lard after
the shooting. At a pretrial hearing, a Federal Bureau of Investigation special agent who led a
task force had testified that Yancy was compensated for his assistance in an FBI inquiry into
Pass’s murder and a suspected criminal enterprise involving defendant. At trial, however, the
fact and extent of Yancy’s participation in the investigation that led to the prosecution of
defendant and the compensation Yancy received for it were not made known to the jury. Instead,
Yancy testified that he had not been paid for his cooperation in relation to defendant’s case.
Defendant appealed his convictions, arguing in part that he had been denied his Sixth
Amendment right to a speedy trial by a delay of 41 months and that the prosecutor’s failure to
correct Yancy’s false testimony violated his right to due process and denied him a fair trial. The
Court of Appeals, GLEICHER, P.J., and RONAYNE KRAUSE and RIORDAN, JJ., affirmed in
unpublished opinion per curiam, issued October 29, 2013 (Docket No. 304935), because the
panel was not persuaded that the prosecutor’s failure to correct Yancy’s false testimony had
made a difference in the jury’s estimation of his credibility. The panel also concluded that
defendant had not shown prejudice sufficient to constitute a violation of his right to a speedy
trial. Defendant applied for leave to appeal, which the Supreme Court granted. 496 Mich 855
(2014).

In an opinion by Justice MCCORMACK, joined in full by Chief Justice YOUNG and
Justices MARKMAN and VIVIANO and by Justice BERNSTEIN (except for footnote 5), the Supreme
Court held:

The prosecution breached its 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 defendant and the significance
of the witness’s testimony, there was a reasonable probability that the prosecution’s exploitation
of the substantially misleading testimony affected the jury’s verdict.

1. The prosecution may not knowingly use false evidence, including false testimony, to
obtain a conviction. The prosecution has an affirmative duty to correct false testimony, and the
duty specifically applies when the testimony concerns remuneration for a witness’s cooperation.
The duty applies even if the false testimony goes only to the credibility of the witness.
Moreover, the prosecutor’s blameworthiness is relevant. While the prosecutor need not correct
every instance of mistaken or inaccurate testimony, the effect of a prosecutor’s failure to correct
false testimony is the crucial inquiry for due-process purposes. A new trial is required if the
uncorrected false testimony could in any reasonable likelihood have affected the jury’s
judgment.

2. Yancy’s trial testimony undoubtedly left the jury with the impression that he received
no payment of any kind for his participation in this case. That overall impression was false.
Instead of rectifying this false impression, the prosecutor capitalized on and exploited it. When
Yancy specifically denied during cross-examination that he had been compensated in connection
with the investigation of defendant, the prosecutor again did nothing to correct the testimony but
instead used it to her advantage in closing argument, urging the jury to credit Yancy’s story
because he had not received consideration on this case for testifying even though he had received
consideration on other task force cases. 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, underscoring the jury’s false
impression that because Yancy had not been paid to testify, he had no questionable incentive for
his participation in this case.

3. Due process required that the jury be accurately apprised of the incentives underlying
the testimony of this critical witness and that the prosecution not exploit any confusion relating
to this critical topic. No physical evidence connected defendant to the crime, and he was
convicted solely on the testimony of two witnesses who had significant credibility issues. The
jury knew that Lard testified pursuant to a favorable plea agreement for his role in the crime, and
his testimony was inconsistent with Yancy’s version of events. Yancy’s account of the crime
also had inconsistencies and did not cast him in a favorable light. There was, therefore, a basis
for skepticism about both Lard and Yancy. As far as the jury knew, however, Yancy was
uniquely credible in one respect: he was the sole lay witness who did not directly benefit from
his participation in the case. Had the jury been aware of Yancy’s compensation, the prosecution
might well have had a more difficult task persuading the jury to believe Yancy. Given the effect
that Yancy’s uncorrected testimony had on his credibility, the central role that credibility played
in securing defendant’s convictions, and the dearth of other evidence implicating defendant,
there was a reasonable likelihood that the false impression resulting from the prosecutor’s
exploitation of the testimony affected the jury’s judgment. Accordingly, defendant was entitled
to a new trial.

4. While the delay before defendant’s trial was extraordinary, defendant did not show
sufficient prejudice to merit dismissal for a violation of his right to a speedy trial.
 Court of Appeals’ judgment reversed in part, defendant’s convictions vacated, and case
remanded for a new trial.

Justice BERNSTEIN, concurring in part and dissenting in part, concurred with the majority
except for footnote 5 of its opinion, which concluded that defendant had not shown sufficient
prejudice to merit dismissal for a violation of his right to a speedy trial. With respect to
defendant’s speedy-trial claim, Justice BERNSTEIN instead concurred with Part II of Justice
KELLY’S opinion. Accordingly, he would have in addition reversed the judgment of the Court of
Appeals with respect to the speedy-trial claim and remanded this case to the trial court for it to
consider whether the prosecution overcame the presumption of prejudice to defendant’s person
and defense.

Justice KELLY, joined by Justice BERNSTEIN with respect to Part II of the opinion only
(concerning the speedy-trial issue), concurred in the result of the majority’s opinion with respect
to Yancy’s false testimony. She dissented to the extent that the majority expanded the traditional
standard concerning the prosecution’s use of false evidence to instead allow a new trial merely
on the basis of “substantially misleading” testimony, agreeing with Justice ZAHRA on this point.
Applying the traditional standard to this case, however, Justice KELLY agreed that Yancy’s
testimony was false, that it was reasonably likely that his uncorrected false testimony affected
the jury’s judgment, and that defendant was therefore entitled to a new trial. Justice KELLY
dissented from the majority’s resolution of the speedy-trial issue. The trial court did not
correctly apply the balancing test from Barker v Wingo, 407 US 514 (1972), to assess
defendant’s speedy-trial claim after his trial had been delayed for 41 months while he was in
prison. Some of the factors to be considered under the Barker test are (1) the length of the delay,
(2) the justification for the delay, (3) the defendant’s assertion of his or her right, and (4) the
multifaceted prejudice to the defendant. The trial court did not apply the rule that prejudice is
presumed after a delay of 18 months and that the burden then shifts to the prosecution to show
there was no injury to the defendant’s person or defense. Despite a total delay exceeding 18
months when defendant first moved for a speedy trial, the court found that defendant had not
established prejudice because the total delay by the prosecution was less than 18 months. The
Court of Appeals recognized that the trial court had misunderstood the Barker prejudice prong,
but incorrectly concluded that no error had occurred. No prosecutorial evidence overcoming the
presumption of prejudice appears on the record. By failing to fully engage in the balancing
process established by Barker and therefore failing to impose the proper burden on the
prosecution, the trial court did not afford defendant the complete protection of his right to a
speedy trial. Justice KELLY would have reversed the judgment of the Court of Appeals, vacated
defendant’s convictions, and remanded this case to a new judge in the Genesee Circuit Court to
consider whether the prosecution overcame the presumption of prejudice. If that presumption
was overcome, a new trial would be warranted on the basis of the majority’s reasoning.
However, if the presumption was not overcome, a dismissal of all charges would be the only
remedy for the speedy-trial violation.

Justice ZAHRA, dissenting, agreed that the prosecution may not knowingly use false
evidence, including false testimony, to obtain a tainted conviction, but stated that the majority
had turned this constitutional principle into a new requirement that the prosecutor must elicit not
just truthful testimony, but also complete testimony, fully disclosing all the facts and
circumstances of how that witness came to testify. He further concluded that the majority had
imposed an additional duty on the prosecutor to correct a defense attorney’s mischaracterized
questions made during the cross-examination of a prosecution witness. The result was an
unacceptably high and extraordinarily ambiguous standard requiring prosecutors to correct every
instance of mistaken, inaccurate, or incomplete testimony or risk every possible or perceived
contradiction being rendered material. Yancy’s relationship with the government and the details
of his compensation were fully disclosed before trial. What the majority concluded was false or
substantially misleading would be better characterized as incomplete testimony. Accordingly,
the prosecutor did not commit an error by failing to clarify that evidence in the manner required
by the majority. Nor was the prosecutor’s closing argument an improper exploitation of
misleading testimony. Moreover, to the extent that the prosecutor’s actions constituted error,
that error was extinguished by defendant’s waiver, forfeited for lack of preservation, or harmless.
Justice ZAHRA would have affirmed defendant’s convictions.

©2015 State of Michigan
 Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

OPINION Robert P. Young, Jr. Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein

FILED July 30, 2015

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 148305

FERONDA MONTRE SMITH,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

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 US

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.

I. FACTS AND PROCEDURAL HISTORY

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 found

known drug dealer Larry Pass, 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

1
More than three years before the trial in this case, around October 2008, the Federal
Bureau of Investigation paid Yancy $4,000 for information he provided to a joint local
and federal task force relating to the task force’s investigation of the “Pierson Hood
gang” and its wide-ranging criminal activity in the Flint area, including facts relevant to
the murder at issue in this case. Accordingly, this Genesee County prosecution was the
result of the work of that task force, including Yancy’s compensated cooperation with it.

2
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 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

2
The assistant prosecutor who appeared at this pretrial hearing was also the trial
prosecutor.
3
Harris’s full explanation was as follows:

I did determine the amount on Mark Yancy was $4,000. The request
was originally requested or submitted in October of 2008. I could not recall
or could not find the date it was actually paid. The reason for [Yancy’s]
payment was for information against Pierson Hood members and their
involvement, also for the Larry Pass homicide which was against Mr. Lard
and Mr. Smith.

Harris made no further statements about the purposes of Yancy’s compensation, nor did
he describe how the payment was apportioned respective to information about Pierson
Hood or the Pass homicide. We therefore disagree with the dissent’s characterization of
Harris’s testimony as stating that the payment was “due in significant part for [Yancy’s]
cooperation relating to [Pierson Hood].” Post at 5 n 6 (emphasis added).

3
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,

which Yancy denied. 4 By itself, such cautious presentation 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?

4
The full exchange was as follows:

[Prosecutor]: Now, you’ve been paid by a federal agency for
cooperation. Is that correct?

[Yancy]: Yes.

[Prosecutor]: And the money that you were paid was not related to
testifying in this case, was it?

