People v. White

Kavanagh, J.

John L. White, Jr., was convicted on his plea of guilty of the offenses of attempted delivery of heroin and of perjury. MCL 335.341(1)(a); MSA 18.1070(41)(1)(a); MCL 750.92; MSA 28.287; MCL 750.422; MSA 28.664.

On appeal, the Court of Appeals in an unpublished opinion affirmed the defendant’s conviction *377of attempted delivery of heroin and reversed his perjury conviction, relying on People v Longuemire, 87 Mich App 395; 275 NW2d 12 (1978). The people assert that the Court of Appeals erred in setting aside the defendant’s conviction of perjury. On cross-appeal, the defendant asserts that the Court of Appeals erred in affirming his conviction of attempted delivery of heroin.

We reverse the decision of the Court of Appeals and reinstate the conviction of perjury. We reverse the conviction of attempted delivery of heroin.

A

White was an airman stationed at Wurtsmith Air Force Base near Oscoda, nearly 200 miles north of Detroit. Curtis Chambers, an undercover narcotics officer, testified at preliminary examination that he approached White on January 5, 1977, and asked to purchase narcotics from him. White stated that it wasn’t very profitable for him to make the trip downstate to make a single purchase but "possibly in a couple of days” he would have received other requests for narcotics and would be able to make the trip. Chambers gave White $70 to purchase narcotics for him and arranged to meet White three days later.

When White missed the rendezvous, Chambers sought him out. White said he had not yet made the trip but might go down the following week.

On January 16, 1977, Chambers again contacted White, who said that he had not yet purchased the narcotics because he did not have a ride. Chambers offered to drive White down, and the two agreed to make the trip on January 19.

On January 19, Chambers and another undercover officer drove White from Oscoda to Detroit, *378gave him an additional $130 to purchase narcotics, waited outside an apartment building while he made the purchase, and drove him back to Oscoda, where he transferred the narcotics to them. The officers dropped White off at his residence, contacted their backup crew, and returned to arrest White a few minutes later.

White was charged with delivery of heroin. After Chambers and another officer testified at his preliminary examination, he took the stand. On direct examination he admitted knowing Chambers by an alias but denied having "any business dealings” with him on the relevant dates or riding with him from Oscoda to Detroit and back. On cross-examination he expressly denied taking money from Chambers or delivering heroin to him.

White was subsequently charged with committing perjury at his preliminary examination and ultimately entered guilty pleas to the perjury charge and a reduced charge of attempted delivery of heroin. At the plea proceeding, after White recounted the events leading to the delivery of heroin charge, the following colloquy ensued:

"The Court: [N]ow, with reference to false swearing, as I understand it, you made two different versions of the — of this incident?
"The Defendant: No, sir, only one. My statement was made falsely.
"The Court: I see, and what was that?
"The Defendant: Denial of any participation in the drug transactions.”

We granted leave in this case to speak to the following issues:

(A) Whether a defendant who allegedly lies about the ultimate fact at issue during proceedings *379on the criminal charge against him may subsequently be prosecuted for and convicted of perjury.

(B) Whether the trial court failed to elicit a sufficient factual basis for the defendant’s perjury plea.

Whenever a charge of perjury arises out of a defendant’s testimony during his prosecution for another crime, we should be alert to all the dangers which may be involved in the charge.

On the one hand we should be mindful of the menace to our trial system which a perjurious witness imports. It is difficult to imagine a more potent threat to the adjudicative process than perjury. Nothing should impede legitimate efforts to punish it.

On the other hand, the trial process itself is the primary safeguard against inaccurate testimony. Cross-examination, rebuttal and impeachment are elements of the trial process intended to expose untruthful testimony. It is the function of the trier of fact to assess credibility as well as to determine the facts.

An overzealous prosecutor might bring a subsequent charge of perjury simply to ask a second jury or judge to determine fact and credibility issues already decided in the defendant’s favor by the first fact finder or in an attempt to ask a second judge to augment a sentence the prosecutor found disappointing. The very chance of a spiteful perjury prosecution might dissuade a truthful but timid defendant from testifying at all.

