People v. Couch

• Decision Date: 28 August 1973
• Docket Number: Docket No. 14580,No. 1,1
• Citation: 211 N.W.2d 250,49 Mich.App. 69
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Revnell COUCH, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 250

211 N.W.2d 250

49 Mich.App. 69

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Revnell COUCH, Jr., Defendant-Appellant.

Docket No. 14580.

Court of Appeals of Michigan, Division No. 1.

Aug. 28, 1973.

Released for Publication Oct. 24, 1973.

Leave to Appeal Denied Dec. 27, 1973.

Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelly, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Michael R. Mueller, Asst. Pros. Atty., for plaintiff-appellee.

Before QUINN, P.J., and J. H. GILLIS and BASHARA, JJ.

J. H. GILLIS, Judge.

Defendant, Revnell Couch, Jr., was convicted by a jury of manslaughter. M.C.L.A. § 750.321; M.S.A. § 28.553. He appeals as of right.

On May 25, 1971, a neighborhood argument took place at the home of Dorothy Haney. Her daughter, Janet Harrell, age 6, was standing on the porch of the home when she was struck by a brick thrown at Dorothy Haney by the defendant. All of the numerous res gestae witnesses called to testify at trial corroborate those facts. However, there was serious dispute at trial among those witnesses as to the circumstances surrounding the throwing of the brick at Mrs. Haney.

Some testified Mrs. Haney drew a knife and ran towards defendant threatening imminent peril. They say defendant then picked up the brick and threw it in self-defense.

Others testified Mrs. Haney did not chase defendant with a knife until after the little girl was fatally wounded. Those witnesses say defendant was the aggressor.

Some witnesses said both versions were true. That is, they testified at trial that defendant acted to defend himself, while, at the same time admitted the truth of prior statements indicating the contrary.

Still other witnesses who corroborated defendant's theory of self-defense at trial, admitted making prior inconsistent statements but denied the truth of the matters asserted therein.

Defendant's statement to police, made shortly after the incident, was admitted. It did not remotely assert the claim of self-defense, but instead indicated the brick was thrown at someone else, but without an intention to harm anyone.

The prosecutor made several remarks during the argument concerning the obvious conflict in testimony. ¹ ] Defendant contends the remarks were inflammatory prejudicial, and deprived him of a fair trial. We do not agree.

It should go without saying that an attorney for either party may argue to a jury that, in his opinion, the evidence shows a witness to be unworthy of credence. See People v. Wirth, 108 Mich. 307, 66 N.W. 41 (1896). Such argument may be based on the internal consistency of a witness's statement, its relation to other testimony in the case, the likelihood or possibility of the events described by the witness, the fact of prior inconsistency by the witness, the opportunity or motive to fabricate, or a demonstrated inability to recount incidents normally within a person's recall. In any case, argument on the credibility of witnesses should not be based on the superior knowledge of the attorney of facts or evidence not in the case. See People v. Quick, 58 Mich. 321, 25 N.W. 302 (1885); People v. Dane, 59 Mich. 550, 26 N.W. 781 (1886); People v. Hess, 85 Mich. 128, 48 N.W. 181 (1891); People v. Ignofo, 315 Mich. 626, 24 N.W.2d 514 (1946); People v. Humphreys, 24 Mich.App. 411, 180 N.W.2d 328 (1970).

In our opinion, the remarks of the prosecutor, while severe, did not go beyond permissible limits. In essence, the prosecutor translated into layman's terms many of the concepts just discussed.

For example, the notion stated by some witnesses that Mrs. Haney, after chasing defendant from her yard with a knife, ran back to the porch after seeing him throw the brick, in time to shield herself with the body of her child Before the brick struck, Is incredible. Furthermore, defendant's prior statement of the incident revealed he threw the brick at someone other than Mrs. Haney. Arguing that a present assertion of self-defense from Mrs. Haney is recent fabrication from prior inconsistency is permissible. See, E.g., People v. Russell, 27 Mich.App. 654, 183 N.W.2d 845 (1970). The fact that the prosecutor phrased his argument in words not as delicate as an Oxford don might have used dues not require reversal.

During trial prior statements of several witnesses were offered by the prosecution to show inconsistency with their present testimony. Some of the witnesses acknowledged they made the self-contradictions contained in their signed statements. Some admitted the prior statements Were true. To that extent, and over defense counsel's objections, those statements were admitted as substantive evidence and not merely to show inconsistency. The jury was so instructed.

Had the statements made prior to trial been merely identified and the content denied, they could have been used only for impeachment purposes. However, notwithstanding the fact that inconsistency is shown, so much of a prior statement as a witness adopts by Admission of the truth of the facts contained therein, becomes substantive evidence. Perry v. F. Byrd, Inc., 280 Mich. 580, 274 N.W. 335 (1937); Schratt v. Fila, 371 Mich. 238, 123 N.W.2d 780 (1963). We find no error.

Nor do we find error in the admission of defendant's statement to police shortly after the incident. We are satisfied the trial court correctly determined the issue of the admissibility of the statement at a separate hearing pursuant to People v. Matthews, 22 Mich.App. 619, 178 N.W.2d 94 (1970).

Defendant's theory at trial was based on self-defense. To the extent the evidence permitted, defense counsel argued defendant was faced with an attack by a woman wielding a knife and that throwing a brick at her was a justified response. The jury was instructed, in essence, that a case of self-defense was made out if th...