[Defense Counsel]: Objection. Leading.

[Yancy]: No.

The Court: Okay. You can rephrase the question.

[Prosecutor]: I’ll rephrase.

* * *

Were you paid for your testimony in this case?

[Yancy]: No.

4
 [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.

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

5
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 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 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

5
We granted to leave to appeal, limited to two issues: “(1) whether the defendant was
deprived of his constitutional right to a speedy trial; and (2) whether the defendant was
deprived of his due process right to a fair trial through the presentation of perjured
testimony.” People v Smith, 496 Mich 855 (2014).

While we agree that the delay in this case was extraordinary, we are not persuaded
that the defendant has shown sufficient prejudice to merit dismissal for a violation of his
right to a speedy trial. See Barker v Wingo, 407 US 514, 530, 532; 92 S Ct 2182;

6
 II. LEGAL BACKGROUND

A due process violation presents a constitutional question that this Court reviews

de novo. People v Wilder, 485 Mich 35, 40; 780 NW2d 265 (2010). It is inconsistent

with due process when the prosecution allows false testimony from a state’s witness to

stand uncorrected. Napue, 360 US at 269; see also People v Wiese, 425 Mich 448, 453-

454; 389 NW2d 866 (1986); Giglio v United States, 405 US 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 false testimony, to obtain a tainted conviction . . . .” Napue, 360 US

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 US 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 US at 269. Nor is the blameworthiness of the

prosecutor relevant. Smith v Phillips, 455 US 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

F3d 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 US 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

33 L Ed 2d 101 (1972). We therefore affirm on that issue for the reasons stated in the
Court of Appeals’ opinion.

7
contribute[s] to the deprivation of due process.” DeMarco v United States, 928 F2d

1074, 1077 (CA 11, 1991); see Jenkins v Artuz, 294 F3d 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 F2d 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 US at 271-272; see also

Giglio, 405 US 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 F2d 1164, 1169 (CA 3, 1974).][6]

6
See also Jenkins, 294 F3d at 296 (“[W]hile [the prosecutor’s] questions elicited
technically correct answers, . . . they left the jury with the mistaken impression that no
plea agreement existed. We can think of no credible explanation for [the prosecutor’s]
conduct other than an attempt to reinforce [the witness’s] false testimony.”); United
States v Barham, 595 F2d 231, 241 (CA 5, 1979) (asserting the prosecution’s duty to
correct testimony that “if not outright lies, certainly conveyed the false impression that
none of [the] witnesses had received any promises of leniency or other considerations”).

In Harris, a government witness falsely testified during cross-examination that in
exchange for her testimony against the defendants, the prosecution had made no promises

8
 III. APPLICATION

A. FAILURE TO CORRECT TESTIMONY

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

to help her achieve a reduced sentence on pending state charges against her. Harris, 498
F2d at 1166-1167. The prosecutor brought the witness’s false testimony to the attention
of the court and defense counsel a day after the testimony was given but still during the
government’s case-in-chief and offered to stipulate it. Id. at 1167. Unlike the prosecutor
in this case, the Harris prosecutor did not seek to capitalize on the false testimony, but
rather offered to correct it. Id. Indeed, it was the defendant’s affirmative failure to take
advantage of that offer and use other means to reveal the untruth that was fatal to the
ability to complain about it on appeal. Id. at 1170. The dissent overlooks this important
difference, and conflates the distinct prosecutorial duties to disclose exculpatory
information, see Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215
(1963), and to refrain from using false or misleading testimony to obtain a conviction, see
Napue, 360 US at 269. See note 8 of this opinion.

9
investigation of the defendant. To the contrary, the prosecutor further distanced 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 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

7
The obligation to avoid presenting false or misleading testimony of its own witness
begins and ends with the prosecution and is prudent in the unique Napue context because
Napue requires the prosecution’s knowledge of the false or misleading testimony of its
own witnesses. Napue, 360 US at 269. While we do not disagree that a defendant can
waive a claim of error under Napue, we do not share the dissent’s view that there was
waiver in this case. First, we disagree with the dissent that the record reveals any strategy
by defense counsel to keep the impeaching information from the jury. Given that we see
no strategy here, the dissent’s reference to cases finding waiver when counsel
strategically elected not to address a government witness’s false testimony is beside the
point. We note, however, that we do not read all the cases the dissent cites in support of
this general proposition as relevant. Two did not involve false testimony about a
witness’s cooperation agreement, see Beltran v Cockrell, 294 F3d 730, 735 (CA 5, 2002)
(observing that the defendant prevented the prosecution from clarifying the allegedly
false testimony that the defendant was the only person identified as the assailant); United
States v Decker, 543 F2d 1102, 1105 (CA 5, 1976) (noting that any error from the
witness’s false statements about his attorney’s presence at his cooperation meeting were
harmless), and in another, the court held that it was not clear that there was any
cooperation agreement with the witness at all, see United States v Meinster, 619 F2d
1041, 1045 (CA 4, 1980) (“Nothing was promised in exchange for [the witness’s]
testimony in this case.”). Importantly, however, when a prosecutor has capitalized on the
false or misleading evidence, the waiver rule is more nuanced. See Jenkins, 294 F3d at
296 (concluding that there was no waiver because “the prosecutor’s actions cannot be
overlooked on the ground that [defense] counsel did not continue to seek to gain an

10
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

admission from [the witness] as to the plea agreement”); Barham, 595 F2d at 243 n 17
(concluding that there was no waiver because the prosecutor’s “misleading
questions . . . reinforced the deception”); United States v Sanfilippo, 564 F2d 176, 178-
179 (CA 5, 1977) (concluding that there was no waiver when the prosecutor failed to
correct and subsequently capitalized on the false testimony); DeMarco, 928 F2d at 1077
(concluding that there was no waiver when the prosecution’s capitalizing on the
testimony “contributed to the deprivation of due process”). Therefore, even if, as the
dissent argues, counsel had a conscious strategy to keep the true nature of Yancy’s
compensation from the jury, it is far from clear whether that would have led to a waiver
in this case, given that the prosecutor capitalized on the misleading evidence in her
summation to the jury. In any event, what precise role counsel’s effectiveness might play
in determining the reviewability of a Napue complaint on appeal is not one we need reach
today, since the prosecution has never argued in the course of this appeal that the
defendant waived this Napue objection. See People v McGraw, 484 Mich 120, 131 n 36;
771 NW2d 655 (2009).
8
The dissent insists that the prosecution’s duty to correct false testimony under Napue,
360 US at 269, must be coupled with the separate, though often overlapping, duty to
disclose exculpatory information under Brady, 373 US at 87. The dissent consequently
asserts that “[i]t is the secreting of evidence that is offensive to due process.” Post at 5-6.
We agree that the secreting of evidence violates due process, but so too does a
prosecutor’s exploitation of false testimony by a state witness to gain a conviction,
whether done together with a failure to disclose or not. In many cases, dereliction of both
duties happens in tandem when a witness falsely testifies about an undisclosed
cooperation agreement. But they need not happen together, and when they do not, the
prosecution’s Napue duty is not mitigated because it complied with its Brady duty. See
Jenkins, 294 F3d at 296; Sanfilippo, 564 F2d at 178-179; DeMarco, 928 F2d at 1076-
1077; Belmontes v Brown, 414 F3d 1094, 1115 (CA 9, 2005) (“Whether defense counsel
is aware of the falsity of the statement is beside the point. . . . The prosecutor’s duty to

11
correct false testimony arises, not simply out of a duty of fairness to the defendant, but
out of the free standing constitutional duty of the State and its representatives to protect
the system against false testimony.”), rev’d on other grounds sub nom Ayers v Belmontes,
549 US 7; 127 S Ct 469; 166 L Ed 2d 334 (2006) (citations and quotation marks omitted).
The dissent’s argument to the contrary is not supported by the authority it cites. Routly v
Singletary, 33 F3d 1279 (CA 11, 1994), for example, does not address the idea that all
Napue violations must accompany Brady violations. Rather, Routly involved
unsuccessful and overlapping Brady and Napue claims, but each was denied because the
prosecution had complied with each duty. Id. at 1284-1287.

Furthermore, the post-Sanfilippo cases in the United States Court of Appeals for
the Fifth Circuit that the dissent cites certainly did not distinguish Sanfilippo’s relevance
in cases in which, as here, the prosecutor capitalized on a freestanding Napue error.
Compare Sanfilippo, 564 F2d at 178-179 (concluding that there was no waiver when the
prosecutor failed to correct and subsequently capitalized on the false testimony), with
Beltran, 294 F3d at 736-737 (concluding that Sanfilippo was inapposite because the
prosecution had not “used the false testimony consciously allowed by the defense as part
of a legal strategy”), and United States v Antone, 603 F2d 566, 570-571 (CA 5, 1979)
(concluding that Sanfilippo was inapposite because it involved false testimony of “far
more serious impact,” i.e., relating to the conditions of the witness’s plea deal for his
testimony, while Antone simply involved an arrangement to have legal counsel appointed
for the witness). And indeed, at least one post-Sanfilippo case from the Fifth Circuit has
affirmed Sanfilippo’s rule that a prosecutor’s capitalizing on false testimony might result
in a due process deprivation even when the defense can be charged with knowledge of
the evidence. See Barham, 595 F2d at 243 (stating that the prosecutor’s “misleading
questions . . . reinforced the deception” and “undermine[d] the Government‘s argument
that defense counsel waived the false evidence issue” by virtue of his knowledge of the
falsity).

There is no question that the prosecution complied with its Brady obligation
regarding Yancy’s compensation for his cooperation. Yet when Yancy’s trial testimony
did not reflect the true nature of his agreement, instead of clarifying, the prosecutor
exploited the testimony to her advantage. This due process error stands apart from a
failure to disclose. See Jenkins, 294 F3d at 296 (stating that “the prosecutor’s actions
cannot be overlooked” on the ground that defense counsel knew about and “did not
continue to seek to gain an admission from [the witness] as to [his] plea agreement”);
Napue, 360 US at 269 (stating that the duty to correct false evidence arises “when it
appears”). The dissent’s understanding that any Napue violation is only meaningful
when coupled with a Brady violation simply misunderstands the separate duties.