In this case, however, no such evils are present. White elected, atypically, to testify at his preliminary examination on a drug charge. There was no prior determination that White’s story was the truthful version and, there having been no trial, the prosecutor cannot be said to be seeking a more *380satisfactory result by presenting the same issues to a second jury or judge.

With this in mind we consider the errors asserted.

B

The Court of Appeals, in People v Longuemire, supra, p 398, held that adjudicative facts can form the basis for a perjury charge, but ultimate facts cannot, and provided a definition for distinguishing the two.1 In the instant case, the Court of Appeals applied the rule of Longuemire and reversed the defendant’s conviction of perjury, concluding that the defendant lied about ultimate facts.

When we granted leave to appeal, we directed the parties to brief the issues as stated above. This was unfortunate, for as the people properly point out, the error assertedly made by the Court of Appeals did not implicate the correctness of the Longuemire rationale, but rather its application.

We need not here decide whether Longuemire is correct in its holding that ultimate facts cannot form the basis of a perjury charge or in its standard for distinguishing ultimate from adjudicative facts. A review of the record shows White lied about what were clearly adjudicative facts as well as about the assertedly ultimate fact of participation in the drug transaction. He denied knowing *381Officer Chambers, denied having any business dealings with him, and denied riding in an automobile with him from Oscoda to Detroit and back. These are material adjudicative facts, lies as to which will support a perjury charge and conviction.

White argues that no perjury charge should be based on an accused’s perjurious statements even as to adjudicative facts. This is not because a defendant has a right to testify untruthfully but because the threat of liberal perjury prosecutions and potential prosecutorial abuse might coerce accuseds into silence, and other safeguards, such as cross-examination, impeachment and rebuttal, are generally sufficient to insure that a defendant does not mislead the jury with his testimony. Bronston v United States, 409 US 352; 93 S Ct 595; 34 L Ed 2d 568 (1973).

Whatever merit this argument might have when applied to the facts of a different case, it is of no force here because White testified falsely not at trial but rather at a preliminary examination where the focus is on the prosecution’s evidence. The defendant has less interest in testifying at the preliminary examination and the prosecutor is substantially less likely to be prepared to effectively test the accused’s credibility at the preliminary examination than at trial should the accused unexpectedly testify.

C

In Guilty Plea Cases, 395 Mich 96, 128-132; 235 NW2d 132 (1975), and People v Haack, 396 Mich 367, 376-377; 240 NW2d 704 (1976), our Court considered the question of factual bases for guilty pleas. We said that "on appellate review the standard to be applied in determining the adequacy of *382the factual basis is whether the trier of fact could properly convict on the facts as stated by the defendant”.

The defendant asserts that the only factual basis elicited by the court during his guilty plea to perjury was that he had falsely denied any participation in drug transactions. The defendant contends that, because this testimony concerned an ultimate fact, there were no facts upon which the trier of fact could properly convict.

The defendant pled guilty of attempted delivery of heroin and perjury in the same proceeding. The defendant first testified that he took money from Officer Chambers, rode to Detroit with Officers Chambers and McCarty, picked up heroin from a heroin dealer in Detroit, and gave the heroin to the officers when they returned to Oscoda. The defendant then stated that his prior statement, denying any participation in the drug transactions, was made falsely.

Even if the defendant is correct that his statement that he had falsely "deni[ed] * * * any participation in the drug transactions” was an admission as to an ultimate fact only, the proper remedy under Guilty Plea Cases, supra, p 129, would be a remand to give the prosecutor an opportunity to adduce facts supporting the plea. Since the perjury occurred at the preliminary examination on the delivery of heroin charge, this evidence would consist entirely of the transcript of that preliminary examination, which is part of the record on appeal. The defendant has not challenged the accuracy of the transcript. We see no reason for a pro forma remand so that the prosecutor can summon a stenographer to certify the accuracy of a transcript the verity of which has been so conceded.*3832 The transcript, taken together with the defendant’s conclusory statement at the time his guilty plea to the perjury charge was offered that he had falsely "deni[ed] * * * any participation in the drug transactions”, adequately establishes a factual basis for his plea.

