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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v NICHOLAS JEROME SEALS, Defendant-Appellant,

FOR PUBLICATION July 14, 2009 9:00 a.m. No. 282215 Kent Circuit Court LC No. 2007-003896-FC

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v LEWIS ALEXANDER SEALS, Defendant-Appellant. No. 282216 Kent Circuit Court LC No. 2007-003945-FC Advance Sheets Version

Before: Wilder, P.J., and Meter and Servitto, JJ. PER CURIAM. In these consolidated appeals, defendants appeal as of right their jury trial convictions of felony murder, MCL 750.316(b). We remand Docket No. 282215 to the trial court for the purpose of correcting defendant Nicholas Seals's judgment of sentence, but affirm both cases in all other respects. Defendants were charged in connection with the 1996 shooting death of George Powell. In November 1996, defendants, along with another individual, broke into the home Mr. Powell shared with his roommate, Marlon Jackson, believing that no one was present in the home. Defendants and their accomplice apparently intended to steal whatever drugs and money they could find. When it was discovered that Mr. Powell was at home, defendant Lewis Seals shot and killed him.

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Docket No. 282215 On appeal, defendant Nicholas Seals first contends that the prosecution's use of his alleged involuntary investigative subpoena testimony, to impeach his credibility, violated his right against compelled self-incrimination and his rights to due process. We disagree. Defense counsel objected to the admission of the investigative subpoena testimony on the basis that it was inadmissible as other "bad acts" under MRE 404(b). However, there was no objection to the admission of the evidence based on the constitutional issue now raised. Because this constitutional issue was not preserved, we review it for plain error affecting substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). To avoid forfeiture of a nonpreserved constitutional error under the plain error rule, three requirements must be met: (1) error must have occurred, (2) the error was plain, i.e., clear or obvious, (3) and the plain error affected substantial rights. Id. at 763. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. Id. Even if a defendant satisfies these three requirements, reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity, or public reputation of judicial proceedings. Id. at 764-767. We review a trial court's decision to admit evidence for abuse of discretion; however, we review de novo a preliminary question of law involved in that decision. People v McDaniel, 469 Mich 409, 412; 670 NW2d 659 (2003). Here, Detective Erik Boillat testified that he questioned Nicholas J. Seals twice, under oath, pursuant to an investigative subpoena in October 2006. According to Boillat, Nicholas Seals denied any knowledge of the murder, denied any connection with drugs at the time of the murder, and denied any connection with guns. Detective Boillat also testified about contacts with defendant both before and after the murder, including one where Nicholas Seals was found to be in possession of marijuana and one where he had accidentally shot himself. The recorded investigative subpoena testimony was played for the jury at trial. Defendant first asserts that use of the investigative subpoena testimony to impeach him, when he did not testify at trial, was improper. We disagree. A prosecutor may, in certain instances, offer evidence that an exculpatory statement is false as circumstantial evidence of guilt. People v Dandron, 70 Mich App 439, 442; 245 NW2d 782 (1976). Substantive use of "proved-to-be false exculpatory statements" is not a novel idea in this state: Defendant has no claim to be protected against the exposure of this falsehood where he indulges in it for his own exculpation. He runs the risk of this exposure when he invents a false defense. *** . . . Thus, it may be shown that he made false statements for the purpose of misleading or warding off suspicion; though these are by no means conclusive of guilt, they may strengthen the inferences arising from other facts. [People v Arnold, 43 Mich 303, 304-305; 5 NW 385 (1880).] -2-