12
Indeed, the prosecutor sought to transform 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 “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, 360 US 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 F2d at 1077; Jenkins, 294 F3d at 294-295.

9
Indeed, it would be a much closer question if the prosecutor had not sought to create a
false impression at closing argument. But the question of whether, in isolation, Yancy’s
uncorrected or unclarified cross-examination testimony would justify reversal is not
before us in this case, and we decline to address it as though it had been presented in that
fashion.
10
We note that the prosecutor’s duty to correct false or misleading testimony particularly
arises in those instances in which law enforcement has directly participated in the subject
matter of the testimony. Such participation would typically arise for purposes of this
duty in the context of plea negotiations or other agreements for cooperation and
testimony involving the prosecutor’s office and others. Such participation may also arise
when, as here, the prosecutor has direct knowledge of an agreement for cooperation
between law enforcement and other persons concerning the particular case at hand.
11
We disagree with the dissent that we “now hold[] prosecutors to the unacceptably high
and extraordinarily ambiguous standard of having to correct every instance of mistaken,
inaccurate, or incomplete testimony or risk the possibility that every possible or
perceived contradiction will be rendered material.” Post at 2. We respectfully submit

13
 B. ERROR AFFECTING THE JUDGMENT OF THE JURY

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 US at 271. Accordingly, the defendant is entitled to a new trial.

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

that the dissent has mischaracterized and broadened the proper understanding of our
opinion. As we emphasize above, a prosecutor need not correct every instance of
mistaken or inaccurate testimony, Martin, 59 F3d at 770, nor must he or she “play the
role of defense counsel, and ferret out ambiguities in [the] witness’s responses on cross-
examination,” Harris, 498 F2d at 1169. Indeed, it is on the basis of the prosecutor’s
exploitative tactics in this case that we conclude that she had and then breached her duty
to correct the false impression she created. Accordingly, to be absolutely clear, we do not
hold today that the prosecutor has a limitless obligation to correct every instance of false
or misleading testimony, regardless of its subject matter.

14
pursuant to a favorable plea agreement for his role in the crime, 12 and 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

12
Lard agreed to testify after spending approximately two years in jail awaiting trial for
his part in Pass’s murder. Lard was charged with felony murder, armed robbery, and
other gun-related offenses, and as he acknowledged during his testimony, he was facing a
mandatory life sentence on those charges. See MCL 750.316(1) (mandatory life
imprisonment without parole for first-degree murder). Pursuant to his plea agreement,
these charges were dismissed, and Lard pleaded guilty to reduced charges of
manslaughter, MCL 750.321, and unarmed robbery, MCL 750.530(1), each of which
carried the possibility of probation.
13
For example, Lard claimed in a pretrial statement to police that the defendant took a
gun from Pass, but testified at trial that he did not see the defendant with a gun at any
time. Lard also initially denied being at Pass’s house on the night of the shooting.
Moreover, Lard insisted that Yancy was a liar; Yancy testified that Lard had pulled a gun
out of his sweatshirt, but Lard denied ever possessing one.
14
Yancy initially told police officers that the defendant was the only one with a visible
weapon. He then contradicted that statement both at the preliminary examination, when
he testified that he never saw the defendant with a gun, and at trial, when he testified that
it was Lard whom he saw with a gun. Yancy also testified at the preliminary examination
that he had not consumed any drugs at Pass’s house before the shooting, though he
admitted at trial that he had. Similarly, he admitted at trial using some of Pass’s drugs
with the defendant and Lard after the shooting, though he had claimed at the preliminary
examination that they never “gave” him any of those drugs (explaining at trial that he
considered “giving” drugs to be different from “sharing” them).

15
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.

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 that

“depended almost entirely on [the falsely testifying witness’s] testimony,” that the use of

the false testimony and the defendant’s resulting inability to properly question the

witness’s credibility “reasonably could have affected the judgment of the jury”).

In concluding that this prejudice was too insignificant to warrant relief, the Court

of Appeals stressed that the impression that he had not been compensated could not have

“bolstered” the “fairly dreadful state of Yancy’s credibility . . . .” Smith, unpub op at 5.

16
We agree that Yancy lacked credibility in a number of respects unrelated to his role as a

paid informant. But we disagree with the Court of Appeals that the impossibility of

raising Yancy’s credibility from an already “dreadful state” is an appropriate way to

frame the critical issue. Instead, the question is what effect would likely have resulted if

the jury had understood that Yancy was compensated for his information against the

defendant. In our view, this unique additional impeachment evidence was not cumulative

or immaterial. See Napue, 360 US at 270 (“[W]e do not believe that the fact that the jury

was apprised of other grounds for believing that the witness . . . may have had an interest

in testifying against [the defendant] turned what was otherwise a tainted trial into a fair

one.”); Reynoso v Giurbino, 462 F3d 1099, 1117 (CA 9, 2006) (“Unlike the other

evidence used to impeach the eyewitnesses . . . such as inconsistent statements and

general attacks on their credibility, evidence of their financial motives would have

established a real incentive to lie, explaining why their testimony may have been

fabricated.”). Rather, there is good reason to believe that if the jury had been made aware

that Yancy was compensated for his cooperation, the prosecution would have had a more

difficult task persuading the jury that he should be believed.

Put simply, the “dreadful state” of Yancy’s credibility would have been even more

dreadful had the jury learned that he was paid for his information against the defendant.

And contrary to the Court of Appeals’ suggestion, the prejudice from the prosecutor’s

exploitation of Yancy’s potentially misleading testimony cannot be discounted simply

because the jury had other reasons to disbelieve Yancy. Indeed, this case demonstrates

the opposite to be true. Presented with a witness who was revealed to be a regular drug

user, to have been in a dispute with the defendant about money, to have taken the

17
victim’s drugs, to have left the victim “gurgling off his blood” on the floor, and to have

then left town for a year, the jury was more likely to have viewed the false inference that

Yancy was not compensated at all for his involvement as the most significant basis for

crediting his testimony against the defendant. 15

Due process required that the jury be accurately apprised of the incentives

underlying the testimony of this critical witness, and plainly that the prosecution not

exploit any confusion relating to this critical topic. See United States v Cervantes-

Pacheco, 826 F2d 310, 315 (CA 5, 1987) (“As in the case of the witness who has been

promised a reduced sentence, it is up to the jury to evaluate the credibility of the

compensated witness.”) (emphasis added). Given the centrality of Yancy’s credibility to

the prosecution’s case and the dearth of other evidence supporting the defendant’s

convictions, we hold that there was a reasonable likelihood that the prosecutor’s

exploitation of Yancy’s misleading testimony affected the judgment of the jury.

15
The dissent argues that the defendant has forfeited his claim of error because he failed
to object at trial and concludes therefore that the defendant’s claim must be reviewed
under the plain-error standard rather than Napue’s standard for reversal. While we are not
convinced that plain-error analysis applies to Napue errors, we disagree with the dissent’s
conclusion that the defendant’s claim does not meet that standard. As outlined above, (1)
an error clearly occurred in this case, (2) that error was “clear and obvious” insofar as the
jury was left with a false impression of Yancy’s involvement, and (3) the error clearly
affected substantial rights insofar as we find that it had a “reasonable probability” of
affecting the jury’s verdict. Furthermore, an error like this, in which the prosecutor
deliberately exploited misleading evidence before the jury, clearly affects “the fairness,
integrity or public reputation of judicial proceedings.” People v Carines, 460 Mich 750,
763; 597 NW2d 130 (1999), quoting United States v Olano, 507 US 725, 736; 113 S Ct
1770; 123 L Ed 2d 508 (1993) (quotation marks omitted).

18
 IV. CONCLUSION

For the foregoing reasons, we conclude that the defendant is entitled to a new trial.

Accordingly, we reverse the judgment of the Court of Appeals in part, vacate the

defendant’s convictions, and remand this case for proceedings consistent with this

opinion.

Bridget M. McCormack
Robert P. Young, Jr.
Stephen J. Markman
David F. Viviano
Richard H. Bernstein (except
for footnote 5)

19
 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 148305

FERONDA MONTRE SMITH,

Defendant-Appellant.

BERNSTEIN, J. (concurring in part and dissenting in part).
I concur with the majority opinion except for footnote 5. With respect to

defendant’s speedy-trial claim, I respectfully disagree with the majority’s conclusion that

defendant is not entitled to relief. Instead, I concur with Part II of Justice KELLY’s partial

concurrence and partial dissent. Accordingly, I would also reverse the judgment of the

Court of Appeals with respect to the speedy-trial claim and remand this case to the trial

court to consider whether the prosecution overcame the presumption of prejudice to

defendant’s person and defense.

Richard H. Bernstein
 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 148305

FERONDA MONTRE SMITH,

Defendant-Appellant.

KELLY, J. (concurring in part and dissenting in part).
I concur in the result of the majority’s opinion with respect to the issue of Yancy’s

false testimony. It is reasonably likely that Yancy’s uncorrected false testimony affected

the judgment of the jury; therefore, a new trial is warranted. I part ways with the

majority to the extent that it would grant a new trial simply for “substantially misleading”

testimony of a material witness that need not rise to the level of falsity and, further,

dissent from the majority’s resolution of defendant’s speedy-trial issue.

I. FALSE TESTIMONY

I would grant a new trial on the basis of the false evidence in the form of Yancy’s

testimony, which was “uncorrected when it appear[ed]” during defendant’s trial. 1 The

United States Supreme Court has long held that “a State may not knowingly use false

evidence, including false testimony, to obtain a tainted conviction . . . .” 2 The majority

1
Napue v Illinois, 360 US 264, 269; 79 S Ct 1173; 3 L Ed 2d 1217 (1959).
2
Id.
expands the “false evidence” standard by allowing a new trial on the basis of

“substantially misleading” evidence in the form of testimony. 3 This standard is

unworkable for the reasons articulated by Justice ZAHRA: it allows a reviewing court to

“pick[] and choose[] small snippets of testimony” 4 to determine the “ ‘overall

impression’ ” that those small snippets create. 5 I would simply examine whether the

prosecutor knowingly proffered false testimony. By attempting to decipher the “overall

impression” particular snippets of testimony made on the jury, and by potentially

requiring prosecutors to correct testimony that might not actually be false, the majority

creates an ambiguous standard that will be difficult to apply in practice.

