People v. Dortch

• Decision Date: 19 June 1978
• Docket Number: Docket No. 77-721
• Citation: 269 N.W.2d 541,84 Mich.App. 184
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Johnny DORTCH, Defendant-Appellant. 84 Mich.App. 184, 269 N.W.2d 541
• Court: Court of Appeal of Michigan — District of US

Page 541

269 N.W.2d 541

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Johnny DORTCH, Defendant-Appellant.

Docket No. 77-721.

84 Mich.App. 184, 269 N.W.2d 541

Court of Appeals of Michigan.

June 19, 1978.

Released for Publication Sept. 18, 1978.

[84 MICHAPP 186] Keller, Keller, Creager, Kosick & Rochau by Harry J. Creager, St. Joseph, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., John A. Smietanka, Pros. Atty., for plaintiff-appellee.

Before CAVANAGH, P. J., and BRONSON and KELLY, JJ.

BRONSON, Judge.

Defendant was convicted on February 13, 1976, by a jury of first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548, and conspiracy to commit murder, M.C.L. § 750.157a; M.S.A. § 28.354(1). He appeals of right raising one issue.

The testimony of Terry Langford was the only evidence against defendant. At defendant's preliminary examination, Langford testified that he was contacted by defendant and offered $1,000 to kill defendant's son in a scheme to collect life insurance proceeds. Langford described how he picked up defendant's illegitimate son and his mother on a pretense of delivering money from Dortch, took them to an isolated area and shot them both twice with a sawed-off shotgun. Langford testified as part of a plea bargain in which he was allowed to plead guilty to second-degree murder, with a recommended sentence of 20-40 years.

[84 MICHAPP 187] At trial, Langford testified that he did not recall any events on the date of the crime. The prosecution moved to introduce Langford's preliminary examination testimony as substantive evidence. The trial court ruled that the motion was premature because defense counsel had not had the opportunity to cross-examine Langford. On cross, Langford denied the killing, the conspiracy and the truth of his prior testimony, but did not testify as to anything else. The trial court then ruled that the preliminary examination testimony could be read into evidence. The importance of Langford's preliminary examination testimony is illustrated by the trial judge's comment in ruling on defendant's motion for directed verdict that, absent Langford's preliminary examination testimony, he would have directed a verdict for defendant.

It is not disputed that the preliminary examination testimony was hearsay. ¹ See Ruhala v. Roby, 379 Mich. 102, 150 N.W.2d 146 (1967). Thus, the question before us is whether the testimony is admissible under some exception to the hearsay rule.

M.C.L. § 768.26; M.S.A. § 28.1049 provides:

"Testimony taken at an examination, preliminary hearing, or at a former trial of the case, or taken by deposition at the instance of the defendant, may be used by the prosecution whenever the witness giving such testimony can not, for any reason, be produced at the trial, or whenever the witness has, since giving such testimony become insane or otherwise mentally incapacitated to testify."

[84 MICHAPP 188] Although this statute, by its terms, only allows into evidence prior testimony when the witness cannot be "produced", or is "mentally incapable" of testifying, cases interpreting it have given it an expansive reading. See, E. g., People v. Goldman, 349 Mich. 77, 84 N.W.2d 241 (1957) (refusal to testify), People v. Pickett, 339 Mich. 294, 63 N.W.2d 681 (1954) (witness invoked Fifth Amendment), People v. Walton, 76 Mich.App. 1, 255 N.W.2d 640 (1977) ("recalcitrant" witness), People v. Thomas, 61 Mich.App. 717, 233 N.W.2d 158 (1975) (lack of memory), People v. Szeles, 18 Mich.App. 575, 171 N.W.2d 550 (1969) (refusal to testify).

However, People v. White, 401 Mich. 482, 257 N.W.2d 912 (1977), decided after trial in the case at bar, alters our perspective. In White, Charles Hodges, a codefendant who pled guilty and testified at the [84 MICHAPP 189] A similar scenario evolved in the case at bar. Langford, on direct examination, indicated a lack of memory concerning events on the days in question. ⁴ The prosecutor The rationale of White mandates reversal in the case at bar. Had Langford's testimony consisted solely of a professed loss of memory, his prior testimony would have been admissible. See People v. Thomas, supra; MRE 804(b) (1). However, here, as in White, the witness eventually changed his testimony and repudiated his prior statement. We are compelled by White to hold that Langford was not "unavailable" for purposes of the former testimony exception to the hearsay rule.

defendant's first trial, was called by the prosecutor at the defendant's second trial. At that trial, Hodges began by stating that he could not remember his earlier testimony. After the prior testimony was read to refresh his memory, Hodges testified that his prior testimony was a lie. The Court held ² that the prior testimony was not admissible under the prior testimony exception to the hearsay rule; Hodges was not "unavailable", he had simply Changed his testimony. ³ moved to admit Langford's [84 MICHAPP 190] prior testimony as substantive evidence, but the trial judge deferred ruling on the motion until after cross-examination of Langford. On cross, the only testimony evoked was Langford's assertion that the prior testimony was not the truth and his denial that he committed the killings or conspired to commit them. The trial judge then ruled the prior testimony admissible.

