People v. Finley

431 N.W.2d 19, 431 Mich. 506

• Court: Michigan Supreme Court
• Decided: October 17, 1988
• Docket: 81221, (Calendar No. 10)
• Status: Published

Opinions

Riley, C.J.

The issues in this case are whether we should require a defendant to testify at trial to preserve for review the issue of improper impeachment by prior convictions, and, if so, whether such a requirement should have prospective application only.

We find that the rationale underlying the above rule is sound, and hold that today’s decision will apply in any case tried after the release date of this opinion. We further hold that, in cases now pending on appeal, review of the impeachment issue is preserved: 1) if the defendant had in fact testified at trial, or 2) if the defendant had expressed his intention to testify in the event his prior record was excluded and had stated the nature of his expected testimony. In the instant case, defendant did not testify, nor did he express his intention to testify or outline the nature of his proposed testimony. Thus, defendant has waived review of the issue.

PACTS AND PROCEEDINGS

Defendant was convicted by a jury in Wayne Circuit Court of four counts of first-degree criminal sexual conduct, MCL 750.520b(l); MSA 28.788(2)(1), and of armed robbery, MCL 750.529; MSA 28.797. The judge sentenced defendant to five concurrent prison terms of forty to sixty years.

The victim testified that on October 16, 1984, at approximately 6:15 p.m., she was at a car wash vacuuming the floorboard of her automobile. Two assailants grabbed the back of her hair, pulled her from the automobile, and held a knife to her throat. The victim later identified her assailants as defendant, Robert Finley, and Thomas Vaughn. The men forced the victim into her car and proceeded to drive to several locations, alternately subjecting the victim to repeated acts of oral, anal, and vaginal intercourse. During the course of these events, defendant and Vaughn took approximately seventeen dollars from the victim to pay for gasoline, as well as several articles of jewelry.

Defendant and Vaughn eventually abandoned the victim on the side of an expressway and drove off in her car. The victim flagged down a passing motorist who took her to a nearby police station.

Defendant was arrested after the victim identified him from photographs. The victim also identified Vaughn, who faced charges as a codefendant but died before trial commenced.

On the first day of trial, defendant made a motion in limine to prevent the prosecution from using his prior felony conviction to impeach him if he testified. Approximately four years before trial, defendant had been convicted in Kentucky of burglary. Defendant did not express his intention to testify if his felony conviction was excluded. Nor did defendant inform the court of the expected nature of his testimony.

The trial court denied defendant’s motion, apparently finding that the similarity of the prior burglary conviction to the armed robbery charge militated in favor of admission rather than exclusion. Defendant did not testify at trial.

On appeal, defendant argued that the trial court incorrectly weighed the similarity factor as favoring admission. See People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979) (holding that similarity weighs against admissibility). The Court of Appeals agreed with defendant but declined to reverse his conviction. People v Finley, 161 Mich App 1; 410 NW2d 282 (1987).

Instead, the Court adopted the rule of Luce v United States, 469 US 38; 105 S Ct 460; 83 L Ed 2d 443 (1984), which requires that in order to preserve the issue of improper impeachment by prior convictions, a defendant must testify at trial. In this case, since defendant did not testify, the Court held that the issue was not preserved for review.

We granted leave to appeal on defendant’s application, limited to the issues whether this Court should adopt the Luce requirement, and, if so, whether that requirement should have prospective application only. 429 Mich 894 (1988).

i

ANALYSIS

Under the Federal Rules of Evidence, the use of prior convictions to impeach a defendant’s testimony is governed by FRE 609(a).¹ In most cases, the judge will be required to balance the probative value of admitting the prior conviction with the prejudicial effect to the defendant. Where the probative value outweighs the prejudicial effect, the judge must admit the prior conviction.

