People v. White, Docket Nos. 70235

• Decision Date: 22 February 1985
• Docket Number: 71641,Docket Nos. 70235
• Citation: 363 N.W.2d 702,139 Mich.App. 484
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leon Charles WHITE, Defendants-Appellants. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jose Anthony SANTANA, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 702

363 N.W.2d 702

139 Mich.App. 484

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leon Charles WHITE, Defendants-Appellants.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jose Anthony SANTANA, Defendants-Appellants.

Docket Nos. 70235, 71641.

Court of Appeals of Michigan.

Submitted April 17, 1984.

Decided Oct. 25, 1984.

Release for Publication Feb. 22, 1985.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty. and Jeffrey Caminsky, Asst. Pros. Atty., for the People.

Angela Palmieri, Garden City, for defendant-appellant Santana.

Matthew Posner, Detroit, for defendant-appellant White.

Before SHEPHERD, P.J., and BEASLEY and CAPRATHE, ^* JJ.

PER CURIAM.

Defendants, Jose A. Santana and Leon C. White, and Edward Patrick were originally charged with kidnapping, criminal sexual conduct in the first degree, and armed robbery. Their first trial ended with a hung jury. Their second trial ended in defendant White's conviction for kidnapping and defendant Santana's conviction for kidnapping and assault with intent to commit criminal sexual conduct. The kidnapping convictions were reversed on appeal by this Court. (Docket Nos. 52868, 53171. Decided July 9, 1982 [unreported]. Following their third joint trial, defendants White and Santana were both convicted of kidnapping. Defendant Santana was sentenced to a prison term of from 5 to 15 years and defendant White to a term of from 10 to 15 years. Charges against Edward Patrick were dismissed in exchange for his agreement to testify at trial, although the prosecutor did not ultimately call Patrick as a witness. Defendants White and Santana both appeal as of right.

Defendant White's principal argument on appeal is that his testimony was improperly impeached, essentially because the prosecutor failed to establish a foundation for statements attributed to him and used to impeach him. We disagree.

When attempting to impeach a witness with a prior inconsistent statement made by that witness, "a proper foundation must be laid by interrogating the witness as to the time and place of the statement and the person to whom it was alleged to have been made". People v. Claybon, 124 Mich.App. 385, 399, 335 N.W.2d 493 (1983); MRE 613. Once a foundation is properly laid and the witness either admits or denies making the statement, the witness may be impeached by proof of that statement. Claybon, supra.

Defendant White relies on MRE 613 and this Court's decisions in People v. Lynn, 91 Mich.App. 117, 283 N.W.2d 664 (1979), aff'd sub nom. People v. Barker, 411 Mich. 291, 307 N.W.2d 61 (1981); People v. Martin, 75 Mich.App. 6, 254 N.W.2d 628 (1977), lv. den. 402 Mich. 881 (1978), and People v. Dozier, 22 Mich.App. 528, 177 N.W.2d 694 (1970), lv. den. 383 Mich. 826 (1970), for the proposition that once a witness denies a statement, the proof of that statement must be made through another witness. Although in the above cases this Court held that it was proper to call another witness to the stand to testify as to the statement denied by the first witness, this Court did not make this procedure mandatory. Furthermore, MRE 613 would appear to require actual proof of the statement itself only where the impeaching party seeks to admit the statement into evidence.

MRE 613 provides as follows:

"(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, if written the statement must be shown to the witness and if oral, its substance and the time, place, and person to whom the statement was made must be disclosed to the witness, and on request must be shown or disclosed to opposing counsel.

"(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2)."

In the instant case, the prosecutor initially showed defendant White a written copy or "transcript" of the alleged oral colloquy between White and a Canton police officer and read aloud some of the questions and answers contained therein:

"Q. [Prosecutor ]: Mr. White, I'm going to ask you to read the last four questions in that document to yourself on page 13.

"A. [Defendant White ]: Okay.

"Q. [Prosecutor ]: I'm going to ask you, sir, whether or not you made these statements to the officer you spoke to, Lt. [sic ] Stewart.

"Question: 'How did she get bloody?'

"Answer: 'I don't know.'

"Question: 'Leon. Leon.'