Nevertheless, applying the traditional standard to this case, I agree with the

majority that defendant is entitled to a new trial. Yancy’s testimony was, in fact, false.

The Court of Appeals explained that “[o]n direct, cross, and redirect examination, Yancy

repeatedly admitted that he was paid for cooperating with law enforcement but repeatedly

denied that any of the payment pertained to the instant case.” 6 Moreover, the prosecutor

“did not exercise the opportunity to clarify” that Yancy “did receive payment for

3
Although the majority cites United States v Harris for its “substantially misleading”
standard, the full quotation from Harris equates substantially misleading testimony with
testimony that “is untrue.” United States v Harris, 498 F2d 1164, 1169 (CA 3, 1974).
Moreover, the testimony in Harris was, in fact, false, not just “substantially misleading.”
See id. at 1166-1168.
4
Post at 13 (ZAHRA, J., dissenting).
5
Post at 10, quoting ante at 9 (opinion of the Court).
6
People v Smith, unpublished opinion per curiam of the Court of Appeals, issued October
29, 2013 (Docket No. 304935), p 5.

2
information pertaining to the case.” 7 For the reasons stated by the majority, I agree that

this false—not just substantially misleading—testimony was prejudicial and warrants a

new trial.

II. RIGHT TO A SPEEDY TRIAL

Although defendant is entitled to a new trial on the basis of false testimony, I

would not simply remand for a new trial but would also remand for additional factual

findings related to defendant’s speedy-trial claim, and I respectfully dissent from the

majority’s conclusion that defendant is not entitled to any relief on this claim. The Court

of Appeals acknowledged that the circuit court did not correctly apply the Barker v

Wingo 8 balancing test to assess defendant’s speedy-trial claim after his trial was delayed

for 41 months. 9 Specifically, the circuit court did not “follow[] the rule that after a delay

of 18 months, prejudice is presumed,” 10 and the Court of Appeals likewise did not

properly examine the extent to which the circuit court’s analysis was influenced by its

failure to require the prosecution to rebut the presumption of prejudice. I would therefore

reverse the judgment of the Court of Appeals, vacate defendant’s convictions, and

remand this case to a new judge in the Genesee Circuit Court to consider whether the

7
Id.
8
Barker v Wingo, 407 US 514, 530-533; 92 S Ct 2182; 33 L Ed 2d 101 (1972).
9
See Smith, unpub op at 3.
10
People v Grimmett, 388 Mich 590, 606; 202 NW2d 278 (1972), citing People v Den
Uyl, 320 Mich 477; 31 NW2d 699 (1948). Grimmett was overruled in part on other
grounds by People v White, 390 Mich 245, 258; 212 NW2d 222 (1970), which was in
turn overruled by People v Nutt, 469 Mich 565, 596; 677 NW2d 1 (2003).

3
prosecution overcame the presumption of prejudice to defendant’s person and defense. 11

If the presumption was overcome, a new trial is warranted on the basis of the reasoning

provided in the majority opinion. However, if the presumption of prejudice to defendant’s

person and defense was not overcome, a dismissal of all charges is the only remedy for a

speedy-trial violation.

The right to a speedy trial is enshrined in the United States Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed . . . .[12]

The United States Supreme Court has held that the right to a speedy trial serves “to

prevent undue and oppressive incarceration prior to trial, to minimize anxiety and

concern accompanying public accusation and to limit the possibilities that long delay will

impair the ability of an accused to defend himself.” 13

11
People v Collins, 388 Mich 680, 694; 202 NW2d 769 (1972) (“There are two types of
prejudice which a defendant may experience, that is, prejudice to his person and
prejudice to his defense. Prejudice to his person would take the form of oppressive
pretrial incarceration leading to anxiety and concern. Prejudice to his defense might
include key witnesses being unavailable. Impairment of defense is the most serious,
because the inability of a defendant adequately to prepare his case skews the fairness of
the entire system.”) (quotation marks and citation omitted).
12
US Const, Am VI; see also Const 1963, art 1, § 20 (“In every criminal prosecution, the
accused shall have the right to a speedy and public trial . . . .”). This assurance is further
codified in MCL 768.1.
13
United States v Marion, 404 US 307, 320; 92 S Ct 455; 30 L Ed 2d 468 (1971)
(quotation marks and citation omitted).

4
 There is no bright-line rule that indicates a “fixed number of days” that must pass

before a defendant’s right to a speedy trial is violated. 14 Instead, this Court applies the

balancing test established by the United States Supreme Court in Barker v Wingo 15 in

light of this Court’s presumption of prejudice “after a delay of 18 months.” 16 In Barker,

the United States Supreme Court identified as some of the factors to be considered (1) the

length of the delay, (2) the justification for the delay, (3) the defendant’s assertion of his

or her right, and (4) the multifaceted prejudice to the defendant. 17 The Barker test is

case-specific, and none of the four factors is dispositive. 18 In assessing the prejudicial

effect of a delay on a defendant, the United States Supreme Court has observed that

“[t]he time spent in jail,” as opposed to time released on bond, “has a detrimental impact

on the individual.” 19

Defendant waited in prison for 41 months before being brought to trial. The

circuit court’s analysis of these delays inexplicably attributed extensive delays by the

court to defendant. 20 As a result, despite a total delay exceeding 18 months at the time of

14
People v Williams, 475 Mich 245, 261; 716 NW2d 208 (2006).
15
Grimmett, 388 Mich at 605-606 (adopting the Barker test).
16
Id. at 606.
17
Barker, 407 US at 530.
18
Id. at 533.
19
Id. at 532.
20
For example, it was the court that failed to respond to defendant’s motion to quash for
more than seven months and delayed a response to defendant’s first motion for a speedy
trial for almost five months. Both delays were attributed to defendant, presumably
because he was the source of the timely filed motions. Additionally, defendant is

5
defendant’s first motion for a speedy trial, the court found that defendant had not

established prejudice because the total delay by the state was less than 18 months. On

appeal almost 25 months after defendant’s first motion for a speedy trial, the Court of

Appeals recognized that the circuit court had misunderstood the Barker prejudice prong,

observing that “irrespective of whether defendant or the prosecution is more at ‘fault’ for

the 41-month delay here, the simple fact is that the delay was 41 months, and

consequently the burden is on the prosecution to show that there was no prejudice.” 21

However, the Court of Appeals found no error in the circuit court’s independent inquiry

into prejudice because its independent inquiry was not tainted by its misapprehension of

the law. 22

Contrary to the Court of Appeals’ conclusion, the circuit court’s prejudice inquiry

was tainted by its misapprehension of applicable law. In People v Collins, this Court

established that “[a]fter 18 months, the burden shifts to the prosecution to show there was

no injury [to the defendant’s person or defense].” 23 No prosecutorial evidence

allegedly a member of a gang and was indicted along with numerous other codefendants,
also alleged gang members, allegations that rendered defendant’s case so complex,
according to the circuit court and the prosecutor, as to account for a 3½-year delay.
21
Smith, unpub op at 3; see also Doggett v United States, 505 US 647, 652 n 1; 112 S Ct
2686; 120 L Ed 2d 520 (1992) (“Depending on the nature of the charges, the lower courts
have generally found postaccusation delay ‘presumptively prejudicial’ at least as it
approaches one year.”).
22
Smith, unpub op at 4 n 1.
23
Collins, 388 Mich at 695.

6
overcoming the presumption of prejudice appears on the record. 24 By failing to fully

engage in the “difficult and sensitive balancing process” established in Barker, and

therefore failing to impose the proper burden on the prosecution, the circuit court did not

afford defendant the complete protection of his constitutional right to a speedy trial. 25 In

other words, the Court of Appeals’ decision is “irreconcilable with . . . the original

meaning of the Sixth Amendment . . . .” 26 Because the Court of Appeals did not afford

defendant the presumption to which he is entitled, I would reverse the judgment of the

Court of Appeals, vacate defendant’s convictions, and remand this case to a new judge in

the Genesee Circuit Court for the correct application of the relevant law. Final disposition

of defendant’s speedy-trial claim should await the prosecution’s showing that defendant

was not prejudiced by the delay and the circuit court’s correct application of the

remaining Barker factors.

Mary Beth Kelly
Richard H. Bernstein (with
respect to Part II only)

24
See People v Davis, 123 Mich App 553, 561; 332 NW2d 606 (1983) (“After 18
months, the prosecution has the burden of showing that the defendant was not prejudiced
by the delay. The people have not even attempted to show that defendant was not
prejudiced. Consequently, we conclude that the defendant was prejudiced by the 31-
month delay between his arrest and conviction.”) (emphasis added) (citations omitted).
25
Barker, 407 US at 533.
26
Alleyne v United States, 570 US ___, ___ n 5; 133 S Ct 2151, 2163 n 5; 186 L Ed 2d
314 (2013); see also Barker, 407 US at 533 (“[B]ecause we are dealing with a
fundamental right of the accused, this process must be carried out with full recognition
that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.”).

7
 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 148305

FERONDA MONTRE SMITH,

Defendant-Appellant.

ZAHRA, J. (dissenting).
The majority concludes that reversal of defendant’s felony-murder and armed-

robbery convictions is required because the prosecutor failed to meet her duty to correct

“substantially misleading, if not false,” testimony from Mark Yancy regarding the

compensation paid to him by the Federal Bureau of Investigation (FBI) for information

and cooperation. The objection to the prosecutor’s conduct is premised in the notion that

the “State may not knowingly use false evidence, including false testimony, to obtain a

tainted conviction . . . .” Ante at 7 (quotation marks and citation omitted). I agree with

this fundamental proposition, and imagine that no one denies it. But today the majority

has turned this rudimentary constitutional principle into a new requirement that the

prosecutor not just elicit truthful testimony on direct examination, but also elicit complete

testimony, fully disclosing all the facts and circumstances of how that witness came to

testify. Further, the majority imposes an additional duty on the prosecutor to correct a

defense attorney’s mischaracterized questions made during cross-examination of a state’s

witness.
 The record is clear that Yancy admitted being paid by the FBI for his cooperation.