The purpose of the Luce rule is to provide a mechanism for meaningful appellate review of the impeachment decision. In fact, the straightforward logic of Luce not grasped by either dissent is that as to evidentiary rulings, error does not occur until error occurs; that is, until the evidence is admitted. Obviously, in other contexts, if an offer of proof is made and the court erroneously permits the introduction of hearsay, character evidence, similar acts, or the myriad of evidence objectionable under the MRE, there is no error requiring reversal unless the evidence actually is introduced. Unless the defendant actually testifies, a number of questions remain open to speculation:

Any possible harm flowing from a district court’s in limine ruling permitting impeachment by a prior conviction is wholly speculative. The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant’s proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling. On a record such as here, it would be a matter of conjecture whether the District Court would have allowed the Government to attack petitioner’s credibility at trial by means of the prior conviction. [Luce, supra at 41-42.]

The Luce Court also noted that the prosecutor may not have attempted to impeach the defendant with the prior conviction. Where the case against the defendant is strong, or other avenues of impeachment are available, it is possible that the defendant’s prior record would not have been used. Luce, supra at 42.

In addition, a defendant’s decision not to testify generally is based on many factors, no one of which is determinative. A reviewing court cannot assume that the defendant decided not to testify out of fear of impeachment by a prior conviction. Id. The Court rejected the suggestion that a defendant may state an intention to testify if the court grants the motion in limine because such a commitment is difficult to enforce. Id.

In the event that the trial judge incorrectly allows impeachment by prior conviction, the Luce rule enhances review of the harmless error issue:

Were in limine rulings under Rule 609(a) reviewable on appeal, almost any error would result in the windfall of automatic reversal; the appellate court could not logically term "harmless” an error that presumptively kept the defendant from testifying. Requiring that a defendant testify in order to preserve Rule 609(a) claims will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage meiking such motions solely to "plant” reversible error in the event of conviction. [Luce, supra at 42.]

A ruling in limine on impeachment by prior convictions does not present constitutional implications. Id. at 43. As such, while Luce is binding on the federal courts, we are not required to apply its holding in Michigan courts. See People v Turner, 390 Mich 7, 19; 210 NW2d 336 (1973). However, as noted in People v Allen, 429 Mich 558, 636, 637; 420 NW2d 499 (1988) (Riley, C.J., dissenting), an overwhelming majority of states deciding the issue have adopted the Luce rule.²

At the time of trial, the Michigan rule was similar to the federal rule.³ However, very recently, this Court substantially revised MRE 609.⁴

In Allen, a majority of this Court created a new framework with which to analyze the issue of impeachment by prior conviction. The Court established three categories of prior convictions: those inherently probative of truth or veracity are automatically admitted; those not inherently probative of truth or veracity are automatically excluded; and those involving a theft component are to be admitted or excluded at the trial judge’s discretion.

The Allen Court also clarified the balancing factors to be considered where the prior conviction involved a theft component. The judge must determine whether the probative value of admitting the prior conviction would outweigh the prejudicial effect to defendant. In determining the probative value of the conviction, the judge must objectively consider only the vintage of the prior conviction and its indicia of veracity. Allen, supra at 606. The prejudicial effect must be determined by considering only the "similarity [of the prior conviction] to the charged offense and the importance of the defendant’s testimony to the decisional process . . . .”⁵ Id._

Defendant argues that the rules and practice of impeachment by prior convictions in Michigan are so dissimilar to the procedure in the federal system that the Luce rule is unnecessary. This Court’s decision in Allen results in a more limited degree of discretion in the trial court than under the federal rules. As such, while appeals in the federal system will usually involve an abuse of discretion, under Allen, the issue on appeal will usually be whether the judge erroneously determined that a prior conviction fell within one of the "bright line” categories. Defendant’s testimony is unnecessary to determine this question on appeal.

Furthermore, defendant argues that federal practice is different than Michigan practice because under the federal rules, the trial judge may defer ruling on the impeachment question until after the defendant actually testifies. However, in Michigan, the judge must rule on the impeachment question before the defendant testifies. See People v Lytal, 415 Mich 603, 609-610; 329 NW2d 738 (1982). Thus, since the judge must decide the question before hearing a defendant’s testimony, defendant argues that a primary rationale underlying the Luce rule is undermined.

