People v. Blachura

229 N.W.2d 877, 59 Mich. App. 664, 1975 Mich. App. LEXIS 1397

• Court: Michigan Court of Appeals
• Decided: March 24, 1975
• Docket: Docket 13627
• Status: Published

Opinions

Quinn, P. J.

Defendant was indicted by a grand jury for perjury. Tried by a jury, he was convicted on five of the six counts contained in the indictment. Defendant moved for a new trial which was granted as to counts 1 and 2; counts 3 through 6¹ were quashed. On leave granted, the people appeal.

Defendant was called as a witness before a grand jury which was investigating alleged wrongdoing and conflict of interest in the office of the county drain commissioner. Defendant’s attorney was present but was not in the grand jury room. Defendant was advised of his right to consult with his attorney.

Although the trial judge found that none of the grounds alleged as basis for a new trial were applicable to counts 1 and 2, he granted a new trial as to them because the reasons for quashing counts 4 through 6 affected the validity of the trial on all counts. We now examine those reasons.

The trial judge held that defendant was entitled to have his attorney present in the grand jury room on the basis of the statute, MCLA 767.3; MSA 28.943, and on Escobedo v Illinois, 378 US 478; 84 S Ct 1758; 12 L Ed 2d 977 (1964), and Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966). Neither basis supports the holding. (Appellee seems to concede this in his brief at page 28.)

The statute relied on relates to proceedings before a one-man grand jury. The grand jury which indicted defendant was a citizens’ grand jury and the controlling statute is MCLA 767.19e; MSA 28.959(5). This statute provides right of counsel to a witness granted immunity and requires counsel’s presence when the witness is being questioned concerning matters included within the grant of immunity. This specific statute on right to counsel in citizens’ grand jury proceedings leads to the conclusion that the statute relied on by the trial judge is inapplicable in this case and applies only to one-man grand jury proceedings.

There is nothing in this record which requires or justifies application of the principles announced in Escobedo and Miranda, supra. The grand jury proceeding was a general inquiry, not accusatory. It never focused on defendant in the area of the investigation and defendant was not in police custody. Defendant’s problem arose not from the denial of any of his rights but from his own testimony. Even assuming denial of some of defendant’s rights, this would not grant him a license to commit perjury, People v Ianniello, 21 NY2d 418; 288 NYS2d 462; 235 NE2d 439 (1968).

Defendant contends that the right of a witness before a one-man grand jury to have counsel present in the room where the inquiry is held and the denial of that right to a witness before a citizens’ grand jury denied defendant equal protection of the law. The significant differences between proceedings before a one-man grand jury and a citizens’ grand jury are ample justification for this disparity in a witness’s right to counsel depending on the type of grand jury he is called before.

The record does not support the finding of the trial court that defendant was denied access to his attorney outside the grand jury room. If it did, defendant did not have a license to commit perjury, Ianniello, supra.

The trial judge further held that defendant’s testimony before the grand jury was the product of "star chamber coercion and duress”. If the record supports this holding, the defense of coercion and duress to a charge of perjury creates an issue for jury determination, People v McClintic, 193 Mich 589, 602; 160 NW 461, 465 (1916).

Reversed. Jury verdicts are reinstated. Remanded for sentencing.

1 Defendant was acquitted on count 3 and reference to that count in the trial judge’s opinion is obviously erroneous.