Nonetheless, despite the prosecutor’s having elicited testimony from Yancy that he had

been paid for his cooperation, the majority vacates defendant’s convictions because the

prosecutor did not make it absolutely clear to the jury that the FBI paid Yancy for his

cooperation in the government’s case against defendant. I respectfully dissent because I

fear the majority now holds prosecutors to the unacceptably high and extraordinarily

ambiguous standard of having to correct every instance of mistaken, inaccurate, or

incomplete testimony or risk the possibility that every possible or perceived

contradiction will be rendered material. 1

1
I hope my fear is unfounded, as suggested by the majority in footnote 9 of its opinion.
There, the majority suggests that it is the prosecutor’s exploitation of a “false
impression” during closing argument that justifies reversal. While I take issue with the
majority’s characterization of the prosecutor’s conduct, if this is the majority’s position, it
should have said that and no more.

But even if the rule announced by the majority today is intended as a narrow one,
as emphatically stated by the majority, the opinion remains rife with directives that a
prosecutor must do more than refrain from knowingly arguing to the jury facts known to
be untrue. Instead, the majority imposes on the prosecution the burden to do more than
ensure that testimony elicited on direct examination is truthful; that testimony must now
be truthful and complete. And it also imposes on the prosecution an obligation to correct
misguided testimony that a reviewing court might later declare to be “substantially
misleading,” even when that testimony is the product of defense counsel’s cross-
examination and when, as here, defense counsel is fully aware that the testimony is
misleading, has all the information needed to effectively cross-examine the witness on
this point, and, as a matter of trial strategy, elects to let that testimony stand.

So if, as the majority states, my fear of the breadth of the majority opinion is
overblown, it nevertheless seems to be fully justified and anchored in the various broad
statements scattered throughout its opinion that are not congruent with the majority’s
claim that it announces a narrow rule.

2
 The majority’s claim of error is predicated on the broad proposition “that

deliberate deception of a court and jurors by the presentation of known false evidence is

incompatible with ‘rudimentary demands of justice.’ ” 2 Along these lines, a state may

not knowingly use false evidence, including false testimony, or solicit false evidence or

testimony and allow it to go uncorrected when it appears, to obtain a tainted conviction. 3

This Court has recognized that “[t]he prosecution’s duty to correct the false testimony of

a state witness arises ‘when [the false testimony] appears.’ ” 4

Each of these principles is sound when one understands how they have been

developed and applied. In each case enunciating these principles, neither defense counsel

nor the trial court was aware that the state had agreed to compensate witnesses for their

testimony because the prosecution did not disclose the agreements. This, however, is not

a case in which the prosecutor kept secret the compensation the FBI paid to Yancy for his

cooperation. Rather, the existence and extent of Yancy’s relationship with the

government and the details regarding the compensation paid to Yancy were fully

disclosed and known not only to the prosecutor, but also to defense counsel and the trial

court long before trial commenced. For this reason, I conclude that the evidence the

majority finds to be false or “substantially misleading” is better characterized as

2
Giglio v United States, 405 US 150, 153; 92 S Ct 763; 31 L Ed 2d 104 (1972) (citation
omitted).
3
Ante at 7, citing Napue v Illinois, 360 US 264, 271-272; 79 S Ct 1173; 3 L Ed 2d 1217
(1959).
4
People v Wiese, 425 Mich 448, 455; 389 NW2d 866 (1986), quoting Napue, 360 US at
269.

3
incomplete testimony. Accordingly, I conclude that the prosecutor did not commit an

error by failing to clarify the evidence in the manner espoused by the majority. Similarly,

I do not conclude that the prosecutor’s closing argument was an improper exploitation of

misleading testimony. To the extent that the prosecutor’s actions constituted error, that

error was either extinguished by defendant’s waiver, forfeited for lack of preservation, or

harmless. I would affirm defendant’s convictions.

I. THE SUPREME COURT CASES RELIED ON BY THE MAJORITY ARE
DISTINGUISHABLE

The majority relies principally on Napue v Illinois, 360 US 264, 271-272; 79 S Ct

1173; 3 L Ed 2d 1217 (1959), Giglio v United States, 405 US 150, 154; 92 S Ct 763; 31 L

Ed 2d 104 (1972), and People v Wiese, 425 Mich 448, 453-454; 389 NW2d 866 (1986), to

support the proposition that reversal is required in this case. All these cases involved

witnesses who denied under oath receiving of any remuneration from the government in

exchange for their testimony. It is significant, in my view, that in each case the denial of

remuneration was clearly and patently false and, more importantly, that this falsity was

known only by the prosecution.

Unlike the key prosecution witnesses in Napue, Giglio, and Wiese, Yancy

admitted receiving compensation for his cooperation with the FBI. Moreover, as

distinguished from Napue, Giglio, and Wiese, in the instant case it was not a secret that

Yancy received compensation from the FBI in exchange for his cooperation. In stark

contrast to Napue, Giglio, and Wiese, here there was a pretrial proceeding held for the

4
benefit of defense counsel 5 during which the prosecution presented FBI Special Agent

Dan Harris, who was charged with the responsibility of compensating informants.

Defense counsel participated in this hearing, which was presided over by the trial court.

During the hearing it was fully disclosed that Yancy had received $4,000 for information

related to the Pierson Hood gang and for information that led to the charges against

defendant. 6

The fact that the trial court and defense counsel were made aware before trial of

the consideration given Yancy for his cooperation with the FBI materially distinguishes

this case from Napue, Giglio, and Wiese. This disclosure is fundamental. It is the

5
Specifically, defense counsel made a discovery request seeking

[c]opies of any and all written and/or electronically recorded agreements
for the payment of funds by the FBI and any other police agency to any
cooperating witness in this cause, including, but not limited to, Mark Yancy
and Tarence Lard [a codefendant in this case], and logs and other records
pertaining to such payments. A summary of the content of any oral
agreements is also requested.

As a result of this discovery request, the trial court conducted the evidentiary hearing at
which FBI Special Agent Dan Harris testified.
6
Defendant was on trial for the murder of Larry Pass. The majority minimizes the fact
that the compensation paid to Yancy was not exclusively for information related to the
Pass homicide. In fact, the main focus of the FBI investigation was the Pierson Hood
gang and, as Harris testified, Yancy’s compensation was due in significant part for his
cooperation relating to the gang activity. Importantly, the record reveals that defense
counsel wanted to avoid at all costs any reference to the Pierson Hood gang to ensure that
the jury never learned of defendant’s ties to gang activity. See footnote 17 of this opinon.
Therefore, it is entirely possible that the prosecutor did not develop the full extent of
Yancy’s compensation agreement with the FBI in order to accommodate defense
counsel’s strategy of distancing defendant from the highly publicized Pierson Hood gang.

5
secreting of evidence that is offensive to due process. 7 As noted in Giglio, “When the

‘reliability of a given witness may well be determinative of guilt or innocence,’

7
The majority accuses me of conflating the prosecution’s obligation to disclose
exculpatory information under Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed
2d 215 (1963), with the duty to correct false testimony under Napue, 360 US at 269. The
United Stated Supreme Court has stated, however, that “[t]he rule of Brady . . . arguably
applies in three quite different situations” and that “[e]ach involves the discovery, after
trial of information which had been known to the prosecution but unknown to the
defense.” United States v Agurs, 427 US 97, 103; 96 S Ct 2392; 49 L Ed 2d 342 (1976).
The Supreme Court observed that one of these situations arises when “undisclosed
evidence demonstrates that the prosecution’s case includes perjured testimony and that
the prosecution knew, or should have known, of the perjury.” Id. The Court, citing
Napue and Giglio, then stated that “a conviction obtained by the knowing use of perjured
testimony is fundamentally unfair.” Id. The majority here has created a new rule that
wholly separates the duties under Napue from those under Brady even though the duties
are inextricably linked. The United States Supreme Court has recognized this, stating
that each Brady situation, including those having claims under Napue and Giglio,
involves information known by the prosecution but unknown to defense counsel.

While there may be circumstances in which the prosecution has complied with
Brady yet failed to meet an overriding duty to correct a witness’s perjured testimony, we
ought not let appellate hindsight decouple Brady from Napue in cases in which it is clear
that defense counsel was aware that the testimony was arguably misleading and yet
declined to clarify it for the jury.

The majority attemptes to decouple Brady from Napue by citing three federal
cases: DeMarco v United States, 928 F2d 1074, 1076-1077 (CA 11, 1991), United States
v Sanfilippo, 564 F2d 176, 178-179 (CA 5, 1977), and Jenkins v Artuz, 294 F3d 284, 296
(CA 2, 2002). The majority’s reliance on these cases is seriously misplaced. To begin
with, DeMarco involved actual perjured testimony, while the instant case involves, at
best, “substantially misleading testimony.” Further, a more recent case from the United
States Court of Appeals for the Eleventh Circuit, Routly v Singletary, 33 F3d 1279, 1286
(CA 11, 1994), concluded that when “testimony concerning [a witness’s] understanding
was, at worst, equivocal, [it was] not so misleading as to require corrective action by the
state.” Further, while Routly expressly acknowledged DeMarco, it nonetheless held that
“[t]here is no violation of due process resulting from prosecutorial non-disclosure of false
testimony if defense counsel is aware of it and fails to object.” Id.

Similarly Sanfilippo, was quickly distinguished within its own circuit. See United
States v Antone, 603 F2d 566, 571 (CA 5, 1979). Interestingly, in Beltran v Cockrell, 294

6
nondisclosure of evidence affecting credibility falls within this general rule.” 8 If

disclosure of evidence affecting credibility is timely made, the witness’s credibility

should be left to the adversarial process. Indeed, “[t]he very premise of our adversary

system of criminal justice is that partisan advocacy on both sides of a case will best

promote the ultimate objective that the guilty be convicted and the innocent go free.” 9

Our adversarial system of justice “is premised on the well-tested principle that truth—as

well as fairness—is best discovered by powerful statements on both sides of the

question.” 10 Under our adversarial system, however, each party bears the responsibility

for ensuring that its positions are vigorously and properly advocated. 11 And “[a]lthough

F3d 730, 736-737 (CA 5, 2002), the United States Court of Appeals for the Fifth Circuit
explained that “[t]he Sanfilippo court did not deal with the situation presented here,
where the prosecution used the false testimony consciously allowed by the defense as
part of a legal strategy.” (Emphasis added.) Likewise, defense counsel in this case
chose as part of his trial strategy to ignore Yancy’s testimony and instead represent to the
jury that Yancy and the prosecution had a tacit agreement that Yancy would not be
charged for any crime in exchange for his testimony against defendant.