Defendant suggests that in light of these differences, an alternative procedure, such as described in United States v Cook, 608 F2d 1175 (CA 9, 1979), cert den 444 US 1034 (1980), would be sufficient in Michigan. In Cook, the court adopted a two-part requirement in order to preserve the issue for appeal. The defendant must express an intention to testify if his prior convictions are excluded. Further, the defendant must sufficiently describe the nature of his testimony for the trial and appellate courts to decide the balancing question. Id. at 1186.

We agree with defendant that there are significant differences between practice in Michigan and in the federal courts. However, we disagree that those differences warrant an alternate procedure. The difficulties remedied by the Luce rule are, for the most part, equally present under Michigan practice.

The primary purpose of the Luce rule is to facilitate appellate review by requiring a fully developed factual record upon which to examine the trial judge’s impeachment decision, and, if erroneous, to decide whether that error was harmless. Luce was not necessarily intended to benefit the trial judge in reaching the impeachment decision in the first instance. While there may be a peripheral benefit at the trial level as the judge may change the impeachment decision after hearing a defendant’s testimony, that benefit is tangential to the fundamental purpose of providing meaningful appellate review. Thus, we reject defendant’s argument that the Michigan rule requiring the impeachment question to be decided before the accused takes the stand weakens the Luce rationale.

We also reject — for the same reasons as the Luce Court — defendant’s suggestion that a Cook statement of intention to testify and offer of proof provide a sufficient basis for appellate review. Defendant’s promise to testify would be unenforceable, Luce, supra at 41, and there is no guarantee that defendant’s trial testimony will mirror the offer of proof. Id. at 41, n 5.

Defendant’s argument that judicial discretion has been curtailed by Allen carries more weight. We agree that Allen reduced the scope of discretion on this issue, but disagree with the implicit conclusion that Allen obviates the need for a Luce rule.

Of the three categories of prior convictions, the discretionarily admitted or excluded convictions are analyzed in a similar fashion as in federal court. The judge must weigh the probative value versus the prejudicial effect and admit or exclude the conviction as a matter of discretion. Part of that decision requires the judge to determine the importance of the defendant’s testimony to the decisional process, which is largely unknowable unless the defendant testifies. With the defendant’s testimony on the record, it will be easier for the appellate court to determine what the effect on the decisional process would have been had the defendant not testified.⁶ Thus, since admission of theft convictions is similar to the federal practice, there remains the same necessity of an adequate record to provide meaningful appellate review. Accordingly, the Luce requirement is equally necessary.

Defendant argues, however, that review of decisions in which the conviction falls within one of the "bright line” categories does not require a developed factual record. As such, in the event of an incorrect decision, an accused would be severely prejudiced because, in order to appeal, the defendant must testify and face the improper impeachment.

At the outset, it should be noted that a decision regarding the category into which a prior conviction falls is fairly straightforward, with a relatively small grey area of doubt. Therefore, we do-not anticipate a large number of incorrect decisions on this question. It would seem that defendant’s fears may be somewhat exaggerated.

However, notwithstanding the above, we reject defendant’s argument on another basis. It is true that the question whether a conviction falls within a "bright line” category does not require a defendant’s testimony in order to be properly reviewed. However, for the most part, the rationales underlying the Luce rule are applicable even where the prior conviction falls within one of the "bright line” categories. Any hardship to the defendant arising out of an incorrect decision is purely speculative in the absence of his testimony. As noted by the Luce Court, a defendant’s decision not to testify is rarely premised solely on whether prior convictions will be used for impeachment. Luce, supra at 42. Further, the prosecutor may have decided to use other means to impeach the defendant. Id. Finally, without defendant’s testimony, a reviewing court is limited in determining the harmless error question.

It should also be noted that the Federal Rules of Evidence, under which Luce was decided, contain a "bright line” component similar to one category of the revised Michigan rule. Under FRE 609(a),⁷ any conviction, be it felony or misdemeanor, shall be admitted if the crime involved dishonesty or false statement. However, despite this "bright line” component of the federal rule, the Supreme Court determined that defendant’s testimony is necessary to facilitate review. Further, a number of states with limited judicial discretion on the issue of admission of prior convictions have adopted the Luce rule.⁸ Accordingly, we disagree with defendant that the "bright line” aspects of the new Michigan rule render the Luce rule unnecessary.

