People v. Davis

• Decision Date: 19 May 1981
• Docket Number: Docket No. 45632
• Citation: 106 Mich.App. 351,308 N.W.2d 206
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Pershing DAVIS, Defendant-Appellant. 106 Mich.App. 351, 308 N.W.2d 206
• Court: Court of Appeal of Michigan — District of US

Page 206

308 N.W.2d 206

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Pershing DAVIS, Defendant-Appellant.

Docket No. 45632.

106 Mich.App. 351, 308 N.W.2d 206

Court of Appeals of Michigan.

May 19, 1981.

Released for Publication July 24, 1981.

James R. Neuhard, State Appellate Defender, [106 MICHAPP 352] James Krogsrud, Asst. State Appellate Defender, for defendant-appellant.

[106 MICHAPP 351] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., John Smietanka, [106 MICHAPP 352] Pros. Atty., Angela Baryames, Asst. Prosecutor, for plaintiff-appellee.

Before WALSH, P.J. and R.B. BURNS and HOLBROOK, JJ.

R.B. BURNS, Judge.

Defendant was convicted by a jury of one count of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. It was alleged during trial that defendant and two other persons, James Hudson and James Steven Townsend robbed Ruby's Truck Wash in Sawyer, Michigan, on July 26, 1977. Hudson testified for the prosecution. Defendant asserted during trial that he was not a participant in the robbery. Defendant raises numerous issues on appeal, none of which warrant reversal.

Prior to trial, James Dickerson, an employee of the truck wash who was standing outside just prior to the robbery, was unable to identify defendant's picture during a photographic showup. Defendant argues therefore that Dickerson's subsequent in-court identification of defendant was improper. We disagree. Counsel was present at the showup, and the record indicates that it was not suggestive. ¹ We find no authority in support of defendant's contention that the in-court identification was per se violative of due process or that the prosecution was required to establish an independent basis for the witness's in-court identification of defendant. See People v. Currelley, 99 Mich.App. 561, 566, 297 N.W.2d 924 (1980).

Defendant next argues that the prosecutor impermissibly[106 MICHAPP 353] bolstered the testimony of James Hudson by eliciting testimony of his prior out-of-court statement that was consistent with his testimony against defendant. The record indicates that in August of 1977 officer Hellenga of the Michigan State Police questioned Hudson about the armed robbery and that Hudson told him about his and defendant's involvement in the crime. Subsequently, while Hudson was being held in jail, he wrote a note to "Steve" Townsend. The note read as follows:

"Steve

"I don't know why I told the police those things. My mind wasn't functioning well from those pills I took. They kept telling me they were going to send me away for life. There was a state cop from New Buffalo there. He told me * * you and Butch [defendant] and me robbed that truck wash in Sawyer. He told me all about it. Then he told me if I told him we did it he would help me get out of this mess. I was so confused I signed a statement. I don't know why I did it but its to [sic] late for me now. I just hope you can prove your inocence [sic].

"Your friend

"Jim Hudson"

During trial Hudson gave testimony implicating defendant in the crime. On cross-examination, defense counsel impeached Hudson's credibility by his prior inconsistent statement--the note to Townsend. The note was received into evidence. Hudson acknowledged that he had written the note but denied the truth of its contents. In an apparent effort to rehabilitate Hudson's credibility through the introduction of his prior consistent statement, officer Hellenga was called to the stand. [106 MICHAPP 354] After repeated hearsay objections were interposed by defense counsel, Hellenga testified that the statement that Hudson gave to him, to which the note refers, was the same as Hudson's preliminary examination testimony.

Regarding the admissibility during trial of prior consistent statements, the Supreme Court stated, in Brown v. Pointer, 390 Mich. 346, 351-352, 212 N.W.2d 201 (1973):

"Generally, consistent statements of a witness are not admissible as substantive evidence. People v. Hallaway, 389 Mich. 265, 276, 205 N.W.2d 451 (1973); Dundas v. Lansing, 75 Mich. 499, 502, 42 N.W. 1011, 13 Am.St.Rep. 457, 5 L.R.A. 143 (1889); Brown v. People, 17 Mich. 429, 435, 97 Am.Dec. 195 (1868). It has been said, however, that they are often 'allowed a limited admissibility for the purpose of supporting the credibility of a witness, particularly to show that a witness whose testimony has allegedly been influenced told the same story before the influence was brought to bear.' McCormick Evidence (2d ed), Sec. 251, p. 604. The authors of this recent revision of McCormick assert that the trend of decision supports the admission of consistent statements; they reason that '[t]he witness can be cross-examined fully. No abuse of prepared statements is evident. The attack upon the witness has opened the door.' McCormick, Evidence, op cit.

"In People v. Hallaway, supra, p. 277, 205 N.W.2d 451 it was recently noted: 'Justice Cooley, in Stewart v. People, 23 Mich. 63 (1871), held that a prior consistent statement of a witness may be admitted where a prior inconsistent statement has been put in evidence, and the prior consistent statement is of such character as to be probative upon the issue of whether or not the prior inconsistent statement was in fact made.' "

As the Brown Court noted above, there are at least two exceptions to the general rule that prior consistent statements are inadmissible: to rebut a [106 MICHAPP 355] charge of influence and when there is a question whether or not a prior inconsistent statement in fact was made. See also People v. Washington, 100 Mich.App. 628, 300 N.W.2d 347 (1980); People v. Harris, 86 Mich.App. 301, 272 N.W.2d 635 (1978); People v. Miniear, 8 Mich.App. 591, 155 N.W.2d 222 (1967); People v. Gardineer, 2 Mich.App. 337, 139 N.W.2d 890 (1966).

Defendant correctly points out that neither exception is applicable in the present case. There is no question that Hudson made the prior inconsistent written statement or that he made the prior consistent statement in response to the police officer's promise to help him out if he talked, that is, after the influence was brought to bear. However the Brown Court...