Finally, the majority’s reliance on Jenkins is misplaced because that court
expressly stated that defense counsel, unlike defense counsel in this case, had not relied
on the witness’s problematic testimony to advance a strategic or tactical omission at trial.
In sum, the cases the majority cites are easily distinguishable. Moreover, the majority
uses these cases for a proposition that has been rejected by more recent cases in those
same circuits. In fact, a majority of federal courts have rejected the rule the majority now
invokes. See footnote 18 of this opinion.
8
Giglio, 405 US at 154, quoting Napue, 360 US at 269 (emphasis added).
9
Herring v New York, 422 US 853, 862; 95 S Ct 2550; 45 L Ed 2d 593 (1975).
10
Penson v Ohio, 488 US 75, 84; 109 S Ct 346; 102 L Ed 2d 300 (1988) (quotation
marks and citations omitted).
11
See Napier v Jacobs, 429 Mich 222, 228-229; 414 NW2d 862 (1987).

7
the judge plays a vital role in the trial of a criminal case, counsel for the parties are also

essential components” because “[t]hey too share in the cause of justice.” 12

In cases in which the defendant claims that the prosecution has left unchecked

questionable testimony from a witness, a reviewing court must assess whether the

evidence was truly false and material to the proceedings or merely inaccurate,

incomplete, or otherwise vague or ambiguous such that the discrepancy is immaterial. 13

As observed by the majority, “it is the effect of a prosecutor’s failure to correct false

testimony that ‘is the crucial inquiry for due process purposes.’ ” 14 If the evidence in

question was disclosed to the defense in a timely manner, this disclosure should weigh in

favor of a finding of immateriality. When all parties to the litigation are aware of the

material facts, the adversarial process will separate the wheat from the chaff, leaving all

material and pertinent information before the jury. 15

12
United States v Harris, 498 F2d 1164, 1170 (CA 3, 1974).
13
See United States v Martin, 59 F3d 767, 770 (CA 8, 1995) (noting that the prosecutor
need not correct every instance of mistaken or inaccurate testimony); Harris, 498 F2d at
1169 (stating the prosecutor need not “play the role of defense counsel, and ferret out
ambiguities in his witness’ responses on cross-examination”).
14
Ante at 7, quoting Smith v Phillips, 455 US 209, 220 n 10; 102 S Ct 940; 71 L Ed 2d 78
(1982).
15
This is not to say that if disclosure of evidence affecting credibility occurred at some
point in the pretrial process the prosecution is forever free from the obligation to correct
patently false testimony offered by a prosecution witness. There will be some instances
in which the false evidence will be so evident and irreconcilable with the truth that action
by the prosecutor to effectuate an immediate and complete correction of the record will
be required. But those instances will be rare, and that is not the case here.

8
 II. THE ALLEGED “SUBSTANTIALLY MISLEADING” EVIDENCE PRESENTED
BY THE PROSECUTOR WAS NOT ONLY DISCLOSED, IT WAS AT MOST
INCOMPLETE AND THEREFORE IMMATERIAL

Examination of the testimony elicited by the prosecutor reveals no patent falsity.

The majority takes issue with two questions 16 from the prosecutor during Yancy’s direct

examination:

[Prosecutor]: Now, you’ve been paid by a federal agency for
cooperation. Is that correct?

[Yancy]: Yes.

* * *

[Prosecutor]: Were you paid for your testimony in this case?

[Yancy]: No.

The majority does not allege that either question and its respective response, taken

individually, constituted the solicitation of false or misleading evidence. This is clearly

because the responses to both questions are true. Yancy was paid for his cooperation, but

he was not paid for his testimony. At most the majority takes issue with the prosecutor’s

use of the phrase “federal agency,” framing that language as clear evidence the

prosecutor purposefully attempted to distance the witness from the defendant and

16
The parties understood that testimony relating to the Pierson Hood gang would not be
admitted absent defense counsel’s opening the door to such testimony. See footnote 17
of this opinion. This explains why the testimony is scant with regard to Yancy’s
compensation. It appears from the record that Yancy’s cooperation in the investigation of
the Pass homicide was limited to an interview in 2006 with Flint police officer Shawn
Ellis. Thereafter, the FBI continued its investigation into the gang-related activity. We
are not informed of the extent of Yancy’s cooperation with regard to the Pierson Hood
investigation, but we know that the FBI did not compensate witnesses until the FBI no
longer needed the witness’s cooperation. Yancy was compensated in the fall of 2008.
This case did not go to trial until the spring of 2011.

9
purposefully obfuscated the fact that Yancy had been compensated for information

provided to the FBI. The majority uses innuendo and isolated phrases such as “federal

agency” to somehow determine that “[t]he overall impression [with regard to Yancy’s

compensation] conveyed was false.”

In reality, any misdirection with regard to the compensation paid by the FBI to

Yancy was created not by the prosecutor but by defense counsel during Yancy’s 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.

On the basis of this response, the majority claims that Yancy denied that he was

compensated for his “cooperation with the defendant’s formal prosecution.” But Yancy

was not asked whether he was compensated for his cooperation in the Pass murder

investigation; he was asked whether he was compensated “with regards to this case.”

Yancy might well have believed that his compensation was not “with regards to this

case,” but was instead for his cooperation in the Pierson Hood gang case. Further, Yancy

had just been asked if he had been paid for his testimony in this case. It would be

reasonable for Yancy to assume that defense counsel was referring to his specific

testimony.

10
 Admittedly, neither the prosecutor nor defense counsel made this clarification.

Instead, the prosecutor again asked Yancy to confirm that the compensation he received

was not for his trial testimony. It is the prosecutor’s failure to clarify the distinction

between compensation for information and compensation for testimony—a confusion

brought on by defense counsel’s cross-examination—that the majority finds offensive.

More specifically, the majority believes that the prosecutor was under a duty to expressly

elicit testimony from Yancy that he was compensated for providing information that

implicated defendant for the murder. This failure, says the majority, rendered the

prosecutor’s examination either false or substantially misleading.

If this were a case in which the prosecution alone was aware that Yancy was

compensated for information that ultimately led to the charges against defendant, I might

well have joined the majority opinion. This is not such a case. Defense counsel was

fully aware of the specifics underlying the compensation the FBI paid Yancy.

Accordingly, defense counsel had in his arsenal all the information necessary to cross-

examine Yancy with regard to the incomplete, albeit truthful, testimony elicited by the

prosecutor. Importantly, defense counsel conducted a vigorous and effective cross-

examination:

[Defense Counsel]: But it was money, right? Real money, right?

[Yancy]: Correct.

[Defense Counsel]: For cooperating, correct?

[Yancy]: Correct.

[Defense Counsel]: With these folks, correct?

[Yancy]: Correct.

11
 [Defense Counsel]: And you got some other benefits, too. Isn’t that
right?

[Yancy]: No.

[Defense Counsel]: Okay. Well, are you in prison or jail now?

[Yancy]: Because I didn’t do nothing.

[Defense Counsel]: That’s not my question.

[Yancy]: No I’m not.

[Defense Counsel]: You’re not in prison or jail now. Okay. You
weren’t charged with murder or weapons possession, correct?

[Yancy]: I didn’t have a weapon, no.

[Defense Counsel]: That’s not my question.

[Yancy]: No.

[Defense Counsel]: Okay. You were not charged with drug charges,
right?

[Yancy]: No.

[Defense Counsel]: I mean you delivered cocaine in the house, right?
You handed it to these guys and then you shared it, so you delivered it or at
the least used it, right? Didn’t get charged with any of that stuff, right?

[Yancy]: No.[17]

17
Defense counsel did not highlight why the FBI paid Yancy. As later revealed during a
discussion outside the presence of the jury, he had good reason to stay away from this
topic:

The Court: The jury is yet to be called for. Are we ready for our
jurors?

[Defense Counsel]: No. There was just one issue that I wanted to get
your opinion on one way or the other before I start my cross-examination
and that is this. Listening to the detective, and it’s no secret there was an
interview of Yancy in ’06, in the summer of ’06 if I understood his
testimony. My client wasn’t arrested until December of ’07. If I ask the

12
 The majority picks and chooses small snippets of testimony to determine that the

prosecutor had evil intent to obfuscate the evidence and confuse the jury. This could not

be further from the truth. The prosecutor made a timely pretrial disclosure of the

evidence affecting Yancy’s credibility. The prosecutor elicited only true testimony from

officer to confirm, I won’t be asking the officer why, but if I ask the officer
to confirm when my client was arrested, am I opening the door to Pierson
Hood? I don’t think I am, but if you think I am, I’m not doing it. So, I
need to know.

[Prosecutor]: Your Honor, the reason that there was a delay was
because of the Pierson Hood investigation. So, if he wants to go there, it
seems to me that it’s only fair that we don’t make Sgt. Ellis look like he
wasn’t doing anything. I mean --

The Court: Yeah, we would have to supply the context. I don’t see it
as being particularly beneficial. We’ve already indicated, I think there’s
been indication that Lard wasn’t arrested until ’07 for an ’05 homicide. It
would certainly suggest -- if it is the delay in an arrest the defendant is
seeking to elicit from the officer, then an explanation for the delay in arrest
would be certainly forthcoming. Frankly, I think it’s much, much more
hazardous for any gain that’s going to be made.

[Defense Counsel]: All right. I’m not going to get into it.

The Court: Yeah. All right.

Defense counsel’s trial strategy was to avoid “opening the door to Pierson Hood”
because, as the trial court noted, doing so would be hazardous to defendant’s case.
Rather, defense counsel sought to impeach Yancy’s claim that he was not paid “with
regards to this case” by suggesting that Yancy had received some tacit benefit from the
prosecution for his testimony and cooperation.

