People v. Brown
Decision Date | 26 March 1973 |
Docket Number | Docket Nos. 12588,No. 1,12767 and 12700,1 |
Citation | 206 N.W.2d 730,45 Mich.App. 505 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herbert BROWN, Defendant-Appellant, PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Raymond HICKS, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert Tyrone ALLENSWORTH, Defendant-Appellant |
Court | Court of Appeal of Michigan — District of US |
Dalton A. Roberson, Harrison, Friedman & Roberson, Detroit, for brown.
Robert F. Mitchell, Jr., and Thomas J. Olejnik, Detroit, for Hicks.
Theodore Stephens, Detroit, for Allensworth.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas P. Smith, Asst. Pros. Atty., for plaintiff-appellee.
Before J. H. GILLIS, P.J., and BASHARA and O'HARA, * JJ.
These are appeals of right by defendants from jury convictions of first-degree felony murder, M.C.L.A. § 750.316; M.S.A. § 28.548. The cases have been joined here for review.
We have examined the many assignments of error and those which we believe control may thus be characterized:
To what extent if any did the rulings of the trial judge as to the people's examination of their witness Larry Kent offend against the holding in People v. Thomas, 359 Mich. 251 (102 N.W.2d 475) (1960)?
In substance Thomas, supra, held that refreshing the recollection of a witness by reference to a prior statement cannot by extension become an actual impeachment without laying a proper foundation for such impeachment.
In the case at bar there is no doubt that the prosecuting attorney sought to expose the difference between Kent's trial testimony and his previous statement to the police. He attempted to do the same thing with the witness's testimony at the preliminary examination. The witness contended he could not remember either clearly or that he was not sure. At this point it was the prosecution's right and obligation to bring out the inconsistency. Under ample case precedent and eminent textbook authority he was entitled to do so. As far back as 1852 our Supreme Court put the matter very succinctly. 1 First, the Court discusses the prior rule that there must be an express denial by the witness of the statements imputed to him. Our Court then observed:
Smith v. People, Mich. 415, 417--418 (1852). 2
Later cases strengthen this holding, Higdon v. Kelley, 339 Mich. 209, 217, 63 N.W.2d 592, 596 (1954), quotes Hickory v. United States, 151 U.S. 303, 309, 14 S.Ct. 334, 336, 38 L.Ed. 170, 174 (1893).
'When a party is taken by surprise by the evidence of his witness, the latter may be interrogated as to inconsistent statements previously made by him for the purpose of refreshing his recollection and inducing him to correct his testimony; and the party so surprised may also show the facts to be otherwise than as stated, although this incidently tends to discredit the witness.' See also Higgins v. Monroe Evening News, 42 Mich.App. 301, 201 N.W.2d 665 (1972).
For the effect of very recently decided Hileman v. Indreica, 385 Mich. 1, 187 N.W.2d 411 (1971), and illuminating comments on the distinction between impeachment and 'jogging memory' the interested may refer to 18 Wayne L.Rev. 101, 108--112 (1971).
We deem it unwise in this case to write extensively to this point. Kent was a res gestae witness and could have been impeached by the prosecution in any event.
The other substantial error claimed is the admissibility of hearsay testimony. It would prolong this opinion unduly to review the whole fact situation which gave rise to the remark which was admitted. It was ascribed to a witness who did not testify, and what she was supposed to have said was repeated by another witness. The witness testifying claimed that after the double killing when all of the involved people reassembled at a different location, defendant Brown, without saying anything, held up three fingers. The witness Harris asked another woman present what the gesture or sign meant. The third person is supposed to have said 'three of them were dead'. If there is such a thing as triple hearsay this would be a prime example thereof. It was error. The prosecution should not have asked the question. Too often overzealousness on the part of the...
To continue reading
Request your trial-
People v. Allensworth
...of William Thigpen, Jr., in the City of Detroit. After the Court of Appeals affirmed defendant's conviction in People v. Brown, 45 Mich.App. 505, 206 N.W.2d 730 (1973), defendant asked the Court to consider by a delayed appeal the issue whether the trial court reversibly erred in instructin......
-
People v. Heard, Docket No. 17691
...impeached with prior inconsistent statements, even if he does not remember them, once the proper foundation is laid. People v. Brown, 45 Mich.App. 505, 206 N.W.2d 730 (1973); People v. Rodgers, 36 Mich.App. 211, 193 N.W.2d 412 (1971); Rodgers v. Blandon, 294 Mich. 699, 294 N.W. 71 (1940); P......
-
People v. Scott
...Hill v. Harbor Steel and Supply Corp., supra; People v. Coates, 40 Mich.App. 212, 214, 198 N.W.2d 837 (1972); People v. Brown, 45 Mich.App. 505, 506--509, 206 N.W.2d 730 (1973). ...