People v. Adams

425 N.W.2d 437, 430 Mich. 679

• Court: Michigan Supreme Court
• Decided: June 27, 1988
• Docket: Docket Nos. 77862, 77919, (Calendar Nos. 15-16)
• Status: Published

Opinions

Boyle, J.

We are asked in these consolidated cases to decide whether a judge may consider, when imposing sentence, a conclusion that the defendant committed perjury while testifying. In People v Adams, we are also asked to consider whether the defendant’s appeal should be dismissed because he had escaped from prison during its pendency. The Court of Appeals in both cases ruled that the sentencing judge may not consider perjured testimony in sentencing. In People v Spangler, 429 Mich 29; 413 NW2d 1 (1987), five justices of this Court agreed that perjury may be considered by a sentencing judge. Because of our disposition of another issue, that view did not, in Spangler, constitute the law of the case. We now hold that a trial court may consider perjured testimony at sentencing. We reverse the decisions of the Court of Appeals.

i

FACTS

A. PEOPLE v ADAMS

During the evening of April 17, 1982, the home of Lester and Virginia Knorr was burglarized. The defendant was arrested and charged with breaking and entering an occupied dwelling with intent to commit larceny in violation of MCL 750.110; MSA 28.305. At trial, the defendant offered an alibi defense. He testified that on the evening of the break-in, he was home playing cards with his family and some friends. He further testified that, except for an eighteen-minute period between 7:55 p.m. and 8:13 p.m. when he went to buy cigarettes at a nearby gas station, he remained at his residence. This version of events was substantiated by the defendant’s testifying witnesses.

The state offered the testimony of Gladys Blahovec. Mrs. Blahovec lived next to the Knorrs on Byrens Drive. She testified that a vehicle pulled into the victims’ driveway at approximately 8:30 p.m. and stayed for fifteen minutes. She stated that she could not identify the vehicle as a car or truck, but that it did have one dim headlight. Her daughter, Betty Lavigueur, testified that sometime between 8:30 p.m. and 8:45 p.m., as she turned into Byrens Drive, she saw a blue or green pickup truck with an off-color door leaving Byrens Drive at the intersection of Byrens and Lewis. The Knorr residence is approximately one-eighth of a mile from the Lewis intersection. The defendant owned a blue-green pickup truck with a partially white door on the driver’s side and the truck had one dim headlight.

Samples of tire tracks taken from the victim’s driveway were found to be similar to the tire treads on the defendant’s truck. Also, boot prints taken were judged similar to the tread design on boots owned by the defendant. Finally, a toolbox taken from the victim’s residence was found locked in a shed on the defendant’s property.

The defendant was convicted on November 16, 1982, and sentenced by Genesee Circuit Judge Earl E. Borradaile to a term of five to fifteen years. At sentencing, Judge Borradaile commented that incarceration was fitting because the defendant had victimized his brother-in-law’s friend and had lied during his trial testimony. These factors, the judge concluded, militated against the prospect of rehabilitation and, therefore, the option of probation.

The defendant thereafter filed a timely claim of appeal on February 9, 1983. During the pendency of that appeal, prior to the submission of briefs, the defendant escaped from the Southern Michigan Prison at Jackson. He remained on escapee status until his capture on January 11, 1984. Because of defendant’s "unavailability,” the Court of Appeals granted to defense counsel an extension of time in which to file her brief. As a result, there was a delay of nearly two months. While still a fugitive, the defendant’s appeal proceeded to the Court of Appeals on briefs, oral argument not having been requested. By order of that Court dated January 30, 1984, the case was remanded to the trial court "for an explanation of the court’s reasons in imposing this sentence.” In compliance, the trial court reiterated its earlier determination that defendant was unfit for probation because he had betrayed a family friendship and "told a baldfaced lie in the courtroom.”

In an unpublished per curiam opinion,¹ the Court of Appeals rejected the prosecutor’s request that defendant’s appeal be dismissed because he had escaped from prison. The Court reasoned that dismissal would amount to a double punishment² and further serve to deny defendant’s right to appeal under art 1, § 20 of the Michigan Constitution. The Court also concluded that the trial court erred in considering the defendant’s perjury in imposing sentence. People v Anderson, 391 Mich 419; 216 NW2d 780 (1974); People v McConnell, 122 Mich App 208; 332 NW2d 408 (1982), vacated on other grounds 418 Mich 881 (1983). Reasoning that a separate count of perjury was available if deemed appropriate, and that use of this criterion is improper under People v Coles, 417 Mich 523, 550; 339 NW2d 440 (1983), the Court remanded the case for resentencing, to be completed before a different judge.