Further, it appears that an integral part of defense counsel’s trial strategy was to
avoid mentioning Yancy’s cooperation in the Pierson Hood gang investigation. This is a
significant fact that the majority ignores. And it is significant precisely because the
majority holds the prosecutor responsible for failing to “correct” evidence that was not
patently false and that the defense introduced for its own purpose.

13
Yancy. Defense counsel had ample opportunity for a vigorous cross-examination with

full knowledge that Yancy had indeed been paid money by the FBI for information that

implicated defendant in the murder of Pass. Given this compelling information, I simply

cannot conclude that any infirmity in the testimony elicited from Yancy constituted false

or substantially misleading evidence sufficient to warrant the reversal of defendant’s

convictions. Instead, I would conclude that the testimony under review was at most

incomplete and not material to the greater scheme of this criminal trial.

III. ANY ALLEGED ERROR IS BARRED BY WAIVER

While defense counsel conducted a vigorous cross-examination of Yancy, counsel

chose not to clarify Yancy’s testimony with regard to compensation from the FBI. I

conclude that explicit disclosure of evidence affecting Yancy’s credibility, coupled with

defense counsel’s subsequent failure to raise the specific issue at trial, constituted waiver

of the claim at issue in this case. 18 Significantly, when Yancy denied on cross-

18
While the majority does not share the view that a Napue error can be waived because
counsel could have addressed the issue on cross-examination, I note that the majority of
the federal courts of appeals have expressed views consistent with this approach: United
States v Iverson, 208 US App DC 364, 366; 648 F2d 737 (1981) (“[W]e hold that, absent
unusual circumstances, the right of the defendant to disclosure by the prosecutor is
deemed waived if defense counsel with actual knowledge of the plea agreement or
sentencing status information chooses not to present such information to the jury.”);
Green v United States, 256 F2d 483, 484 (CA 1, 1958) (“But [the defendant] cannot have
it both ways. He cannot withhold the evidence [that an assistant United States attorney
persuaded a witness to commit perjury against the defendant by promising the witness a
light sentence and that he would be spared deportation], gambling on an acquittal without
it, and then later, after the gamble fails, present such withheld evidence in a subsequent
proceeding . . . .”); United States v Branch, 261 F2d 530, 533 (CA 2, 1958) (concluding
that when a defendant makes a deliberate choice not to call a witness to testify who
claimed to have proof of alleged perjury by a key prosecution witness, “he cannot now by
way of motion under [28 USC] 2255 assert a defense . . . which was available but not

14
examination that he was compensated “with regards to this case,” defense counsel did not

object, ask for a mistrial, seek a conference outside the presence of the jury, or otherwise

presented at the trial”); United States ex rel Regina v LaVallee, 504 F2d 580, 583 (CA 2,
1974) (concluding that when the defense is aware that the prosecution might have offered
a promise of leniency in exchange for a witness’s testimony but the witness denies it, the
defense has an obligation to call available witnesses to prove the existence of the promise
because “[a] defendant may not obtain a new trial on the basis of evidence which he
could have discovered by reasonable diligence”); Harris, 498 F2d at 1169-1170 (“[I]f
appellant’s counsel was of the opinion that the errors were prejudicial it was his
obligation to interpose a timely objection and seek corrective action by the Court. . . . He
should have taken this course when he learned of the errors, but failed to do so. A
defendant may not sit idly by in the face of obvious error and later take advantage of a
situation which by his inaction he has helped to create.”) (emphasis omitted) (quotation
marks and citations omitted) (alteration in original); United States v Meinster, 619 F2d
1041, 1045 (CA 4, 1980) (concluding that because the defendants had knowledge of a
“deal” between a witness and the prosecution but took no action on the matter during trial
apart from asking the prosecutor if the deal existed, the defendants waived their objection
to the witness’s testimony that he had received no offer of leniency in exchange for his
cooperation); Beltran, 294 F3d at 736 (concluding that the defendant waived his right to
object to false testimony because “[d]efense counsel was aware that the testimony was
misleading but consciously decided not to clarify for the jury” as “part of a deliberate
defense strategy”); Decker, 543 F2d at 1105 (“[W]e hold that the Government fulfilled its
duty of disclosure by supplying appellants with its recollection of the true circumstances
of the negotiations with the witnesses at a time when recall and further exploration of
these matters was still possible.”); Decker v United States, 378 F2d 245, 251 (CA 6,
1967) (“We find no decision which fits the case at bar, but it has been held that deliberate
toleration of the commission of perjury cannot be later employed to gain judicial relief
for one who connived in the use of the perjury.”); Evans v United States, 408 F2d 369,
370 (CA 7, 1969) (“When a criminal defendant, during his trial, has reason to believe that
perjured testimony was employed by the prosecution, he must impeach the testimony at
the trial, and ‘cannot have it both ways. He cannot withhold the evidence, gambling on
an acquittal without it, and then later, after the gamble fails, present such withheld
evidence in a subsequent proceeding . . . .’ ”) (citation omitted); Ross v Heyne, 638 F2d
979, 986 (CA 7, 1980); Sanassarian v California, 439 F2d 703, 703-704 (CA 9, 1971)
(citation omitted); Routly, 33 F3d at 1286 (“There is no violation of due process resulting
from prosecutorial non-disclosure of false testimony if defense counsel is aware of it and
fails to object.”).

15
ask the court to strike the allegedly false testimony. 19 Presumably defense counsel

viewed Yancy’s testimony as incomplete, vague, and perhaps even evasive, but deemed

this testimony best addressed through vigorous cross-examination. And defense counsel

in fact conducted a vigorous cross-examination of Yancy, but instead of clarifying

Yancy’s testimony with regard to compensation from the FBI, he sought to highlight that

Yancy was not paid “with regards to this case” and impeached Yancy by suggesting that

Yancy had received not only “[r]eal money” for cooperating with the FBI, but some

additional tacit benefit from the prosecution for his testimony and cooperation. An issue

is waived if the defendant intentionally abandons a known right. 20 “[W]aiver may be

effected by action of counsel.” 21 Because defense counsel had full knowledge of

19
As mentioned, the trial court also presided over and actively participated in the October
6, 2010 hearing in which Yancy’s agreement with the FBI was disclosed. Like defense
counsel, the court was not surprised by and did not in any way express concern about or
take exception to the testimony from Yancy that the majority today declares to be
“substantially misleading, if not false.” That neither defense counsel nor the experienced
and knowledgeable trial judge (both officers of the court under an ethical obligation to
correct false testimony) took exception to this testimony weighs strongly in support of
my conclusion that the testimony and evidence in question are not material in the greater
scheme of this criminal trial.
20
People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).
21
Id. at 218, citing New York v Hill, 528 US 110, 114; 120 S Ct 659; 145 L Ed 2d 560
(2000). Hill further explained that

[a]s to many decisions pertaining to the conduct of the trial, the defendant is
“deemed bound by the acts of his lawyer-agent and is considered to have
‘notice of all facts, notice of which can be charged upon the attorney.’ ”
Thus, decisions by counsel are generally given effect as to what arguments
to pursue, what evidentiary objections to raise, and what agreements to
conclude regarding the admission of evidence. Absent a demonstration of
ineffectiveness, counsel’s word on such mtters is the last. [Hill, 528 US at
115 (citations omitted).]

16
Yancy’s cooperation and compensation and nonetheless chose to impeach Yancy at trial

without mentioning the extent of Yancy’s cooperation with the FBI, defendant has

waived this issue on appeal. 22

IV. THE UNPRESERVED ALLEGED ERROR IS FORFEITED

As discussed, defense counsel and the trial court were fully aware that the FBI had

compensated Yancy for his cooperation and information implicating defendant in the

murder of Pass. Because there was no objection when Yancy denied being compensated

“with regards to this case,” 23 defendant’s constitutional claim is unpreserved and subject

22
See Harris, 498 F2d at 1169-1170. Harris involved a claim of false testimony arising
from the failure to disclose a witness’s deal with the prosecution. After the witness was
excused but before the trial concluded, the prosecutor informed the defendant and the
court of the witness’s remuneration from the prosecution. Accordingly, it was evident
that the witness presented false testimony. The defendant did nothing with this
information and on appeal claimed that the prosecution had breached the duty to correct
false testimony. The United States Court of Appeals for the Third Circuit concluded that
the defendant had waived the issue by failing to take any action after being informed of
the evidence affecting the witness’s credibility. Id. at 1170. The majority here asserts
that because the prosecutor in Harris disclosed to the defendant the full extent and nature
of its remuneration with the witness, the prosecution ultimately complied with its Napue
obligation. The Harris disclosure came in the midst of the trial and after the critical
witness was excused. I respectfully submit that if disclosure of evidence affecting a
witness’s credibility is timely when provided in the midst of trial yet after the critical
witness has been excused, there should be no question but that the prosecution satisfied
its Napue obligation here when it disclosed to defense counsel and the trial court the full
and complete extent of Yancy’s compensation from the FBI at the 2010 hearing during
which Special Agent Harris testified.
23
Again, in each United States Supreme Court case the majority relies on, defense
counsel and the trial court were entirely unaware of any of the details relating to the
state’s agreements to compensate witnesses for their testimony. Thus, defense counsel in
those cases obviously could not have objected. In this case, however, defense counsel
was aware and readily could have objected to Yancy’s testimony. Defense counsel’s
knowledge invokes an important principle of appellate review. That is, “[t]his Court
disfavors consideration of unpreserved claims of error.” People v Carines, 460 Mich

17
to forfeiture.24 “To avoid forfeiture under the plain error rule, three requirements must be

met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the

plain error affected substantial rights.” 25 “The third requirement generally requires a

showing of prejudice, i.e., that the error affected the outcome of the lower court

proceedings.” 26 The defendant has the burden of establishing each of these three

elements. 27 In this case, defendant has failed to show that any perceived error affected

