People v. Bennett, 21

• Court: Supreme Court of Michigan
• Writing for the Court: T. G. KAVANAGH; FITZGERALD; COLEMAN
• Citation: 393 Mich. 445,224 N.W.2d 840
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Allen BENNETT, Defendant-Appellant. 393 Mich. 445, 224 N.W.2d 840
• Docket Number: No. 21,21
• Decision Date: 21 January 1975

Page 840

224 N.W.2d 840 PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Allen BENNETT, Defendant-Appellant. No. 21. 393 Mich. 445, 224 N.W.2d 840 Supreme Court of Michigan. Jan. 21, 1975.

Page 841

[393 MICH 447] William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, App. Dept., Luvenia D. Dockett, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Wilfred C. Rice, Detroit, for defendant-appellant.

Before the Entire Bench.

T. G. KAVANAGH, Chief Justice.

Allen Bennett was convicted by a jury of the first degree murder ¹ of Jerry Jimerson and the Court of Appeals affirmed his conviction.

On appeal he makes five assertions of error, only one of which is necessary to decision.

I.

The defendant asserts that he was denied a fair trial because the prosecutor was permitted, over objection, to allow Mathew Williams, as a rebuttal witness, to testify regarding the defendant who had been arrested and charged with this crime, '. . . I heard him saying that he had another fellow to kill when he get out'.

[393 MICH 448] To gain perspective on this incident it is appropriate to consider the following facts.

One prosecution witness had testified that he saw defendant hold a shotgun on the victim, was jumped by an unknown third party, heard a shot, saw the victim fall, and watched the defendant flee. Other witnesses testified the defendant and victim had fought on a previous occasion.

The police arrested the defendant, searched his attic, and found sawed-off parts of a shotgun.

After the people rested, the defense produced alibi witnesses who testified that the defendant was at home at the time of the shooting. The defendant took the stand and denied the shooting.

On cross-examination the defendant was asked if he had ever made a statement in jail to another person, 'That when you got out there was going to be some more murders?' He replied, 'No'.

After the defense rested, the people offered one rebuttal witness to contradict the alibi testimony and then presented witness Williams to rebut the defendant's denial that he had even said to anyone that when he got out there would be more killings or murders.

After considerable delay the trial court allowed the testimony saying: '. . . I am going to submit it to the jury for what it is worth, and if the jury believes it, it is an admission against interest and it might be part of a scheme.'

We are persuaded that this was error.

The court's reference to 'part of a scheme' was undoubtedly an oblique reference to M.C.L.A. § 768.27; M.S.A. § 28.1050. But the testimony was not offered under that statute and it was never claimed that there was a 'scheme'.

That it is 'an admission against interest' of course does not turn on whether the jury believes [393 MICH 449] it, but it does suggest the only

Page 842

proper basis upon which the evidence could be admitted.

However, under either of these descriptions--that it was an admission or part of a scheme--it would be admissible, only in the People's case in chief.

This rule and the reason for it were set forth by Justice Campbell in People v. Quick, 58 Mich. 321, 322--323, 25 N.W. 302 (1885), and quoted in People v. McGillen #1, 392 Mich. 251, 265--266, 220 N.W.2d 677 (1974).

The People did not respond to defendant's claim that the testimony of Williams was only admissible as part of the case in chief. Instead they contend that '(a)s Mathew Williams' testimony was admitted to rebut the prior testimony of the defendant, the trial magistrate did not abuse (his) discretion in permitting it to stand . . .'

This argument misconceives the office of rebuttal. Rebuttal is limited to the refutation of relevant and material evidence--hence evidence...