Furthermore, despite the suggestions in Justice Cavanagh’s opinion, it cannot be seriously claimed that the Fifth Amendment bars adoption of Luce. Whatever one’s views of the philosophy of particular justices, in Luce, all eight justices agreed that the issue did not involve a Fifth Amendment challenge. The issue presented is what procedural steps are necessary to preserve an issue for appeal, a matter that no more levies a "court-imposed price” for the exercise of a constitutional privilege than procedural rules requiring the timely assertion of other constitutional rights.

Justice Levin’s approach purports to meet the Luce objectives while imposing on the trial court the burden of conducting a minitrial on the evidentiary issue; whether or not the defendant actually intends to take the stand, it is predictable that such a hearing would always take place in order to protect the claim on appeal. Thus, Justice Levin’s reverse-Luce proposal does not meet the Supreme Court’s observation in Luce that "[because an accused’s decision whether to testify 'seldom turns on the resolution of one factor’ (citation omitted), a reviewing court cannot assume that the adverse ruling motivated a defendant’s decision not to testify,”⁹ nor will it "tend to discourage making such motions solely to 'plant’ reversible error in the event of conviction.” Id. at 42._

Nor, given the fact that a revers e-Luce hearing will predictably be held in every case can it be said that the revers e-Luce hearing is more efficient than Luce. If the revers e-Luce hearing is held and the judge decides to permit impeachment, the process must then be repeated in front of the jury. If, at the reverse-Luce hearing, the judge determines that impeachment will not be allowed, the process (save impeachment by convictions) will be repeated. If the reverse-Luce hearing is held and the defendant breaches his commitment to testify, the hearing testimony will be repeated for the jury. It is only in the rare situation in which the court, at the reverse-Luce hearing, determines that the defendant cannot be impeached and thereafter revises its decision after the defendant has testified in the jury’s presence and a mistrial has been declared that a reverse-Luce hearing could be said to be more efficient; an efficiency that pales in significance when measured against the virtual certainty of a revers e-Luce hearing in every case.

In sum, we are persuaded that the need and rationale for the Luce rule are applicable in Michigan. We hold that a defendant must testify in order to preserve for review the issue of improper impeachment by prior convictions.

n

The second issue to be decided is whether to apply today’s decision retroactively. The federal courts have split on the question whether to apply Luce retroactively. In United States v Givens, 767 F2d 574 (CA 9, 1985), the Ninth Circuit held that Luce would not be applied retroactively. In determining whether to give retroactive effect to a decision, the federal courts consider: 1) whether the decision establishes a new principle of law, 2) whether retroactive application will promote or retard the purposes of the rule, and 3) whether applying the new decision will produce substantial inequitable results. Chevron Oil Co v Huson, 404 US 97, 106-107; 92 S Ct 349; 30 L Ed 2d 296 (1971). According to the Givens court:

Luce established] a new principle of law which would, if applied retroactively, wreak a substantial inequity by precluding [the defendant] from challenging the admissibility of proof of his prior convictions. Although application of the Luce principle to the present case arguably would further the purpose of the rule by providing the trial court with concrete testimony on which to base its ruling . . ., the first and third factors militate so strongly against retroactive application that they outweigh the second factor. [Givens, supra at 578.]

The Givens Court recognized the inequity of applying Luce retroactively in a case where the defendant had relied on the law extant at the time of his trial by expressing his intention to testify if his motion in limine was granted and by stating the nature of his expected testimony. Since the defendant had done everything required at the time of his trial to preserve the issue, the court determined that, as a matter of fairness, Luce would not be applied to bar review.¹⁰_

Conversely, in United States v Dunbar, 767 F2d 72 (CA 3, 1985), the Third Circuit determined that Luce would be applied retroactively. Applying the Chevron factors, the court determined that Luce did not establish a new procedure by which to preserve the issue because other circuits had already adopted the requirement at the time of the defendant’s trial. Id. at 74. See, e.g., United States v Luce, 713 F2d 1236 (CA 6, 1983). Thus, the defendant could not be said to have been surprised by the Luce decision. The court also determined that the purpose of the Luce rule — to reduce speculative appellate review — would be advanced by applying the rule in that case. Finally, the court determined that applying Luce retroactively resulted in no hardship to the defendant "since he had the opportunity to testify and could not have been relying on any existing law to the effect that he would be permitted to appeal.” Dunbar, supra at 75. At trial, the defendant did not testify, nor did he state his intention to testify in the event that he was successful in excluding his prior record.

