People v. Durkee

• Citation: 120 N.W.2d 729,369 Mich. 618
• Decision Date: 05 April 1963
• Docket Number: No. 99,99
• Parties: PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Eldred DURKEE, Defendant and Appellant.
• Court: Supreme Court of Michigan

Page 729

120 N.W.2d 729

369 Mich. 618

PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Eldred DURKEE, Defendant and Appellant.

No. 99.

Supreme Court of Michigan.

April 5, 1963.

Mitts, Smith & Haughey, Grand Rapids (Sherman H. Cone, Grand Rapids, of counsel), for respondent and appellant.

Frank J. Kelley, Atty. Gen., Eugene Krasicky, Sol. Gen., Richard N. Loughrin, Pros. Atty., Kent County, Grand Rapids, for the People.

Before the Entire Bench.

KELLY, Justice.

Appellant stood trial in the circuit court for Kent county on an information charging that he negligently, unlawfully and feloniously drove an automobile north on Freeport road and failed to stop at a stop street intersection, thus colliding with John Miller's car and causing the death of John Miller. Two other persons were killed in the same accident.

Two witnesses were called to testify as to how the collision occurred, namely: defendant and Sharon Kaufman.

Sharon Kaufman, who was riding in the front seat of the car at the time of the collision, testified that she had no recollection of the collision, nor did she remember making a statement to the deputy sheriff in the hospital after the collision.

Appellant testified he did not remember anything about the accident until he woke up in the hospital the following Thursday night; that he was not driving the car at the time of the accident and that the car was not proceeding north on Freeport road, as claimed by the people, but was traveling easterly on M-50 and that, threfore, the accident was caused by the wrongful acts of John Miller.

The statute (C.L.1948, § 767.40a [Stat.Ann.1954 Rev. § 28.980(1)]) states: 'Witnesses whom the people are obliged by law to call as res gestae witnesses may be impeached the same as though such witnesses had been called by the respondent.'

When Sharon Kaufman testified that she had no recollection of being questioned at the hospital by the deputy sheriff, the prosecuting attorney asked the right to cross-examine under the statute. Over objections the court granted the request, stating:

'Under this statute she may be interrogated as to the questions and answers that she gave to the deputy sheriff and it is up to the jury to determine whether or not she has forgotten it, whether she had amnesia or possibly forgotten about it. It is a question for the jury. I don't know.'

Witness was interrogated whether 3 questions were asked her approximately 2 1/2 days after the accident by the investigating officer and whether she gave answers as follows:

'Q. Can you remember traveling on Freeport road?

'A. Yes, I can remember going on Freeport road as they were going to take me home.'

'Q. In what direction were you going?

'A. Going north on Freeport road at that time.'

'Q. Can you tell me how the rest of the people were sitting in the car?

'A. Eldred (defendant) was driving. William Rose was on the right side sitting next to me. I am not sure how Dwayne Durkee and Lentz were sitting in the back, but I believe Dwayne was sitting on the left and Lentz was sitting on the right side.'

The witness denied having any recollection of the conversation with the deputy sheriff. The deputy sheriff was then called and testified that the questions were asked and that the witness gave the answers, as stated above.

The main question presented in this appeal is whether reversible error was committed in bringing to the attention of the jury the answers the deputy sheriff testified witness Sharon Kaufman made in reply to his questions.

The people, in their brief, justify their conduct at the time of trial by stating:

'Now it certainly cannot be said that at the time Sharon Kaufman was called as a witness, the prosecutor knew that she had no recollection of the facts surrounding the accident. It is submitted that Sharon Kaufman was called as a witness by the prosecution in good faith and that her testimony surprised the People so that they were forced to impeach her under the provisions of Michigan Statutes Annotated, Section 28.980(1).

'It is noted that this was allowed by the court who had ample opportunity to observe the witness' demeanor, willingness to testify, manner of conducting herself and finally, her forthrightness in giving the answers to the various questions put to her.

'The People, at the time of trial, had in their possession a statement given by Miss Kaufman and were certain that she could give testimony material to the facts in question. A further examination of the record reveals that the manifest purpose in calling her as a witness was to show as an element of proof that the respondent was driving the vehicle at the time the events in question occurred.

'It is submitted that the impeachment of Sharon Kaufman was proper and is directly within the statute. She being an eye-witness to the entire occurrence and a material witness with respect to the case.'

Opposing plaintiff's position, we quote the following from defendant's brief:

'The mere fact that Sharon Kaufman was in the automobile at the time of the accident did not make her a res gestae witness. She was a res gestae witness and one whom the prosecution was required to call only if she could give testimony directly bearing upon the facts in question. This she could not do. * * *

'Moreover, it is submitted that there was no basis for impeachment since the witness had at no time made any contradictory statements. The statement that she did not recall any conversation with the officer did not deny that such conversation took place. * * *

'It is submitted, therefore, that this testimony was testimony concerning a collateral matter not subject to impeachment, that no proper basis for impeachment existed, and that the use of hearsay evidence in this fashion was, therefore, so prejudicial to the rights of the accused as to require reversal.'

Endeavoring to justify the method used in the cross-examination of the witness, the people cite 5 Michigan decisions ¹ and appellant calls our attention to 7 Michigan cases. ² None of these cited cases presents a factual background similar to the present case.

The record discloses that the witness at the preliminary examination testified: 'I don't remember being in the accident. I remember afterwards when I woke up, they told me I had been in an accident.'

The witness's failure to remember does not cause us to agree with appellant's statement 'that the mere fact that Sharon Kaufman was in the automobile at the time of the accident did not make her a res gestae witness. She was a res gestae witness and one whom the prosecution was required to call only if she could give testimony directly bearing upon the facts in question. This she could not do.'

Whether the people 'were certain that she could give testimony material to the fact in question' or not, they were obliged to call her as a res gestae witness and would have been remiss in duty if they had concluded that the mere fact that she testified at the preliminary examination she did not recollect, she would also fail to remember when questioned at the trial.

Her testimony was the only possible testimony available, besides defendant's, and certainly would not come within the cumulation exception referred to in People v. Kayne, 268 Mich. 186, 194, 255 N.W. 758:

'Instead the rule is that, apart from cumulation of testimony, any res gestae witness should be endorsed and called by the prosecution if the testimony of such witness is reasonably necessary to protect the accused against a false accusation.'

It is just as necessary to call the witness to protect the interests of the State as it is to protect the accused against a false accusation.

A case very similar to the present case was decided by the California appellate court. ³ The witness was driving the vehicle in which decedent had been riding, and was sitting in the car at the time defendant's northbound car struck and killed decedent as he was crossing the highway. The witness testified sketchily to matters prior to the accident, but claimed she remembered nothing at the time of the accident. The court said:

'Where a witness merely states that he does not remember he cannot be impeached by the showing of former statements regarding the facts which he claims not to have remembered. In any event the introduction of such prior statements would be of no...