The prosecutor appealed that ruling, and this Court granted leave. 425 Mich 852 (1986).

B. PEOPLE v STITT

The defendant was charged with larceny from a person in violation of MCL 750.357; MSA 28.589, resulting from a purse snatching outside of Mounir’s grocery store in the City of Flint. The complaining witness, Sandra Fisher, testified that she saw the defendant standing alone outside Mounir’s grocery as she approached the door. While shopping, she saw the defendant inside the store, and he was seen again outside the store when Ms. Fisher left. She identified the defendant as the man who stole her purse in the parking lot as she prepared to enter her car. Ms. Fisher was also able to identify the defendant in a photo identification approximately two months after the theft.

The defendant testified that he was at Mounir’s when Ms. Fisher’s purse was stolen, but that he was inside the store playing video games, did not leave the store, and that one Val Rawls had taken the purse. He further testified that when asked by the police about the incident, he had informed Sergeant Richard Lewis of the Flint Police Department that Val Rawls had taken the purse. He also claimed to have accompanied Sergeant Lewis to a sewer drain where the purse was supposedly hidden.

In rebuttal, Sergeant Lewis testified that when he questioned the defendant he indicated no knowledge of a purse snatching. He indicated, further, that he had not been in the area of the crime for over one and one-half years, and that he did not know where Mounir’s market was located. Sergeant Lewis further testified that the defendant had never mentioned the name Val Rawls and that he did not conduct any type of field investigation with the defendant to locate the missing purse.³

The defendant was convicted by a Genesee County jury and was sentenced to a term of six years, eight months to ten years. In imposing sentence, Judge Robert M. Ransom considered, among other factors, his belief that the defendant had lied during his trial testimony. After concluding that the trial judge had impermissibly enhanced defendant’s sentence by weighing his perjured testimony, the Court of Appeals vacated defendant’s sentence and remanded the case for resentencing, citing People v McConnell, supra; Scott v United States, 135 US App DC 377; 419 F2d 264 (1969).⁴ The state moved in the Court of Appeals for a rehearing, requesting that the defendant’s sentence be reinstated. That request was denied.

The prosecutor appealed in this Court, and leave was granted. 425 Mich 852 (1986).

ii

PERJURY

The Legislature has determined that the appropriate approach to sentencing is the individualization of a sentence to a given offender. MCL 769.8; MSA 28.1080. To achieve this objective, a sentencing judge is afforded "wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.” Williams v New York, 337 US 241, 246; 69 S Ct 1079; 93 L Ed 1337 (1949). "Highly relevant — if not essential — to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.” Id, p 247.

Recognizing, however, that sentencing discretion may be arbitrarily applied, this Court established certain criteria to aid the sentencing judge in determining an appropriate sentence. In People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972), we listed four basic considerations for sentence determination: "(a) the reformation of the offender, (b) protection of society, (c) the disciplining of the wrongdoer, and (d) the deterrence of others from committing like offenses.” This list was intended to set out a framework for evaluation of the various facts and circumstances surrounding the yet-to-be-sentenced defendant. Just what facts properly may be weighed when considering reformation, protection of society, discipline, and deterrence, however, has never been rigidly classified, and we reject any invitation to do so. It remains the role of the sentencing judge to weigh facts deemed relevant to the sentencing decision. People v Coles, supra, 550. Our function is to identify those factors which when injected into the sentencing process tread unfairly upon the defendant’s rights.

Thus, a sentencing judge does not have unfettered discretion. Numerous checks shield the defendant from an arbitrary sentence and help to insure that the objective of personalized disposition is achieved. In addition to the compilation of a presentence report⁵ and scoring under the sentencing guidelines, other decisions of this Court limit consideration of factors deemed inappropriate in sentencing, helping to insure that the judge enjoys a broad, yet fair, knowledge of the defendant and the circumstances of the crime of which he is convicted.⁶

In the cases at bar, the sentencing judges considered the defendants’ false testimony when passing sentence. This the defendants claim to be error. We must, therefore, decide whether it is appropriate to limit the trial court’s discretion and exclude this factor. For the reasons set forth below, we decline to do so. A sentencing judge may consider the defendant’s false testimony when passing sentence. The issue becomes under what circumstances this may occur.