We also hold that Langford's testimony was not an admissible statement against interest. See People [84 MICHAPP 191] v. Edwards, 396 Mich. 551, 242 N.W.2d 739 (1976).

In Edwards, the Court held that statements against penal interest are admissible as an exception to the hearsay rule where the declarant is unavailable for trial. ⁵ The Court's rationale was that such evidence is inherently reliable and should be admitted when necessary. In the case at bar, Langford's former testimony was given as part of a bargain in which he was allowed to plead guilty to second-degree murder and granted immunity from prosecution. As a result of the favorable bargain, Langford's testimony was not Against his interests; it was in his interest to testify as he did. Because the statement was not so far against Langford's interest that a reasonable person would not make it unless it were true, ⁶ it lacked the requisite indicia of reliability upon which the exception is based. Therefore, the testimony was not admissible under the Edwards exception.

Additionally, the statement against penal interest exception requires the declarant to be unavailable for trial. People v. Edwards, supra ; MRE 804(b) (3). As we held above, because Langford changed his testimony at trial, he was "available". ⁷ The penal interest exception therefore does not apply. Langford's prior testimony was inadmissible hearsay. Defendant's conviction must therefore be reversed.

[84 MICHAPP 192] KELLY, Judge (dissenting).

RECENT HISTORY

In People v. White, 401 Mich. 482, 257 N.W.2d 912 (1977), on which the majority relies, the self-confessed murderer, twice convicted, twice reversed, sought the shelter of the exclusionary rule, pre-Miranda, regarding involuntary confessions. Three separate recorded confessions plus one broadcast on network TV were suppressed. The officer's testimony that he found the loot after "conversations with" defendant and his accomplice was likewise suppressed. This in spite of the high court's opinion that an incriminating statement made by the defendant to a newsman and broadcast on television for the world to see "would in most cases, weigh heavily in favor of a conclusion of voluntariness".

The defense produced witnesses that defendant and the victim were friends. In rebuttal the people produced contrary hearsay evidence. In construing the people's rebuttal as error the defense was unchallenged for bringing immaterial, collateral, conclusionary evidence inviting the error.

It seems anomalous that harmless error was not invoked or discussed. Does it signify a consensus which repudiates the harmless error rule? GCR 1963, 529.1.

Johnny Dortch was convicted on the preliminary examination testimony of Terry Langford, the killer-for-hire. Adoise White was convicted on the prior trial testimony of his accomplice Charles Hodges. In each case the accomplice had second thoughts after a plea bargain and repudiated his former testimony. The applicable law until White's third and last reported opinion governed Dortch's [84 MICHAPP 193] trial. That was People v. White, 65 Mich.App. 56, 236 N.W.2d 583 (1975) (hereinafter White # 2 ), released four months before Dortch was tried. The trial court was bound by the rule that:

"Where a witness has promised to testify for a party in accord with testimony given at a previous trial, thereby inducing the calling party to rely thereon, and has informed the calling party of a change in intentions after the trial has begun, if the trial judge determines such witness to be adverse at the time he takes the stand, the calling party may introduce the prior recorded testimony and prior inconsistent statements of the witness for impeachment purposes." 65 Mich.App. at 62, 236 N.W.2d at 586.

What was at hand in the White case and what is at hand in this case was in- court sworn testimony, where the defendant was confronted by the witness and represented by an attorney who was allowed and undertook cross-examination. The proofs appear to show beyond all doubt that Adoise White and Charles Hodges tied Robert Green's hands behind his back, stabbed and slashed him 42 times, and shot him at the base of the head as a result of which he expired. The proofs here show beyond reasonable doubt from this record that Johnny Dortch hired Terry Langford to kill and murder seven-year-old Johnny Freeman by shotgun or otherwise for insurance proceeds, and that Langford did so, throwing in the execution of Brenda Freeman to eliminate a witness.

The present Michigan rule of evidence, MRE 801, Hearsay; Definitions, says:

"(d) Statements which are not hearsay. A statement is not hearsay if

...