"Answer: 'I know Jose had my chuks [nunchaku, a wooden weapon used in Karate].'

* * *

* * *

"Q. [Prosecutor ]: Question: 'He hit her with your chuks?'

"Answer: 'Ah, ah, ah.'

"Question: 'With, with your chuks. And how did they get in her car?'

"Answer: 'Jose put them in there. They were in Jose's car. I had them wrapped in newspaper and when we got out of Jose's car, he had them in his hand. And all I remember is they were--I didn't even see them when they were in her car. I didn't even see them, but I heard the chains, though.' "

The prosecutor complied with the requirements of MRE 613(a). The written version of the statement was shown to White and he was informed of the substance, the time and place of the statement, and the identity of the person to whom the statements were allegedly made. ¹ Although the prosecutor did not call to the stand the police officer identified as the taker of the statement, the prosecutor did not seek to admit the written copy of the statement into evidence under MRE 613(b). He was therefore not required to call the officer to the stand, as he complied with the foundational requirements for impeachment pursuant to MRE 613(a) and simply allowed White's denial that he made the statement to go unrebutted. The jury was free to take into account the prosecutor's failure to rebut White's denial. They were informed by the trial court that the statement itself was not proof that it was from an actual transcript if defendant White denied its accuracy, that it was not evidence, that evidence comes only from answers and not from questions. Furthermore, it is clear from the colloquy between the court and counsel in the presence of the jury that the court was saying that, unless the defendant admitted the statement or unless the prosecutor brought in other proof that defendant White made the statement, the alleged statement had no evidentiary value at all. Apparently, all parties decided to do nothing further with the statement since it was not referred to again. We are satisfied that the requirements of MRE 613 were met and that there was no prejudice. ²

Although none of the remaining issues raised by defendant White warrants reversal, we will discuss each briefly. Defendant White claims that the trial court improperly instructed the jury on the elements of kidnapping when it merely read the statute and failed to include the element of asportation in its preliminary, pre-proof instructions. It is clear, however, that the trial court did correctly instruct the jury on the asportation element at the close of proofs. The jury was therefore properly charged at the necessary time. Jury instructions are to be read in their entirety and not taken out of context or considered in isolated segments. People v. Dozier, supra; People v. Benevides, 71 Mich.App. 168, 247 N.W.2d 341 (1976). The trial court here charged the jury that asportation was a required element of kidnapping and that the movement had to be independent of any other crime. People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973); People v. Barker, 411 Mich. 291, 307 N.W.2d 61 (1981). The jury was therefore properly instructed.

The trial court's allowance of the prosecutor's definition of kidnapping to the jury, which omitted the asportation element, despite White's urging to the contrary does not require reversal. First, defendant White did not object to the comments. Second, the trial court informed the jury during instructions that the prosecutor's definition of kidnapping was incomplete. Since any error was not objected to and was subsequently corrected, and since the jury was aware that it was the trial court's function to give instructions, which it did, we find no reversible error.

Defendant White next argues that the trial court erred in sustaining the prosecutor's objection to defense counsel's attempt to instruct the jury on asportation during closing argument. It is, however, the trial court's function to instruct the jury on relevant law, not counsels' responsibility. People v. Lambert, 395 Mich. 296, 304, 235 N.W.2d 338 (1975). Where defense counsel is prohibited by the trial court from giving a direct presentation of the law, counsel has not been unduly restricted by the court. People v. Giacalone, 23 Mich.App. 163, 179, 178 N.W.2d 162 (1970), lv. den. 383 Mich. 786 (1970). In the instant case, we find no error. Defense counsel was not precluded from stating the law as he interpreted it; he was merely prevented by the trial court from reading the applicable jury instructions to the jury. This restriction was well within the province of the trial court. M.C.L. Sec. 768.29; M.S.A. Sec. 28.1052.

Next, defendant White argues that the trial court erred in refusing a continuance so that White could obtain copies of transcripts from previous trials. Defense counsel's initial motion for adjournment was denied by the circuit court chief judge. Subsequently, White himself requested a continuance from the trial court immediately before jury selection. This request was denied. We agree with the trial court that defendant had considerable time between trials to examine the transcripts....