In People v Anderson, supra, this Court stated that a trial judge’s consideration at sentencing of his impression that the defendant was protecting a codefendant was error. Viewed as, in effect, punishing the accused for exercising his Fifth Amendment right to remain silent, the Court analogized this constitutional infirmity to the rule in Scott v United States, supra, where it was found to be error for a judge to impose additional punishment because the judge believed that the defendant committed perjury.

In Anderson, the sentencing error was found in the sentencing judge’s consideration of the defendant’s exercise of his Fifth Amendment right to remain silent. In these cases now before the Court, however, the defendants chose to testify. Thus, the right to remain silent is clearly not involved, and the Anderson rationale is inapposite.

In Scott v United States, supra, the Court of Appeals predicated error on the sentencing judge’s punishment of the defendant because he believed the accused perjured himself. Writing for the Scott court, Judge Bazelon observed that "[i]t is indeed unlikely that many men who commit serious offenses would balk on principle from lying in their own defense. . . . But the defendant does have a right to testify in his own defense. ... If the Government for whatever reason concludes that prosecution for perjury is appropriate, he risks punishment for that as well.” Scott, supra, p 382. See also People v McConnell, supra. To the extent that Scott stands for the rule that a trial judge may not punish a defendant merely because he perjured himself, we would agree. Under our constitutional scheme, the defendant has both a right to testify and a right to remain silent. However, having voluntarily chosen to testify, the accused must speak truthfully. The constitution "cannot be perverted into a license to use perjury by way of a defense . . . .” Harris v New York, 401 US 222, 225; 91 S Ct 643; 28 L Ed 2d 1 (1971); United States v Wong, 431 US 174, 178; 97 S Ct 1823; 52 L Ed 2d 231 (1977); People v Esters, 417 Mich 34; 331 NW2d 211 (1982).⁷

Thus, while we agree with the statement that a judge may not punish a defendant for perjury, we do not agree with the conclusion of the Court of Appeals in Scott that the Fifth Amendment forbids consideration of perjury in assessing the defendant’s prospects for rehabilitation. We reject that conclusion as did the United States Supreme Court in United States v Grayson, 438 US 41; 98 S Ct 2610; 57 L Ed 2d 582 (1978).

In Grayson, the district judge at sentencing concluded that a prison term was warranted both to deter future criminal conduct, and because he viewed Grayson’s defense as " 'a complete fabrication without the slightest merit whatsoever.’ ” Id., p 44. The Third Circuit Court reversed and remanded for resentencing, concluding that "no additional penalty may be imposed upon a defendant because the trial judge believes that the defendant lied while testifying.” 550 F2d 103, 108 (CA 3, 1976). See Poteet v Fauver, 517 F2d 393 (CA 3, 1975). The dissenting judge would have found the trial judge’s evaluation of the defendant’s testimony proper stating:

If under Williams, supra, and the legion of cases which have followed it, hearsay evidence as to prior arrests, pending indictments, or indictments tried but not resulting in convictions, may be considered constitutionally in the selection of an appropriate sentence, it seems to me there is even greater justification for the judge to consider the attitude and conduct of the defendant during trial. In the instant case, the judge personally observed the witnesses and the demeanor of the defendant; he was impressed by the "complete fabrication” of the defense and its utter lack of merit. His observation specifically goes to the sort of person the defendant is; it is precise, is pertinent to the sentence the defendant should receive, and to the desirable objective of making the punishment fit the offender. [550 F2d 112. Emphasis added.]