"[T]he Dandron [supra] holding is even more applicable to prior false testimony than to false statements made to police." People v Wackerle, 156 Mich App 717, 721; 402 NW2d 81 (1986). "If a prosecutor may use a defendant's `proved-to-be false exculpatory statements' as evidence of guilt, then it follows that the prosecutor must be afforded the opportunity to establish the falsity of defendant's statements." Id. at 722. While the majority of cases discussing the use of a defendant's prior statements concern statements provided to the police or at another trial, in this case defendant was under oath, was advised that he could have counsel present, and was advised of his Fifth Amendment privilege before he provided statements in an effort to exculpate himself. He was afforded essentially the same protections as defendants in the relevant caselaw. Because defendant elected to make an alleged exculpatory statement to the police, the prosecutor had to be afforded the opportunity to establish the falsity of his statements. Wackerle, supra. Defendant also asserts that his testimony pursuant to the investigative subpoena was involuntary and that its use against him for any purpose violated his right against compelled selfincrimination. We disagree. It is well established that a defendant's testimony in a former unrelated proceeding is admissible as substantive evidence, absent an indication that the prior testimony was given under compulsion. People v Ewing, 99 Mich App 110, 114; 297 NW2d 628 (1980). This result is consistent with the evidentiary rule that statements or admissions by an accused, either before or after the commission of a crime or before or after his arrest, are admissible if they are voluntary. People v Plato, 114 Mich App 126, 134-135; 318 NW2d 486 (1981). MCL 767A.5 provides, in part: (1) A person properly served with an investigative subpoena under this chapter shall appear before the prosecuting attorney and answer questions concerning the felony being investigated or produce any records, documents, or physical evidence he or she is required to produce. (2) The prosecuting attorney may administer oaths and affirmations in the manner prescribed by law to implement this chapter. (3) Any person may have legal counsel present in the room in which the inquiry is held. The person may discuss fully with his or her legal counsel any matter relating to the person's part in the inquiry without being subject to citation for contempt. (4) The prosecuting attorney may require a person having knowledge of any records, documents, or physical evidence subpoenaed under this chapter to testify under oath or acknowledgment with respect to those records, documents, or physical evidence. (5) The prosecuting attorney shall inform the person of his or her constitutional rights regarding compulsory self-incrimination before asking any

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questions under an investigative subpoena. This subsection does not apply if the person is granted immunity under section 7. (6) If a criminal charge is filed by the prosecuting attorney based upon information obtained pursuant to this chapter, upon the defendant's motion made not later than 21 days after the defendant is arraigned on the charge, the trial judge shall direct the prosecuting attorney to furnish to the defendant the testimony the defendant gave regarding the crime with which he or she is charged and may direct the prosecuting attorney to furnish to the defendant the testimony any witness who will testify at the trial gave the prosecuting attorney pursuant to this chapter regarding that crime except those portions that are irrelevant or immaterial, or that are excluded for other good cause shown. . . . There is no argument that defendant, before providing testimony pursuant to the subpoena, was not informed that he may have counsel present or informed of his constitutional rights regarding compelled self-incrimination. While defendant contends that his testimony was forced and involuntary, there were options available to him if he did not want to provide testimony. MCL 767A.6 provides, in part: (1) If a person files an objection to, or fails or refuses to answer any question or to produce any record, document, or physical evidence set forth in an investigative subpoena, the prosecuting attorney may file a motion with the judge who authorized the prosecuting attorney to issue the subpoena for an order compelling the person to comply with that subpoena. The prosecuting attorney shall serve notice of the motion under applicable court rules. (2) If the prosecuting attorney files a motion with the court for an order under subsection (1), the court shall hold a hearing on the motion. The person has the right to appear and be heard regarding the motion and to have legal counsel present. (3) If the court determines the question or evidentiary request of the prosecuting attorney is appropriate and within the scope of the authorization, the court shall order the person to answer the question or to produce the record, document, or physical evidence. (4) If the court determines the question or request is inappropriate or outside the scope of the authorization, the court may order the prosecuting attorney to modify the question or the request or may disallow the question or the request. (5) The court shall not compel the person to answer a question or produce any record, document, or physical evidence if answering that question or producing that record, document, or physical evidence would violate a statutory privilege or a constitutional right. . . .

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The fact that defendant did not take advantage of his opportunity to have the trial court determine whether he was required to respond to the investigative subpoena does not make his testimony forced. With respect to the Fifth Amendment, the privilege against compelled self-incrimination can be asserted in any proceeding and it protects against any disclosures that a witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used (i.e., that which would furnish a link in the chain of evidence needed to prosecute the claimant of the privilege). Hoffman v United States, 341 US 479, 486; 71 S Ct 814; 95 L Ed 1118 (1951); United States v Hubbell, 530 US 27, 38; 120 S Ct 2037; 147 L Ed 2d 24 (2000). As pointed out by defendant, immunity from use and derivative use of compelled testimony is coextensive with the scope of the privilege against self-incrimination: The [Fifth Amendment] privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being "forced to give testimony leading to the infliction of `penalties affixed to . . . criminal acts.'" Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness. [Kastigar v United States, 406 US 441, 453; 92 S Ct 1653; 32 L Ed 2d 212 (US Cal, 1972).] As indicated above, however, defendant's testimony was not "forced." Second, defendant denied any knowledge of or participation in the murder, any handling of guns, and any involvement with drugs. Defendant's testimony, then, was not incriminating. Nor did it lead to the disclosure of incriminating evidence. Detective Boillat testified about contact he had with defendant that involved guns and drugs around the time of the murder. At the time of defendant's testimony, the police had already spoken to two witnesses, including defendant's accomplice in the murder, Harold Hayes, and both disclosed that defendant was involved in the murder. By the time the police had taken testimony from defendant, they already had significant evidence against him and his testimony provided no link in the chain of evidence necessary to prosecute him. Given all these, defendant has failed to demonstrate that his investigative subpoena testimony led to the infliction of "penalties affixed to criminal acts" and thus violated his Fifth Amendment privilege. Likewise, while defendant is correct that involuntary confessions (which are of questionable trustworthiness) are not a proper foundation for impeachment (See People v Reed, 393 Mich 342, 355-356; 224 NW2d 867 [1975]), because defendant did not confess or incriminate himself in any way, his reliance on cases involving involuntary confessions is misplaced. In any event, in light of the other evidence presented, including accomplice testimony placing defendant at the murder scene with a gun in his hand, and police testimony concerning contacts with defendant involving guns and drugs, any error in the admission of the testimony would have been harmless. Defendant's investigative subpoena testimony was inconsequential to the ultimate resolution of the case.