750, 761; 597 NW2d 130 (1999). “Michigan has long recognized the importance of
preserving issues for appellate review.” Id. at 762. Moreover, we recognize that “[t]rial
is ‘by far the best time to address a defendant’s constitutional and nonconstitutional
rights.’ ” Id., quoting People v Grant, 445 Mich 535, 551; 520 NW2d 123 (1994)
(emphasis omitted). For these reasons I seriously question the propriety of the majority’s
chosen standard of review, which only requires a defendant to establish a “ ‘reasonable
likelihood’ that the [allegedly false or substantially misleading testimony] affected the
judgment of the jury,” quoting Napue, 360 US at 271. In my view, this standard only
applies when the issue could not have been preserved at trial. See, e.g., Robinson v
Arvonio, 27 F3d 877, 886 (CA 3, 1994) (“[W]hen it became clear that the prosecutor had
not corrected the perjured testimony, the defense attorney could have alerted the judge
and sought a remedy that would have eliminated any possibility of prejudice to his
client . . . . Instead, the defense attorney sought to counter the misleading impression
through cross-examination and closing argument. Although we agree with [the
defendant] that his attorney did not waive the error by failing to call it to the attention of
the court, an error which the defense attorney could have corrected at trial is not likely
‘to infect the integrity of the proceeding . . . .’ ”), vacated 513 US 1186 (1995) (citation
omitted) (emphasis added).
24
Carines, 460 Mich at 763; see also People v Vaughn, 491 Mich 642, 663-664; 821
NW2d 288 (2012).
25
Carines, 460 Mich at 763, citing United States v Olano, 507 US 725, 731-734; 113 S
Ct 1770; 123 L Ed 2d 508 (1993).
26
Carines, 460 Mich at 763, citing Olano, 507 US at 734.
27
Carines, 460 Mich at 763. Further, “[t]he reviewing court should reverse only when
the defendant is actually innocent or the error seriously affected the fairness, integrity, or
public reputation of judicial proceedings.” Id. at 774. The majority claims that when

18
the outcome of the lower-court proceedings. In affirming defendant’s convictions, the

Court of Appeals relied heavily on the “fairly dreadful state of Yancy’s credibility” 28 to

conclude that any error was harmless. The majority believes that the panel’s reliance on

Yancy’s dreadful credibility was misplaced because “the impossibility of raising Yancy’s

credibility from an already ‘dreadful state’ ” was not the critical issue. Rather, the

majority frames the issue as “what effect would likely have resulted if the jury had

understood that Yancy was compensated for his information against the defendant.” In

this regard, the majority concludes that reversal is required because “the ‘dreadful state’

of Yancy’s credibility would have been even more dreadful had the jury learned that he

was paid for his information against the defendant.”

Of course the jury was certainly entitled to question Yancy’s credibility. He

admitted that he was a regular drug user, was in a dispute with defendant over money,

took Pass’s drugs (though he gave them to Lard), and left the victim “gurgling off his

blood” on the floor (though he testified, “What could I do?” and “I thought I was next”),

and left town for a year. Even the prosecutor wryly admitted, “[O]ur witnesses aren’t

“the prosecutor deliberately exploit[s] misleading evidence before the jury, [it] clearly
affects ‘the fairness, integrity or public reputation of judicial proceedings.’ ” While I take
issue with the majority’s characterization of the prosecutor’s conduct, I also note that the
rule of law sanctioned by the majority in this case will give similarly situated defendants
a free bite at the apple in future cases. Specifically, defense counsel aware of false
testimony can ignore that testimony and roll the dice with a jury, knowing full well that if
an acquittal is not obtained, the testimony will afford defendant a reversal on appeal.
This rule of law seriously affects “the fairness, integrity, or public reputation of judicial
proceedings.”
28
People v Smith, unpublished opinion per curiam opinion of the Court of Appeals,
issued October 29, 2013 (Docket No. 304935), p 5.

19
from the Mormon Tabernacle choir . . . .” With that said, “ ‘[i]t is the defendant rather

than the Government who bears the burden of persuasion with respect to prejudice.’ ” 29

But here, defendant here has only shown a possibility that Yancy’s credibility could be

further diminished. In other words, it is entirely speculative that this possibility would

have affected the outcome in this case. It is just as possible that the jury would have

ignored additional impeachment given the then-existing “dreadful state of Yancy’s

credibility.” Simply put, the burden is on defendant, and defendant failed to show that

any perceived error actually, instead of possibly, affected the outcome of the lower-court

proceedings. Accordingly, defendant has not satisfied his burden of establishing plain

error that affected his substantial rights and therefore has forfeited this issue on appeal.

V. THE ALLEGED ERROR WAS HARMLESS

MCL 769.26 provides:

No judgment or verdict shall be set aside or reversed or a new trial
be granted by any court of this state in any criminal case, on the ground of
misdirection of the jury, or the improper admission or rejection of evidence,
or for error as to any matter of pleading or procedure, unless in the opinion
of the court, after an examination of the entire cause, it shall affirmatively
appear that the error complained of has resulted in a miscarriage of justice.

This statute essentially embodies Michigan’s harmless-error rule. 30 “ ‘Simply stated, . . .

reversal is only required if the error was prejudicial. That inquiry focuses on the nature

29
Carines, 460 Mich at 763, quoting Olano, 507 US at 734.
30
People v Lukity, 460 Mich 484, 491; 596 NW2d 607 (1999).

20
of the error and assesses its effect in light of the weight and strength of the untainted

evidence.’ ” 31

According to the majority, the alleged error prejudiced defendant because the

prosecutor bolstered Yancy’s credibility by arguing that he had only been paid for his

cooperation in other cases:

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.

No objection was made to the prosecutor’s closing argument. Further, this

argument is consistent with the record evidence from Flint police officer Shawn Ellis,

who testified without objection that Yancy was not paid for his testimony and had

“cooperated on other investigations with task force officers.” In any event, reviewing

courts should not flyspeck trial proceedings with the benefit of 20/20 appellate hindsight.

“[T]he Constitution entitles a criminal defendant to a fair trial, not a perfect one.” 32

Instead, our law generally demands that trial results not be overturned unless a

miscarriage of justice has occurred. 33 This was a 7-day jury trial featuring more than 20

witnesses and numerous exhibits. It is often difficult for seasoned practitioners and

judges to keep pace with trial proceedings. It is substantially more difficult for the jury to

31
Id. at 492, quoting People v Mateo, 453 Mich 203, 215; 551 NW2d 891 (1996).
32
See Delaware v Van Arsdall, 475 US 673, 681; 106 S Ct 1431; 89 L Ed 2d 674 (1986).
33
See, e.g., MCL 769.26.

21
do so. This one fleeting, arguably inaccurate statement to which no objection was made

does not detract from the actual evidence presented at trial and the prosecutor’s truthful

statement that Yancy “did not get consideration on this case for testifying.” Moreover,

the prosecutor’s statement was responsive to defense counsel’s line of questioning that

suggested that Yancy had been compensated for his testimony against defendant. And

not only did defense counsel suggest that Yancy had been compensated for his testimony

against defendant, but he later stated in closing argument, without any factual basis, that

Yancy “lied to you about his plea, whether he pled.” Notwithstanding this assertion by

defense counsel, there is absolutely no evidence that Yancy received any deal from the

prosecution in exchange for his testimony in this case.

Further, the majority exaggerates the prejudicial effect of the alleged error. The

extent to which Yancy’s credibility was bolstered by argument that he had only been paid

by the FBI for his cooperation in other cases is, at best, marginal. Additionally, the

alleged error was clearly precipitated by the prosecutor’s willingness to accommodate

defense counsel’s trial strategy that avoided “opening the door to Pierson Hood” because,

as the trial court noted, doing so would be hazardous. 34 Both the prosecutor and defense

counsel fastidiously avoided mention of the Pierson Hood gang during trial. Rather than

delve into specific prejudicial information that Yancy had provided to the FBI, defense

34
In 2007, the Flint Safe Streets Task Force, which included members of local and
federal law enforcement, arrested more than 30 people related to the Pierson Hood gang,
which was a criminal enterprise. Two of the people arrested were defendant and Lard.
However, the circuit court quashed the charge against defendant of conducting a criminal
enterprise, and eventually the case proceeded to trial only in respect to the murder of
Pass.

22
counsel sought to challenge Yancy on his claim that he was not paid “with regards to this

case” and impeached Yancy by suggesting not only that Yancy had received cash from

the FBI for cooperation, but that he had also received some tacit benefit from the

prosecution for his testimony and cooperation.

Finally, the majority does not address whether even if Yancy’s testimony had been

struck from the record, the prosecution nonetheless presented sufficient independent

evidence at trial to establish beyond a reasonable doubt that defendant murdered Pass.

Even if evidence is improperly admitted to bolster a witness’s character for truthfulness,

reversal is not required under MCL 769.26 if there exists other cumulative and

independent evidence to support the conviction. 35 The majority apparently assumes that

the jury simply did not believe the other key witness for the prosecution, but “[t]he jury is

the sole judge of the facts; its role includes listening to testimony, weighing evidence, and

making credibility determinations.” 36 Contrary to the assertions of the majority, Lard’s

testimony was largely consistent with Yancy’s testimony with regard to the murder of

Pass. It would be very difficult to conclude that the jury convicted defendant on the basis

of Yancy’s testimony while rejecting Lard’s testimony.

Specifically, Yancy and Lard consistently testified that Lard brought defendant to

Pass’s home, that they used a mutual acquaintance’s name to validate their intent to

purchase cocaine, and that Pass let them inside. Inside the house, defendant and Pass

35
See Lukity, 460 Mich at 488-489, 496-497 (stating that the error was harmless when
the prosecutor improperly bolstered the victim’s credibility because an untainted witness
testified about the defendant’s inculpatory apology).
36
People v Mardlin, 487 Mich 609, 626; 790 NW2d 607 (2010).

23
discussed purchasing cocaine in the kitchen, and both Yancy and Lard saw Pass enter the

bathroom, presumably to retrieve cocaine. After Pass returned to the kitchen, both Yancy

and Lard heard multiple gunshots coming from the kitchen area, where only defendant

and Pass were present. Lard testified that neither he nor Yancy shot Pass, but that

defendant did so. Lard’s testimony alone provided a rational basis to establish that

defendant shot and killed Pass. In sum, having examined the entire cause, I cannot

conclude that the error alleged by defendant affirmatively appears to have resulted in a

miscarriage of justice. I would affirm.

Brian K. Zahra

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