The United States Supreme Court reversed, concluding that the sentence was not constitutionally impermissible. The Court observed that the critical inquiry in individualized sentencing requires exploration into the background, character, and demeanor of the person convicted and that "[a] defendant’s truthfulness or mendacity while testifying on his own behalf, almost without exception, has been deemed probative of his attitudes toward society and prospects for rehabilitation and hence relevant to sentencing.” Grayson, supra, p 50. Rejecting the rule in Scott, the Court offered:

The Scott rationale rests not only on the realism of the psychological pressures on a defendant in the dock — which we can grant — but also on a deterministic view of human conduct that is inconsistent with the underlying precepts of our criminal justice system. A "universal and persistent” foundation stone in our system of law, and particularly in our approach to punishment, sentencing, and incarceration, is the "belief in freedom of human will and a consequent ability and duty of the normal individual to choose between good and evil.” Given that long-accepted view of the "ability and duty of the normal individual to choose,” we must conclude that the defendant’s readiness to lie under oath — especially when, as here, the trial court finds the lie to be flagrant — may be deemed probative of his prospects for rehabilitation. [Id., p 52. Citations omitted.]

Although we are not obligated to follow the holding in Grayson, we join the majority of our sister states addressing this issue⁸ and find the logic and reasoning compelling. If a sentencing judge is to exercise discretion and tailor a sentence to the individual, reason dictates that this Court not render the judge legally oblivious to evidence of a character trait which is probative of rehabilitation prospects. On this theme, Judge Marvin Frankel aptly stated:

The effort to appraise "character” is, to be sure, a parlous one, and not necessarily an enterprise for which judges are notably equipped by prior training. Yet it is in our existing scheme of sentencing one clue to the rational exercise of discretion. If the notion of "repentance” is out of fashion today, the fact remains that a manipulative defiance of the law is not a cheerful datum for the prognosis a sentencing judge undertakes. . . . Impressions about the individual being sentenced— the likelihood that he will transgress no more, the hope that he may respond to rehabilitative efforts to assist with a lawful future career, the degree to which he does or does not deem himself at war with his society — are, for better or worse, central factors to be appraised under our theory of "individualized” sentencing. The theory has its critics. While it lasts, however, a fact like the defendant’s readiness to lie under oath before the judge who will sentence him would seem to be among the more precise and concrete of the available indicia. [United States v Hendrix, 505 F2d 1233, 1236 (CA 2, 1974).][⁹]

We do not suggest that the trial judge has uncontrolled discretion in this area, or that there could not be circumstances in which the record would support a claim that the defendant’s testimony did not display a flagrant willingness to lie under oath, that the trial court gave improper weight to false testimony on an irrelevant matter, or that the trial court improperly concluded that the perjury in question was wilful, that is, that although material the evidence could not rationally be attributed to the defendant and was therefore not relevant to the prospects for rehabilitation.

However, when the record contains a rational basis for the trial court’s conclusion that the defendant’s testimony amounted to wilful, material, and flagrant perjury, and that such misstatements have a logical bearing on the question of the defendant’s prospects for rehabilitation, the trial court properly may consider this circumstance in imposing sentence.

We can perceive no basis for denying to a trial judge at sentencing the type of circumstantial inference that a factfinder may indisputedly draw from flight, or from fabrication of evidence. In such an instance, the factfinder may infer consciousness of guilt. In the sentencing process, the trial judge is required to presume guilt in fact and should be allowed to infer that a defendant’s wilful material perjury under oath circumstantially indicates the absence of a character trait for being law-abiding that bears on the appropriate sentence.

Nor can we accept the premise that permitting consideration of such circumstance in evaluating a convicted defendant’s prospects for rehabilitation will chill the exercise of the defendant’s right to trial.¹⁰

The United States Supreme Court has recently and unanimously reaffirmed that there is no right, constitutional or otherwise, to testify falsely, Nix v Whiteside, 475 US 157; 106 S Ct 988; 89 L Ed 2d 123 (1986), and the Court specifically rejected the chilling argument as "without basis” in Grayson.

The right guaranteed by law to a defendant is narrowly the right to testify truthfully in accordance with the oath — unless we are to say that the oath is mere ritual without meaning. . . . Assuming, arguendo, that the sentencing judge’s consideration of defendants’ untruthfulness in testifying has any chilling effect on a defendant’s decision to testify falsely, that effect is entirely permissible. There is no protected right to commit perjury. [United States v Grayson, supra, p 54.]