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Defendant next argues that improper evidence of his character was admitted, through his investigative subpoena testimony, in violation of MRE 404(b). We review a trial court's decision to admit evidence for abuse of discretion. McDaniel, supra. MRE 404(b)(1) provides that "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." The admission of defendant's investigative subpoena testimony does not constitute an admission of other "bad acts" evidence. Because his testimony was exculpatory, what was admitted was defendant's denial of engaging in other bad acts. The application of MRE 404(b) to defendant's testimony is questionable. The admission of the defendant's testimony did lead to testimony by the police of other contacts with defendant when he had a gun and had drugs on his person. To the extent defendant is objecting to the admission of this testimony, we disagree that it violated MRE 404(b). As previously indicated, the prosecutor used defendant's testimony to establish that he lied to the police about whether he used drugs or handled guns thus reflecting a consciousness of guilt according to the prosecution. It does not appear that the evidence refuting his denials was offered to show action in conformity therewith. Evidence of other acts may be admitted to show proof of motive, opportunity, or intent. MRE 404(b). The prosecutor's theory of the case was essentially that defendant and his accomplices went to the home of a known drug dealer, believing him to be gone, with the intent of stealing whatever drugs and money the dealer had at the home. That defendant had previously bought or used drugs and had previously handled guns could be used to demonstrate motive and opportunity. Defendant next asserts that his conviction of first-degree felony murder must be vacated and that a conviction for second-degree murder must be entered because the statute of limitations applicable to the felony or felonies serving as the basis for the first-degree felony-murder conviction have expired. We disagree. Under MCL 750.316: (1) A person who commits any of the following is guilty of first degree murder and shall be punished by imprisonment for life: *** (b) Murder committed in the perpetration of, or attempt to perpetrate, arson, criminal sexual conduct in the first, second, or third degree, child abuse in the first degree, a major controlled substance offense, robbery, carjacking, breaking and entering of a dwelling, home invasion in the first or second degree, larceny of any kind . . . . The elements of first-degree (felony) murder are (1) the killing of a human being; (2) with the intent to kill, to do great bodily harm, or to create a high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result; (3) while committing, -6-

attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in MCL 750.316 . . . . [People v Hutner, 209 Mich App 280, 282-283; 530 NW2d 174 (1995).] An indictment for murder may be brought at any time. MCL 767.24(1). Indictments for seconddegree home invasion and larceny (or their attempt), however, must be brought within six years. MCL 767.24(5). As noted by defendant, the murder (and its underlying felonies) occurred in 1996 and defendant was not charged with first-degree murder until 2007. Clearly the statutory period of limitations in which to charge defendant with either larceny or second-degree home invasion had expired at the time charges were brought. Although couched in terms of a due process violation (of which there is none; defendant having not been charged with or convicted of either of the above felonies), defendant's actual arguments appear to be that (1) conviction for felony murder requires an actual conviction of the underlying felony, and (2) a statutory bar to prosecution of the underlying felony also bars a felony-murder conviction. Defendant, however, cites no authority for his apparent propositions, and we have found no binding authority that squarely addresses his concerns. Defendant's statute of limitations argument appears to present a question of first impression in Michigan.1 Other jurisdictions have addressed the very issue presented to this Court and have found that the expiration of the statutory period of limitations for a predicate felony does not serve as a bar to a conviction for first-degree felony murder. We find their analyses sound. Georgia has a first-degree felony murder statute similar to Michigan's. Under Ga Code Ann

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