We discussed the retroactive application of Luce in Allen, supra at 638:

This Court has held that three factors must be considered in determining whether a judicially created rule of law should be applied retroactively.

[1] the purpose of the new rule,

[2] the general reliance on the old rule, and

[3] the effect on the administration of justice.

[People v Nixon, 421 Mich 79, 85; 364 NW2d 593 (1984).]

I believe that the defendants’ reliance on the old rule outweighs other considerations favoring retroactive application. The defendants have done everything necessary to preserve the issue under the old rule. Adoption of the Luce rule was not even reasonably foreseeable at the time of their trials. Under these circumstances, I believe it would be unduly harsh to apply the Luce rule to these defendants. Therefore, I would apply the rule only prospectively, i.e., to trials beginning after this decision is final. [Riley, C.J., dissenting.]

In this case, defendant did not do all that was required to preserve the issue. Recently, the Court of Appeals expressly held that absent a statement of intention to testify in the event that prior convictions are excluded, and an outline of the nature of the expected testimony, a defendant waives appellate review of the issue. People v Richard Johnson, 167 Mich App 637; 423 NW2d 300 (1988). While Richard Johnson was decided approximately three years after defendant’s trial in this case, the Court relied upon cases which had been decided well before defendant’s trial. See People v Casey, 120 Mich App 690; 327 NW2d 337 (1982), and People v Ferrari, 131 Mich App 621; 345 NW2d 645 (1983). Furthermore, in People v Jones, 98 Mich App 421; 296 NW2d 268 (1980), decided approximately five years before defendant’s trial, the Court cited the Cook procedure with approval. In People v Thomas Johnson, 133 Mich App 150; 348 NW2d 716 (1984), the Court declined to review the impeachment issue where the defendant did not outline the nature of his expected testimony. In addition, the Thomas Johnson Court cited Casey, supra, and People v Wilson, 107 Mich App 470; 309 NW2d 584 (1981), which both discussed the Cook requirement approvingly.¹¹

In People v Wakeford, 418 Mich 95; 341 NW2d 68 (1983), this Court, in dicta, noted the Cook procedure, and, while declining to require an offer of proof, stated that such a procedure "has much to commend it.” Id. at 117. In the absence of a proffer from the defendant, the Court declined to speculate on the effect the defendant’s decision not to testify had on the decisional process.

Thus, in light of the decisions in the Court of Appeals and this Court, it cannot be argued that defendant was relying on prior law in preserving the issue. This factor distinguishes the instant case from Allen in which the defendants had done everything necessary at the time to preserve the issue.¹² Therefore, application of Luce retroactively in this case will not result in the undue harshness which would have resulted from retroactive application in Allen.

We hold that the Luce rule will apply in any case tried after the release date of this opinion. We further hold that, in cases now pending on appeal, review of the impeachment issue is preserved: 1) if the defendant had in fact testified at trial, or 2) if the defendant had expressed his intention to testify in the event his prior record was excluded and had stated the nature of his expected testimony. In the instant case, defendant did not testify, nor did he express his intention to testify or outline the nature of his proposed testimony. Thus, defendant has waived review of the issue.

CONCLUSION

We find that the rationales underlying the Luce rule are equally applicable to Michigan practice, and hold that to preserve the issue of improper impeachment by prior convictions, the accused must testify at trial. The rule adopted today will apply in any case tried after the date of this opinion. Furthermore, in cases now pending on appeal, review of the impeachment issue is preserved: 1) if the defendant had in fact testified at trial, or 2) if the defendant had expressed his intention to testify in the event his prior record was excluded and had stated the nature of his expected testimony. In the instant case, defendant did not testify, nor did he express his intention to testify or outline the nature of his proposed testimony. Thus, defendant has waived review of the issue. We affirm the decision of the the Court of Appeals.