The Legislature has declared that tailoring the sentence to the offender is the task of the trial judge. It is not attitudinal formulation but this legislatively imposed responsibility that requires the trial court to make the agonizing evaluation of the person who stands before the court awaiting judgment in light of the consequences of the crime committed and the need to protect society. It would surely simplify the duties of trial court judges if sentences were to be imposed without these considerations, but it is just as surely inconsistent with the sentencing policy the Legislature has declared and that the defendant, the victim, and the public therefore have a right to expect. To fail to appreciate this fact is to fail to understand the significance of the obligation of a trial court judge to the oath of office. To a trial judge, wilful and flagrant mendacity is not an "abstraction” but part of the mix of considerations brought to bear in this process so vital to the defendant, to the victim, and to the community.¹¹

As the Court in Grayson observed, the moral postulate of our legal system is that the normal individual has freedom of will and therefore the duty to choose between good and evil. That premise is reflected in decisions such as Nix, in the Canons of Professional Ethics, and in the rule we adopt today.

The uniquely American commitment to procedural due process and our historical mistrust of government has fostered not only tolerance but admiration for the skillful ambush of the powers that be. We are not required, however, to hold harmless the creation of a wholly fabricated defense. As difficult as the process is, the fact is that trial judges, like trial lawyers, and particularly lawyers in criminal defense work, are constantly called upon to resolve issues regarding what conduct permissibly pushes the system to the limit, and what is abuse of the process. A system that imposes such refined and particularized responsibility rests on the notion that humankind has choices and that consequences flow from one choice or the other. This is a moral postulate ingrained in our tradition. That the postulate cannot be proven does not destroy its efficacy. The postulate is asserted to affirm both what we are and what we ought to be as a legal system and as a country. The opposing view reduces the individual defendant to an automaton, the lawyer to an appendage of the client’s desires, and the system itself to the deterministic posture that in the face of adversity one cannot expect and therefore cannot judge another human being by the lengths to which they will go to escape the consequences of a current predicament.

The defendant argues that the record fails to show that Judge Borradaile considered his perjurious testimony as a rehabilitative factor. We cannot agree. At the original sentencing, Judge Borradaile indicated his reasons for the sentence imposed stating:

The Court: Mr. Adams, I have read through the presentence investigation report. And, of course, I’ve heard the entire trial of this matter because I was the presiding Judge at the trial of the matter.

I consider that you got on the witness stand and lied to the Court, lied to the jury. And, the Court is satisfied that the evidence was exactly as I believe you told the probation officer in your comment that you say, quote, "If I had been on the jury, I would have come to the same decision,” end quote.

I’m satisfied you did it. I don’t know if your ex-brother-in-law was involved with you. That’s something that apparently the prosecutor and the police could not determine as to whether he had in fact was [sic] involved as well. So they did not proceed against him. But I’m satisfied you proceeded and I’m satisfied that you got on the witness stand and lied to the jury and to the Court. And, for that reason I don’t consider that there is any basis, when somebody lies, to justify attempting probation when they can’t tell the truth when they’re under oath. So I intend to incarcerate you. [Emphasis added.]

Mr. Kittendorf, you may address the Court at this time relative to allocution.

Mr. Kittendorf: Judge, first of all, Mr. Adams does have employment available to him. And, if the Court should see fit to send Mr. Adams to the county jail, we would request that he have a work release program so that he can both honor his support obligation to his previous family and his support obligation to his present family.

And, in addition to that, we recognize the — Of course, I was here during the course of the trial. And, I discussed the issue that you’ve raised right now with the young lady that did the probationary report. And, I’m not certain that I can totally — I can agree with you that he lied. I can certainly agree that — with Mr. Adams’ comment that there was a significant amount of circumstantial evidence that was involved in this particular case. I would hope that the Court would decide this matter on the basis of what Mr. Adams can contribute to the community. And, that’s really all that I have to say.

The Court: All right, anything you wish to add, Mr. Adams?

The Defendant: No, your Honor.

The Court: All right, I don’t consider that someone who takes advantage of a family where he had apparently been a guest before and then lies in the trial of the matter has any basis for rehabilitation. And, that’s the Court’s determination as to sending him to the state penitentiary. [Emphasis added.]

