People v. Brown

• Decision Date: 30 January 1969
• Docket Number: No. 2,Docket No. 3133,2
• Citation: 15 Mich.App. 600,167 N.W.2d 107
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Virgil BROWN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 107

167 N.W.2d 107

15 Mich.App. 600

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Virgil BROWN, Defendant-Appellant.

Docket No. 3133.

Court of Appeals of Michigan, Division No. 2.

Jan. 30, 1969.

Released for Publication May 1, 1969.

Robert A. Folen, Flint, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Asst. Pros. Atty. Genessee County, Flint, for appellee.

Before FITZGERALD, P.J., and R. B. BURNS and ROBINSON, ^* JJ.

FITZGERALD, Presiding Judge.

Defendant was convicted of armed robbery ¹ on May 18, 1965, following a jury trial in Genesee county and was sentenced to 10 to 30 years. A motion for new trial was filed and was denied on September 13, 1965. On the latter date, trial counsel was appointed by the court to institute further post-conviction proceedings on behalf of defendant.

Defendant was originally charged together with Jesse McDaniel with the armed robbery in question. McDaniel testified against defendant at the preliminary examination and pleaded guilty and was sentenced prior to defendant's trial. The people called McDaniel to testify at trial but he could remember nothing but his name and the fact that he got a 20- to 30-year sentence ('I can't recall nothing since I got twenty to thirty.').

One of the things McDaniel couldn't remember was his testimony at the preliminary examination, even after he was given the transcript to refresh his recollection. Thereupon, claiming the right to impeach, the prosecution read to McDaniel in the presence of the jury certain of the questions asked him at the examination and his answers. In this way, it was established that McDaniel had testified that he was with defendant on the night in question and that they had robbed the store in question.

Defense counsel objected to use of the preliminary examination testimony and requested the court to include in its charge to the jury an instruction that 'the questions put to this witness by the prosecution are not evidence and may not be considered by you in your deliberations.' Aside from a remark to the prosecutor not to stray beyond legitimate impeachment, the court did not instruct the jury either during trial or in its charge that use of the preliminary examination testimony was only for impeachment purposes and could not be considered as substantive evidence.

The court's refusal to so instruct the jury was raised in the motion for new trial. The trial court, in rejecting the contention, held that the prosecutor could impeach its own witness because of the provisions of C.L.1948, § 767.40a (Stat.Ann.1954 Rev. § 28.980(1)):

'Witnesses whom the people are obliged by law to call as Res gestae witnesses may be impeached the same as though such witnesses had been called by the respondent.'

The trouble with this argument is that the witness in question was an accomplice to the crime. The rule requiring the people to indorse on the information and call all Res gestae witnesses does not apply to accomplices. People v. McCullough (1890), 81 Mich. 25, 34, 45 N.W. 515; People v. Resh (1895), 107 Mich. 251, 253, 65 N.W. 99; People v. Knoll (1932), 258 Mich. 89, 98, 242 N.W. 222. Since the people were not obligated by law to call this witness, the statute grants no right to impeach him.

For the purpose of impeachment, evidence is generally admissible to show previous contradictory or inconsistent statements. Thus, if a person denies having made a previous contradictory statement, the statement itself may be used for impeachment. 1 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 438. It is not so clear whether a witness who states at trial that he cannot recall certain facts or cannot recall giving a prior inconsistent statement can be similarly impeached. Smith v. People (1852), 2 Mich. 416, held that the prior inconsistent statement was admissible for impeachment under such circumstances. The case is relied on by the prosecution and cited with approval by Gillespie in § 438, p. 540.

On the other hand, the Court in People v. Durkee (1963), 369 Mich. 618, 120 N.W.2d 729, faced the same issue and quoted with approval foreign precedent ² that 'where a witness merely states that he does not remember he cannot be impeached by the showing of former statements regarding the facts which he claims not to have remembered.' In the subsequent case of Hill. v. Harbor Steel & Supply Corporation (1965), 374 Mich. 194, 215, 132 N.W.2d 54, the Durkee Case was said to stand for the abovequoted principle. Actually, the Court in Durkee reversed on another, although related, ground: failure to instruct the jury that the previous inconsistent statement could not be considered as substantive evidence (369 Mich. at 627, 120 N.W.2d 729). Yet Durkee must be viewed as opening to serious question the use at trial of previous statements of a witness who, as herein, testifies he cannot recall making them. ³

There is, however, no question that the court should instruct the jury that previous statements of witnesses which are used for impeachment purposes may not be considered as substantive evidence. See People v. Jones (1965), 1 Mich.App. 633, 137 N.W.2d 748, and People v. Pena (1966), 3 Mich.App. 26, 141 N.W.2d 677. Failure to do so is reversible error (People v. Durkee, Supra), and this has been held to be so irrespective of whether such an instruction was requested. People v. Eagger (1966), 4 Mich.App. 449, 145 N.W.2d 221. Thus, it cannot be said that the court was excused because defendant's proposed instruction was poorly worded (which it was) or that the court's ruling on the scope of impeachment sufficiently cautioned the jury (which it did not).

A further meritorious contention of defendant relates to the instruction given the jury relative to the defense of alibi. That the defendant, upon request, is entitled to a charge on alibi goes without question. People v. Nawrocki (1967), 8 Mich.App. 225, 154 N.W.2d 45. The instruction given by the court, however, while it related to alibi and its use as a defense, presented a lopsided view of that defense, in the following words:

'In this action the defendant has presented a claim that tends to show an alibi. That is a defense that is legitimate. If it is true that this defendant was not at the place where this crime was committed, that should be and would be a perfect defense, but, in the consideration of that class of defense it is necessary for you to take into consideration the facts, and it is your duty as jurors to examine carefully the evidence on that point. Scrutinize any evidence in relation to alibi. An alibi is a defense that is easily proven and hard to disprove; therefore, you will be careful and cautious in examining the evidence bearing upon the question of alibi. If it is established and you believe the evidence that the party was not in a position so he could have committed the crime, of course, that would be...