D

The defendant raises many other issues, several of which merit only brief discussion. He seeks to have his perjury conviction vacated on the grounds of double jeopardy and collateral estoppel.3 The perjury charge was based on statements made by the defendant during his preliminary examination for the offense of delivery of heroin.

Double jeopardy bars reprosecution for the same offense. US Const, Am V; Const 1963, art 1, § 15. Perjury committed at a judicial proceeding is not the same offense as the substantive offense charged in that proceeding. United States v Williams, 341 US 58, 61; 71 S Ct 595; 95 L Ed 747 (1951); see, also, People v Albers, 137 Mich 678, 681-684; 100 NW 908 (1904). Therefore, the constitutional protection against double jeopardy does not ordinarily bar the defendant’s prosecution for and conviction of perjury.

Similarly, the defendant’s prosecution for and conviction of perjury is not barred by the doctrine of collateral estoppel. In order to apply collateral estoppel, an issue of ultimate fact must have once been determined by a valid and final judgment in *384a previous litigation between the same parties. Ashe v Swenson, 397 US 436, 443; 90 S Ct 1189; 25 L Ed 2d 469 (1970).

The purpose of a preliminary examination is to determine whether a felony was committed and whether probable cause exists to believe that the defendant committed it. We need not decide whether a finding respecting the defendant’s credibility rendered at a preliminary examination could ever be accorded collateral estoppel effect, for in the instant case the defendant was bound over for trial.

The defendant contends that the information for perjury was defective because it failed to give him notice of the specific statements alleged to be false or to assert the materiality of the false statements. The information was sufficient under MCL 767.73; MSA 28.1013,4 which does not require that the specific statements alleged to be false be set forth. If the defendant was uncertain as to the exact statements alleged to be false, his remedy was to have requested a bill of particulars under MCL 767.44; MSA 28.984.

The information and addendum comply with the materiality requirements of People v Cash.5 The addendum specifically stated that the defendant “stated falsely a material fact”.

*385Citing Bronston v United States, supra, as authority, the defendant argues that because his statements were literally correct, they did not constitute perjury. At the defendant’s first preliminary examination the following colloquy occurred:

"Q. Are you acquainted with a Curtis Chambers who you saw testify on the stand just a few minutes before this?
"A. No, sir, I know him by an alias.
”Q. What is his alias?
"A. His alias was Ken.
”Q. Did you have any business dealings with Mr. Chambers on or about January 5, 1977?
"A. No, sir.
”Q. Did you have any business dealings with him on or about the 16th of January, 1977?
"A. No, sir.
”Q. Or the 19th of January, 1977?
"A. No, sir.
”Q. He has testified you rode with him in an automobile from the Oscoda area to Detroit and back to Oscoda?
"A. No, sir.”

The defendant’s theory is that his denial of associating with Curtis Chambers was literally correct because he did not associate with Officer Chambers in his capacity as a police officer; he knew him only by an alias. This argument has no merit. The defendant denied having any business dealings with the witness after admitting he knew him by an alias. The officer’s contrary testimony could support a verdict of perjury.

The defendant contends that his guilty plea to perjury was unknowing and involuntary because he was not informed of the requisite element of intent. The court complied with GCR 1963, 785.7(1)(a) which requires that the court tell the *386defendant the name of the offense to which he is pleading. The court is not required to explain the elements of the offense. See Guilty Plea Cases, supra, p 116.

At the plea taking, the judge informed the defendant that he had a right to confront witnesses against him. The judge read a list of specifically named witnesses against him. The defendant alleges error because the judge did not include the names of the judge, prosecuting attorney and defense attorney who were present during the alleged perjurious testimony.

