People v. DeLeon, Docket No. 47057

• Decision Date: 23 January 1981
• Docket Number: Docket No. 47057
• Citation: 103 Mich.App. 225,303 N.W.2d 447
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Juan Garcia DeLEON, Defendant-Appellant. 103 Mich.App. 225, 303 N.W.2d 447
• Court: Court of Appeal of Michigan — District of US

Page 447

303 N.W.2d 447

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Juan Garcia DeLEON, Defendant-Appellant.

Docket No. 47057.

103 Mich.App. 225, 303 N.W.2d 447

Court of Appeals of Michigan.

Jan. 23, 1981.

Rehearing Denied Feb. 24, 1981.

Released for Publication March 23, 1981.

[103 MICHAPP 227] James R. Neuhard, State Appellate Defender, R. Steven Whalen, Asst. State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Jeffrey C. Wilson, Asst. Pros. Atty., for plaintiff-appellee.

Before KELLY, P. J., and ALLEN and HORN, ^* JJ.

PER CURIAM.

On May 18, 1979, defendant DeLeon was convicted in Saginaw County Circuit Court by a jury of first-degree murder in violation of M.C.L. § 750.316; M.S.A. § 28.548. Defendant appeals as of right.

While in jail awaiting trial, defendant wrote letters to his girlfriend and family in an attempt to induce them to support a false alibi defense. [103 MICHAPP 228] Defendant entrusted the letters to his cellmate to be smuggled out of jail. Instead, defendant's cellmate gave the letters to the police detective investigating defendant's case. Defendant's motion to suppress these letters from evidence was denied by the trial court. Defendant claims the letters should have been suppressed as they were the result of an illegal search and seizure. However, it has been held that:

"Admission of evidence obtained by a private individual, not acting under the authority of the state, is not prohibited by the U.S.Const., Am. IV, whether his actions were reasonable or not. People v. Harry James Smith, 31 Mich.App. 366, 373-374, 188 N.W.2d 16 (1971)." People v. Langley, 63 Mich.App. 339, 344, 234 N.W.2d 513 (1975).

In the present case, there is no contention or evidence that the police encouraged or authorized the actions of defendant's cellmate. The cellmate acted on his own initiative and not under "color of law." Thus, no error occurred with the admission of these letters into evidence. People v. Holloway, 82 Mich.App. 629, 267 N.W.2d 454 (1978).

Defendant next contends that improper rebuttal testimony mandates reversal of his conviction. We are unpersuaded. The prosecution's theory of the case was that defendant was a "hit man" or hired killer, and that defendant's motive for the killing was the money he received. As a general proposition, proof of motive, while not essential, is relevant in a prosecution for first-degree murder. People v. Wells, 102 Mich.App. ---, 302 N.W.2d 196 (1980), People v. Mihalko, 306 Mich. 356, 361, 10 N.W.2d 914 (1943). Evidence of motive is also material in proving premeditation or deliberation. Wells, supra. During the prosecution's case in chief, defendant's cellmate testified that defendant had stated [103 MICHAPP 229] that he was a "hit man," and that he had been paid $10,000 to kill the victim. Later during trial, the prosecution again attempted to establish defendant's motive for killing the victim when a defense witness was cross-examined concerning a prior incident during which, the prosecution contended, the witness told the defendant to shoot another man because "that's what we pay you for." No objection was raised. The witness denied making such a statement. Defendant then testified at trial that he was not a "hit man"; that he did not shoot the victim, and that he did not have a gun at the time of the shooting.

Defendant was also cross-examined concerning the prior incident and the alleged statement. Defendant denied such a statement was ever made. After the defense rested, the prosecution called a rebuttal witness to testify that he heard the defense witness tell the defendant to shoot him, "that's what we're paying you for." Defendant objected to the admission of this rebuttal testimony. It is true that rebuttal testimony which is used to impeach on a collateral matter is improper in Michigan. People v. McGillen # 1, 392 Mich. 251, 266-267, 220 N.W.2d 677 (1974); People v. Lauzon, 84 Mich.App. 201, 205, 269 N.W.2d 524 (1978). However, rebuttal is admissible when limited to the refutation of relevant and material evidence bearing on an issue properly raised in the case. People v. Bean, 89 Mich.App. 626, 629, 280 N.W.2d 614 (1979); People v. Bennett, 393 Mich. 445, 449-450, 224 N.W.2d 840 (1975). In the present case, the rebuttal testimony concerned an issue properly raised in the prosecution's case in chief, i. e., the defendant's motive for shooting the victim. Therefore, no error occurred with the admission of the rebuttal testimony.

[103 MICHAPP 230] Even if defendant had been correct in asserting that the admission of the rebuttal testimony was error, not every error in admitting rebuttal evidence warrants reversal. Bean, supra, People v. Meadows, 80 Mich.App. 680, 263 N.W.2d 903 (1977). This Court will not reverse a conviction because of a trial error unless the error results in a miscarriage of justice. M.C.L. § 769.26; M.S.A. § 28.1096. Applying the two-pronged "harmless error" test, People v. Robinson, 386 Mich. 551, 194 N.W.2d 709 (1972); People v. Swan, 56 Mich.App. 22, 223 N.W.2d 346 (1974), we find no reversible error. First, the improper introduction of rebuttal evidence is not an error which is always regarded as prejudicial. Meadows, supra, 80 Mich.App. 687, 263 N.W.2d 903; People v. Rose, 268 Mich. 529, 256 N.W. 536 (1934). Second, this Court is convinced that the exclusion of the rebuttal testimony would not have altered the verdict. Not only was the evidence of defendant's guilt overwhelming, but the scope of the rebuttal testimony had already been brought forth in earlier, unobjected to, cross-examination of a defense witness and the defendant himself.

Defendant next claims that improper cross-examination bearing no relationship to defendant's credibility mandates reversal. Defendant's argument has no support in the lower court record. Review of the trial transcript reveals that defendant testified that he did not have a gun during October, November or December. The prosecution then cross-examined defendant concerning two incidents occurring in October in which he was seen with a gun. The prosecution did not intimate that defendant had been either arrested or convicted in either incident. These questions were proper impeachment and were directly related to defendant's credibility.

[103 MICHAPP 231] Defendant raises a claim of improper innuendo based upon a question asked by the prosecutor at trial. However, no objection was raised at trial and this issue will not now be reviewed for the first time on appeal. Walls v. Director of Institutional Services, 84 Mich.App. 355, 269 N.W.2d 599 (1978); Oakland County v. Detroit, 81 Mich.App. 308, 265 N.W.2d 130 (1978). Similarly, defendant now objects for the first time to the lack of an opportunity to explain certain inconsistencies contained in prior statements made by defendant and introduced at trial for impeachment purposes. Again, this issue has not been preserved for appeal, Walls, supra, Oakland County, supra. Parenthetically, it should be noted that defendant had ample opportunity to explain these inconsistencies on re-direct examination but failed to do so.

Next, defendant argues that the trial court erred in failing positively to indicate and identify its exercise of discretion in allowing defendant to be impeached with evidence of his prior convictions. At the time of defendant's trial, MRE 609 permitted the use of prior convictions for impeachment purposes only if:

"(1) (T)he crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and "(2) (T)he court determines the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect."

The standard for use of prior convictions has also been explained in Michigan case law. People v. West, 408 Mich. 332, 340, 291 N.W.2d 48 (1980), states:

[103 MICHAPP 232] "The law in Michigan is clear that the trial judge must recognize that he has the discretion to exclude reference to prior convictions for impeachment purposes. When defendant moves to exclude reference to the convictions, the trial court 'must positively indicate and...