After remand from the Court of Appeals ordering "an explanation of the court’s reasons in imposing this sentence,” Judge Borradaile similarly stated:

And the Court notes that the testimony was quite clear in the instant case that the defendant had been a family friend of the family who was victimized in this matter. It was quite apparent that he knew that there was going to be a wedding and that the family would be away from the home. And the Court feels that he played upon that personal knowledge as well as his buddy and apparent brother-in-law who also attended the wedding and the wedding reception thereafter. And the Court is satisfied that the defendant used that acquaintance with the family and the personal knowledge through his brother-in-law that they were, going to be away as the basis for his going to the house when he knew that there would be no one there for a period of time.

So that the Court feels that that is an — is a factor that calls for increasing the sentence over what the sentence might have been as a matter of departure from what the guidelines would show.

The Court also felt that even though he had no previous record, and thus under some circumstances if there [sic] weren’t for this violation of trust that he might be a fit subject for probation, the amount of money involved — over $3,000 was paid — the fact that he took the witness stand and the Court was satisñed that he told a bald-faced lie in the courtroom, and despite the Supreme Court recently ruling that there is a difference between various types of perjury committed in a criminal offense, the Court is of the opinion that he is not a fít subject for probation. [Emphasis added.]

Thus those two factors, the violation of trust and the lying on the witness stand, were the two factors, as noted in the previous transcript of the sentencing, that the Court took into account in determining the sentence of five years minimum to fifteen years maximum.

Review of these proceedings illustrates that the defendant’s false testimony was but one element considered, and that rehabilitation was a motivating factor in Judge Borradaile’s sentence. There is no indication from the record that punishment for perjury was intended or contemplated.

In this case, the record reveals that defendant’s perjured testimony was material to his defense. The defendant freely chose to testify after consulting with his defense counsel and offered corroborating testimony from other witnesses to substantiate his alibi defense. The defendant’s testimony was entirely exculpatory and bore directly on the question of his guilt. The record supports Judge Borradaile’s conclusion that the defendant lied while testifying and that, therefore, his use of that fact when assessing defendant’s prospects for rehabilitation was not error. We, therefore, reverse the decision of the Court of Appeals and reinstate the defendant’s original sentence.

In light of the foregoing analysis, we need not decide whether Adams’ appeal should forfeit because he escaped during its pendency. In Michigan, a first appeal is a constitutional right. To wade into the waters of waiver or forfeiture is thus unnecessary. We adhere to the Court’s practice "not to grapple with a constitutional issue except as a last resort.” Taylor v Auditor General, 360 Mich 146, 154; 103 NW2d 769 (1960).

B. PEOPLE v STITT

In this case, the defendant argues that he was denied the protections of a trial for perjury when Judge Ransom included among his reasons for the sentence imposed that the defendant lied to the jury. At the sentencing, Judge Ransom stated:

The Court: Mr. Stitt, the sentence guidelines which the court is to use as a guide in sentencing provides for a minimum sentence range from zero to twelve months. I’m going to deviate from that sentence guideline and I’m required to state on the record why I’m not going to follow the guidelines and why I’m going to impose the sentence that I’m going to impose.

So, I’m compelled to say some things here that I’m sure you’re not going to like, but that’s my obligation and I’m going to tell it to you as I see it.

I’m satisñed that you lied to the jury. I’m satistied that you have been manipulative in dealing with the pre-sentence investigator. I’m satisñed from the report that the pre-sentence investigator felt also that you lie [sic]. This is an assaultive offense and I’m satisñed that you have no scruples when it comes to your conduct and other peoples’ rights. I think you’re a threat to the community and for that reason I’m going to impose the maximum sentence that can be imposed here. [Emphasis added.]

Defendant’s argument is predicated upon his belief that Judge Ransom was punishing him for lying at trial. Review of this excerpt indicates that this is not the case. Judge Ransom listed in support of the sentence given, his belief that the defendant lied, that he was manipulative with the presentence investigator, that his was an assaultive offense, that he had no respect for the rights of others, and that he was a threat to the community. For these reasons a lengthy prison term was selected.¹² We are satisfied that Judge Ransom was not punishing Mr. Stitt for lying. Rather, Mr. Stitt’s mendacity while testifying was merely stated as a factor in sentencing which was "probative of his attitudes toward society and prospects for rehabilitation . . . .” Grayson, supra, p 50.

