People v. Brownridge
| Decision Date | 02 September 1997 |
| Docket Number | Docket No. 183507 |
| Citation | 570 N.W.2d 672,225 Mich.App. 291 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee/Cross-Appellant, v. Glen Dale BROWNRIDGE, Defendant-Appellant/Cross-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Jeffrey C. Middleton, Prosecuting Attorney, and Douglas K. Fisher, Chief Assistant Prosecuting Attorney, Centreville, for People.
Bellanca, Beattie and De Lisle, P.C. by Frank D. Eaman and Lawrence J. Paolucci, Harper Woods, for Defendant-Appellant/Cross-Appellee.
Before NEFF, P.J. and SMOLENSKI and D.A. ROBERSON *, JJ.
Defendant appeals as of right his convictions of conspiracy to commit arson, M.C.L. § 750.157a; M.S.A. § 28.354(1), and arson of a dwelling, M.C.L. § 750.72; M.S.A. § 28.267, for which he was sentenced to eleven months' imprisonment and ordered to pay restitution. We reverse and remand for a new trial.
The prosecutor's theory of the case was that defendant induced Raymond Turner (hereafter Turner) to set fire to a house in Three Rivers that defendant was purchasing on land contract. The fire chief and a state police fire marshal established that the fire was arson, probably started by flammable liquids on the front porch. Turner's body was found in a river near the house two days after the fire. A pathologist established the cause of death as drowning.
Turner's wife, Deanna Turner, testified that on the day before the fire Turner drove with defendant to defendant's house for a conversation, and returned approximately fifteen minutes later. Turner told Deanna that defendant had asked him to burn down a house in Three Rivers, and that Turner was going to do it because he needed the money. Deanna testified that Turner told her that defendant had given him money to buy gasoline. Deanna testified that she tried, unsuccessfully, to dissuade Turner from setting the fire.
Turner's brother, Scott Turner, testified pursuant to an agreement with the prosecutor in which the thirty years' imprisonment he faced as an habitual offender for his part in the commission of the arson would be reduced to two years' probation. Scott testified that on the night of the fire, Turner told him that he needed help burning down a house for the insurance money. Scott testified that when he could not talk Turner out of committing the arson, he drove Turner toward defendant's house and dropped him off.
Sergeant Earl Stark of the Three Rivers Police Department testified regarding his investigation of the fire and the finding of Turner's body. Stark testified that he obtained statements from both Deanna and Scott, both of which implicated defendant in the arson. At trial, the defense theory was that Stark, the lead investigator, had a personal dislike for defendant and that he threatened Scott into implicating defendant and that Stark also convinced Deanna to accuse defendant of asking Ray Turner to commit the arson.
Defendant argues that the trial court erred in refusing to allow the defense to present evidence regarding Stark's credibility. We find that the trial court abused its discretion in limiting defendant's presentation of character evidence and that this error warrants reversal of defendant's convictions.
Stark testified on cross-examination that he had a reputation for truthfulness. Defendant then sought to challenge this testimony by asking Stark about a specific instance in which Stark allegedly falsified an affidavit in support of an arrest warrant in an unrelated case. The trial court refused to permit this line of questioning.
Defendant also sought to present the testimony of Michael Costello, one of Stark's fellow officers. Costello would have rebutted Stark's testimony that Stark has a reputation for truthfulness in the community and would have described the circumstances surrounding the alleged false affidavit. Costello also would have criticized Stark's investigative methods, particularly those surrounding his obtaining of Scott's confession and his interview with Deanna. The trial court excluded Costello's proposed testimony.
At issue here is the applicability of MRE 608, which provides in relevant part as follows:
(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
We have reviewed carefully Costello's 1 proposed testimony and find that the trial court's decision to exclude it was an abuse of discretion. Under MRE 608(a), it was appropriate for Costello to offer opinion evidence regarding Stark's credibility and to testify regarding Stark's reputation for truthfulness.
We further find that it was an abuse of discretion to limit defendant's cross-examination of Stark regarding the alleged false affidavit. Although MRE 608(b) prohibits the admission of extrinsic evidence regarding specific instances of Stark's conduct, the rule clearly permits the cross-examination of Stark regarding such matters.
The prosecution concedes that Costello's testimony would have been relevant pursuant to rule 608(a). It insists, however, that the testimony was properly excluded under MRE 403, which provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
The prosecution suggests that because Stark was not an eyewitness to the alleged offenses, his role was "merely investigative" and his "personal credibility is tangential at best."
This argument misses the mark. Although not an eyewitness to the alleged arson, Stark was instrumental in gathering evidence and interviewing witnesses. Stark obtained both Scott Turner's confession and Deanna Turner's statement, the veracity of which was hotly contested at trial. Stark's method of gathering evidence was at issue here; thus, the excluded evidence had significant probative value and its omission may well have affected the outcome of the trial. Accordingly, defendant is entitled to a reversal of his convictions and a new trial. People v. George, 213 Mich.App. 632, 635, 540 N.W.2d 487 (1995). 2
Defendant also argues that the prosecutor had a duty to disclose that, at the time of trial, Deanna was under investigation for felony welfare fraud. An arrest warrant was authorized after defendant's first trial, which ended in a mistrial, but not served until after defendant was convicted in a second trial. After defendant was sentenced, the charges against Deanna were reduced from two felonies to a single misdemeanor pursuant to a plea agreement and she was sentenced to twenty-four months' probation.
On appeal, defendant asserts that the prosecutor's handling of the fraud charges against Deanna was instrumental in inducing her to testify against defendant and that the prosecutor violated the disclosure order by not revealing the investigation. Because we reverse defendant's convictions, this issue is moot. On retrial, defendant will be able to inquire into the circumstances surrounding the charges against Deanna.
Defendant argues that the prosecutor made improper remarks during rebuttal argument. We find no error in the prosecutor's comment that the police reports were not evidence. However, we agree with defendant that the following remark was improper:
He [defense counsel] says where is the witness that saw Deanna and Raymond at the garage. The witness was [defendant] himself. [Emphasis added.]
Although we reverse defendant's convictions on other grounds, we note that prosecutors may not comment on a defendant's failure to testify. See People v. Perry, 218 Mich.App. 520, 538, 554 N.W.2d 362 (1996). We caution prosecutors to refrain from making such remarks in the future. See People v. Guenther, 188 Mich.App. 174, 178, 469 N.W.2d 59 (1991).
Defendant next argues that the trial court erred in permitting the prosecution to introduce, during rebuttal, certain prior consistent statements made by Deanna. Because this issue may arise on retrial, we will address it briefly.
A
Deanna testified on direct examination that before she spoke with Stark, she told her father the facts surrounding Turner's disappearance. The prosecutor did not elicit the details of Deanna's conversation with her father. On cross-examination, defense counsel asked Deanna the following questions in support of the theory that Stark, who disliked defendant, had improperly influenced Deanna to fabricate her accusations against defendant. 3
Q. And when the two of you were alone in this car--you and Sergeant Stark--did Sergeant Stark tell you that he wanted some information about Glen Brownridge and whether he was involved in this?
A. I don't recall.
Q. While you were alone in this car with Sergeant Stark...
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People v. Brownridge
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