The plea-taking judge adequately complied with GCR 1963, 785.7(1)(g), subds (v) and (vi), which requires that the court inform the defendant that he is giving up the rights he would have at trial to have witnesses against him appear and the right to question witnesses against him. See Guilty Plea Cases, supra, pp 119-125.

The district judge who conducted the preliminary examination on the charge of perjury was the same judge who conducted the defendant’s preliminary examination on the charge of delivery of heroin. The defendant alleges that it was reversible error for the judge not to have disqualified himself because of bias. Merely proving that a judge conducted a prior proceeding against the same defendant does not amount to proof of bias for purposes of disqualification under GCR 1963, 912.2.

E

The defendant asserts that his conviction of attempted delivery of heroin should be vacated because of entrapment. The people assert that the defendant has waived this defense by his plea of guilty. We disagree.

*387We put the claim of entrapment in proper perspective in People v D’Angelo, 401 Mich 167, 179; 257 NW2d 655 (1977), when we said:

"When an accused claims entrapment he is asserting, in essence, entitlement to the benefit of a judicial policy that his claim, if true, is a bar to the prosecution of the case. His claim does not involve an assessment of guilt or innocence and, in fact, is irrelevant to it.”

A claim of entrapment is distinct from other defenses such as insanity, self-defense, and lack of specific intent, which involve an assessment of guilt or innocence. Id. A claim of entrapment does not involve an assessment of guilt or innocence, but rather expresses a policy that there should be no prosecution at all. In this respect, it is like a jurisdictional defect which is not waived by a plea of guilty. See People v Alvin Johnson, 396 Mich 424, 439-445; 240 NW2d 729 (1976).

Turning to the merits of the asserted claim, we hold that the trial judge’s finding that the defendant was not entrapped is clearly erroneous.

Michigan has been at the forefront in protecting persons from being convicted of a crime which was instigated, induced or manufactured by a government agent. Over a hundred years ago, Justices Marston and Campbell deplored such governmental action. Justice Marston forcefully wrote:

"The course pursued by the officers in this case was utterly indefensible. Where a person contemplating the commission of an offense approaches an officer of the law, and asks his assistance, it would seem to be the duty of the latter, according to the plainest principles of duty and justice, to decline to render such assistance and to take such steps as would be likely to prevent the *388commission of the offense, and tend to the elevation and improvement of the would-be criminal, rather than to his farther debasement.” Saunders v People, 38 Mich 218, 221-222 (1878).

People v Longuemire, 87 Mich App 395; 275 NW2d 12 (1978), defined ultimate facts as those concerning "the legal definitions and effects ascribed to the basic facts or combination of basic facts as found”. "Ultimate facts encompass statements as to noncommission of the crime charged or a legal element of the crime.” Examples given were "I didn’t bribe Mr. X” or "I didn’t break into that house”.

Adjudicative facts were defined as facts pertaining to "who did what, where, when, how and with what motive or intent”. The examples given were "I didn’t give Mr. X $50,000” or "I didn’t force the door open”.

We do not wish to be understood as authorizing the use of . preliminary examination transcripts by a reviewing court to establish a factual basis for a guilty plea where the crime did not consist solely of the testimony at the preliminary examination.

The defendant’s guilty plea did not waive his right to assert a double jeopardy defense. People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976).

"An indictment for perjury or for subornation of, solicitation, or conspiracy to commit perjury, is sufficient which indicates the offense for which the accused is prosecuted, the nature of the controversy in respect of which the offense was committed and before what court or officer the oath was taken or was to have been taken, without setting forth any part of the records or proceedings with which the oath was connected, and without stating the commission or authority of the court or other authority before whom the perjury was committed or was to have been committed or the form of the oath or affirmation or the manner of administering the same.” MCL 767.73; MSA 28.1013.

People v Cash, 388 Mich 153, 159; 200 NW2d 83 (1972), restates the rule in Michigan that "materiality of the false swearing to the matter in question must be alleged or it must clearly appear so from the statements alleged to be false”.