As in Adams, the record in this instance supports the use of defendant’s perjury at sentencing. He testified that he was inside Mounir’s grocery store at the time of the theft and that Val Rawls had taken the purse. Further, he claimed that he had assisted Sergeant Richard Lewis in an attempt to locate the missing purse. These claims were completely contradicted by the testimony of Officer Lewis and by the identification of defendant as the perpetrator by the complaining witness Fisher. The defendant freely testified to these facts, and his testimony was obviously material to the issue of his guilt.

Judge Ransom indicated that the defendant’s false testimony was but one factor he addressed when passing sentence. We find that factor to have been properly considered. The decision of the Court of Appeals is reversed, and the defendant’s original sentence is reinstated.

CONCLUSION

Were the role of the sentencing judge merely to match the sentence to the crime, the burden of sentencing would be far less onerous. Our system, however, requires that focus be on the defendant. At this stage, character is always at issue. We observe, as did the Grayson Court, that_

[n]othing we say today requires a sentencing judge to enhance, in some wooden or reflex fashion, the sentences of all defendants whose testimony is deemed false. Rather, we are reaffirming the authority of a sentencing judge to evaluate carefully a defendant’s testimony on the stand, determine— with a consciousness of the frailty of human judgment — whether that testimony contained willful and material falsehoods, and, if so, assess in light of all the other knowledge gained about the defendant the meaning of that conduct with respect to his prospects for rehabilitation and restoration to a useful place in society. [Id., p 55.]

We should not be understood as intimating that when assessing the prospects for rehabilitation perjured testimony should always be considered. We only hold that to do so based upon a wilful, material, and flagrant falsehood is not error.

Riley, C.J., and Brickley, Archer, and Griffin, JJ., concurred with Boyle, J.

1 People v Adams, unpublished opinion per curiam of the Court of Appeals, decided December 12, 1985 (Docket No. 69537).

2 See MCL 750.193; MSA 28.390, making prison escape a felony.

3 Ms. Fisher testified that someone had returned her purse through the mail.

4 People v Stitt, unpublished opinion per curiam of the Court of Appeals, decided November 7, 1985 (Docket No. 79651).

5 MCL 771.14; MSA 28.1144.

6 See, e.g., People v Fleming, 428 Mich 408, 429; 410 NW2d 266 (1987) (good-time release, disciplining credit, or effect of Prison Overcrowding Emergency Powers Act may not be considered); People v Yennior, 399 Mich 892; 282 NW2d 920 (1977) (sentence may not be based on refusal to admit guilt); People v Moore, 391 Mich 426, 440; 216 NW2d 770 (1974) (sentencing judge may not consider noncounseled convictions); People v Earegood, 383 Mich 82, 85; 173 NW2d 205 (1970) (improper to consider defendant’s last-minute plea or jury trial waiver); People v Towns, 69 Mich App 475, 479; 245 NW2d 97 (1976) (sentencing judge may not consider polygraph results).

7 Prosecution under the perjury statute, MCL 750.422; MSA 28.644, is the appropriate course when the circumstances indicate that punishment is warranted. However, viewing the realities of the criminal justice system with a pragmatic eye, the threat of a perjury prosecution to the testifying defendant may be at times an empty one. That a threat of perjury prosecution may not inhibit the commission of perjury is not, however, a condonation of perjury.