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

1 FRE 609(a) provides:

(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.

2 See the cases cited in Allen, supra at 637, n 14. See also People v Whitehead, 116 Ill 2d 425; 508 NE2d 687 (1987); Reed v Commonwealth, 366 SE2d 274 (Va App, 1988); but see State v Whitehead, 104 NJ 353; 517 A2d 373 (1986) (reversing one of the cases cited in Allen, supra at 637, n 14).

3 At the time of trial in this case, MRE 609 provided in pertinent part:

General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if

(1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and

(2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination.

4 The relevant sections of MRE 609 now provide:

(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall not be admitted unless the evidence has been elicited from the witness or established by public record during cross-examination, and

(1) the crime contained an element of dishonesty or false statement, or

(2) the crime contained an element of theft, and

(A) the crime was punishable by imprisonment in excess of one year or death under the law under which the witness was convicted, and

(B) the court determines that the evidence has significant probative value on the issue of credibility and, if the witness is the defendant in a criminal trial, the court further determines that the probative value of the evidence outweighs its prejudicial effect.

(b) Determining probative value and prejudicial effect. For purposes of the probative value determination required by subrule (a)(2)(B), the court shall consider only the age of the conviction and the degree to which a conviction of the crime is indicative of veracity. If a determination of prejudicial effect is required, the court shall consider only the conviction’s similarity to the charged offense and the possible effects on the decisional process if admitting the evidence causes the defendant to elect not to testify. The court must articulate, on the record, the analysis of each factor. [429 Mich cv-cvi (1988).]

5 The Allen Court held that the "bright line” aspect of its decision would have only prospective application, taking effect March 1, 1988. Id. at 609. The clarified balancing test was to have limited retroactive application. Id.

6 The defendant is entitled under Allen to have the "effect on the decisional process if [he] does not testify” considered as a factor of prejudice in balancing whether or not to admit evidence of his prior convictions. 429 Mich 602. The instant decision will require the defendant to testify in order to obtain review of the impeachment question. The fact that a defendant did in fact testify should not be regarded as nullifying in the "effect on the decisional process” factor.

7 See n 1 for text of FRE 609(a).

8 Compare the jurisdictions surveyed in Allen, supra at 597-599, ns 19-27, with those cited at 637, n 14 (Riley, C.J., dissenting) and n 2 of this opinion.

9 Indeed, data in Kalven & Zeisel, The American Jury (Boston: Little, Brown & Co, 1923), establish that nine percent of defendants elect not to testify even though they have no record or their record has been suppressed.

10 The Givens court distinguished United States v DiMatteo, 716 F2d 1361 (CA 11, 1983), on this basis, stating that the defendant in DiMatteo did not rely on the law in effect at the time of his trial in attempting to preserve the issue for review. Givens, supra at 578.

In DiMatteo, the court reversed the defendant’s conviction on the basis of an erroneous decision regarding the impeachment of one of defendant’s witnesses under FRE 608(b). The defendant did not call that witness at trial. The United States Supreme Court vacated the original DiMatteo decision and remanded for reconsideration in light of Luce.

The Givens decision was released on July 29, 1985. It appears that the Givens court was unaware that the decision in DiMatteo (On Remand), 759 F2d 831 (CA 11, 1985), was released May 6, 1985, in that the Givens court makes no reference to the later DiMatteo opinion. Givens cites only the original DiMatteo decision and remand order from the United States Supreme Court. On remand, the DiMatteo court determined that the Luce rule applies to review of decisions under FRE 608(b) as well as FRE 609(a).

11 Compare the above cases with People v Prey, 168 Mich App 310; 424 NW2d 43 (1988), in which the Court declined to apply the Luce rule in the absence of a definitive answer from this Court in Allen, supra. However, Frey does not indicate whether the defendant had followed the Cook procedures.

12 The discussion in Allen reveals that defendants Pedrin and Allen proffered to the trial court the expected nature of their testimony. See Allen, supra at 646-647 (Riley, C.J., dissenting). Defendants Gray and Brooks testified at trial. Id. at 624-625.