8 State v Lask, 135 Ariz 612, 615; 663 P2d 604 (1983) ("trial court may consider perjured testimony in enhancing sentence”); People v Redmond, 29 Cal 3d 904, 913; 176 Cal Rptr 780; 633 P2d 976 (1981) ("A trial court’s conclusion that a defendant has committed perjury may be considered as one fact to be considered in fixing punishment as it bears on defendant’s character and prospects for rehabilitation”); People v Wilson, 43 Colo App 68, 71; 599 P2d 970 (1979) ("sentencing court may consider a defendant’s false testimony as probative of his rehabilitative potential”); State v Huey, 199 Conn 121, —; 505 A2d 1242, 1247 (1986) (defendant’s denial of criminal act proper factor of defendant’s lack of readiness for rehabilitation); Banks v United States, 516 A2d 524, 530-531 (DC App, 1986); Hernandez v State, 446 So 2d 235, 236 (Fla App, 1984); cf. Everage v State, 504 So 2d 1255, 1258 (Fla App, 1986), reh den 508 So 2d 13 (Fla, 1987); Daytona Beach v Del Percio, 476 So 2d 197 (Fla, 1985); State v Kohoutek, 101 Idaho 698, 699; 619 P2d 1151 (1980) (trial court may consider defendant’s attempt to suborn perjury); State v Bragg, 388 NW2d 187, 191 (Iowa App, 1986); People v Meeks, 81 Ill 2d 524, 536; 44 Ill Dec 103; 411 NE2d 9 (1980) (sentencing judge may consider perceived perjury); State v May, 227 Kan 393, 397-399; 607 P2d 72 (1980) (trial judge may consider falsity of defendant’s testimony as well as prosecutor’s opinion concerning defendant’s testimony); Coleman v State, 621 P2d 869, 883 (Alas, 1980), cert den 454 US 1090 (1981) (sentencing judge may consider perceived perjury to determine rehabilitation potential, not to punish alleged perjury); Atkins v State, 40 Md App 461, 464-466; 391 A2d 868 (1978) (trial judge may negatively consider defendant’s truthfulness when imposing sentence); State v Plante, 417 A2d 991, 996 (Maine, 1980) (respect for truth relevant to rehabilitation); State v Thompson, 310 NC 209, 226-227; 311 SE2d 866 (1984) (trial court may consider defendant’s perjury as aggravating sentencing factor); State v Stewart, 70 Ohio App 2d 147, 150-151; 435 NE2d 426 (1980) (rejecting State v Jeffers, 57 Ohio App 2d 107; 385 NE2d 641 [1978] in favor of Grayson analysis); Commonwealth v Alicea, 498 Pa 575, 579-581; 449 A2d 1381 (1982) (trial court may consider defendant’s perjury as one factor in imposing sentence). See also Commonwealth v Thurmond, 268 Pa Super 283; 407 A2d 1357 (1979); State v Bertoldi, 495 A2d 247, 253-254 (RI, 1985) ("trial justice was not in error in considering defendant’s willingness to lie under oath”); State v Degen, 396 NW2d 759, 760-761 (SD, 1986) (no abuse of discretion to consider defendant’s fabrication at sentencing); State v Bunch, 646 SW2d 158, 160-161 (Tenn, 1983) (trial court may consider untruthfulness as a factor bearing on defendant’s prospect for rehabilitation); In re Welfare of Luft, 21 Wash App 841, 855; 589 P2d 314 (1979) ("perjury by the defendant may be considered in sentencing”); State v Finley, — W Va —, —; 355 SE2d 47, 52-53 (1987) (following Grayson). Contra: State v Smith, 407 So 2d 652, 658 (La, 1981) (defendant’s untruthfulness and refusal to plea bargain are not factors to form sentence under state statutes); Commonwealth v Coleman, 390 Mass 797, 807-810; 461 NE2d 157 (1984). See also anno: Propriety of sentencing judge’s consideration of defendant’s perjury or lying in pleas or testimony in present trial, 34 ALR4th 888.

9 Further, we should not ignore the practical effect of a rule that would exclude this consideration. A trial judge, after having heard all the evidence, including testimony of the accused, undoubtedly forms an opinion of the defendant’s character. Were we to hold that the judge must ignore his opinion of the mendacity of the defendant when engaging in the individualized evaluation required for indeterminate sentences, we would belie the fact that trial judges assess the character of those who stand before them.

10 The dissent suggests that sentencing concerns should be subordinated "to the extent necessary to avoid jeopardizing or diminishing discharge of the judiciary’s primary mission ... of adjudicating controversies,” post, p 705.

11 The suggestion that the Legislature should be called upon to address this problem wholly fails to comprehend that in any prosecution in which the potential penalty is mandatory life, or any term of years substantially in excess of the fifteen-year penalty for perjury, the sanction against peijury (as in the case of jury tampering or witness intimidation) is inherently ineffective and not subject to legislative correction.

This observation, however, is not the basis for our conclusion. Despite the fact that in a given case the criminal penalties for perjury may not have a deterrent effect, it is as logically possible that a defendant facing these penalties will adhere to the oath and present truthful testimony as it is that the defendant will not.

12 We note that "rehabilitation” was never specifically mentioned during the sentencing, but this fact does not render the proceeding a trial for perjury. Judge Ransom was charged with assessing Mr. Stitt’s character before passing sentence upon him; this task was succinctly accomplished.