People v. Edwards

• Court: Court of Appeal of Michigan
• Writing for the Court: PER CURIAM
• Citation: People v. Edwards, 139 Mich.App. 711, 362 N.W.2d 775 (Mich. App. 1985)
• Decision Date: 22 February 1985
• Docket Number: Docket No. 68995
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony EDWARDS, Defendant-Appellant. 139 Mich.App. 711, 362 N.W.2d 775

Page 775

362 N.W.2d 775

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony EDWARDS, Defendant-Appellant.

Docket No. 68995.

139 Mich.App. 711, 362 N.W.2d 775

Court of Appeals of Michigan.

Submitted May 8, 1984.

Decided Oct. 31, 1984.

Released for Publication Feb. 22, 1985.

[139 MICHAPP 712] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., James J. Gregart, Pros. Atty., and Edward M. Hendrie, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by Stuart B. Levs, Detroit, for defendant-appellant on appeal.

Before HOLBROOK, P.J., and MAHER and HOEHN, ^* JJ.

PER CURIAM.

Defendant appeals as of right from jury convictions for first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and felony firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). He was sentenced to serve terms of life and 2 years imprisonment.

Defendant's convictions arose from the shooting death of Ronnie White at a party in Kalamazoo, Michigan, during the early morning hours of July [139 MICHAPP 713] 24, 1981. White was with his brother, Frank Woodson, and some young women standing beside Woodson's car when defendant and a companion, Hanson Jones, pulled into the driveway. Defendant got out of the car, sat on the trunk and began talking to no one in particular about where the action was.

Words were exchanged between defendant and White. Defendant pulled out a gun and fired a few shots at White's feet, after which he put the gun back into his pants and they began fighting.

When the fighting began between defendant and White, White's brother, Woodson, tried to break it up but Jones prevented him from doing so. This led to fighting between Woodson and Jones which culminated in Jones's pulling a gun and firing a number of shots at Woodson as Woodson ran away.

By this time, the fighting between defendant and White had escalated, with defendant taking a baseball bat from his car and White responding by picking up a wooden board. After defendant and White had hit each other with these weapons for a while, shots were heard and Jones ran up to White and defendant.

At this point, the testimony of the many witnesses became inconsistent. A number of eyewitnesses testified that defendant yelled to Jones, "Bring me the gun, let me shoot this mother fucker", after which Jones gave defendant the gun and defendant shot White to death. Other eyewitnesses testified that it was Jones and not defendant who shot White. One of these witnesses subsequently corrected himself and stated that he was sure that it was defendant and not Jones who had shot White. Some of the witnesses also testified that after White had been shot defendant picked up his baseball bat and hit White in the head as [139 MICHAPP 714] he lay on the ground, prior to driving away with Jones. Others testified that it was Jones who hit White with the bat after he had been shot.

Hanson Jones testified on behalf of defendant. He testified that when he had finished fighting with Woodson, he came back to defendant because he wanted to leave. Before they could go, Jones testified, the gun accidentally fired while he was holding it and the bullet hit White. Jones stated that he never gave the gun to Edwards. During direct examination, Jones admitted that at his own trial for the murder of White (at which he was convicted), he had testified that defendant had asked for the gun and that he had given it to defendant.

On cross-examination, Jones testified that he had not previously told the police that he had shot White. Jones again admitted that he had previously testified under oath that he had given the gun to defendant and that he had then heard the gun fire. He admitted that he had also testified that he knew the gun was loaded when he gave it to Edwards and that he had previously testified that he did not know who had shot the gun. Defendant's attempts to present evidence of prior consistent statements were denied by the trial court.

On appeal, defendant has raised five issues, two of which require reversal. He first argues that the trial court committed reversible error by refusing to allow the defense to rehabilitate the testimony of Hanson Jones with evidence of prior consistent statements. The trial court refused to allow this testimony because it believed that, while this evidence would have been admissible under earlier Michigan case law, the Michigan Rules of Evidence had "pre-empted" the field and did not provide for the admission of prior consistent statements,[139 MICHAPP 715] which were hearsay. The prosecution, on appeal, apparently concedes that the trial court's reasoning was incorrect, but argues that the result was nevertheless correct because the defense was attempting first to impeach and then rehabilitate its own witness and because the testimony of two of the eight proffered witnesses would only have revealed consistent statements made after Jones had a clear motive to lie.

We agree with defendant that adoption of the Michigan Rules of Evidence did not abrogate case law which permitted the use of prior consistent statements for limited purposes. In Brown v. Pointer, 390 Mich. 346, 351-352, 212 N.W.2d 201 (1973), the Supreme Court stated that, although consistent statements of a witness are generally not admissible as substantive evidence, they were admissible "for the purpose of supporting the credibility of a witness". Among the admissible purposes is rehabilitation of a witness impeached by a charge of recent fabrication. People v. Washington, 100 Mich.App. 628, 632, 300 N.W.2d 347 (1980); People v. Miniear, 8 Mich.App. 591, 155 N.W.2d 222 (1967), lv. den. 380 Mich. 758 (1968). This Court has repeatedly accepted the application of this rule even after the Rules of Evidence were adopted. People v. Squire, 123 Mich.App. 700, 706, 333 N.W.2d 333 (1983); Palmer v. Hastings Mutual Ins. Co., 119 Mich.App. 271, 273-274, 326 N.W.2d 476 (1982), lv. den. 417 Mich. 1083 (1983); People v. Davis, 106 Mich.App. 351, 355, 308 N.W.2d 206 (1981), lv. den. 414 Mich. 947 (1982); People v. DeLeon, 103 Mich.App. 225, 233, 303 N.W.2d 447 (1981), lv. den. 412 Mich. 935 (1982); People v. Washington, supra. Since this purpose is to rebut a charge of recent fabrication, the prior consistent statement is not being admitted to prove the truth of the matter asserted. It is, therefore, unnecessary [139 MICHAPP 716] to have a specific exception to the hearsay rule to permit use of such statements. The trial court thus incorrectly excluded the evidence on this ground.

The prosecution, however, argues that the evidence was nevertheless properly excluded because defendant deliberately impeached his own witness, Hanson Jones, and then sought to rehabilitate Jones because of his own impeachment. This assertion is not supported by the record. Defense counsel clearly raised the issue of Jones's previous inconsistent statement to lessen the impeaching impact of that statement; the defense certainly did not wish for the jury to disbelieve Jones's in-court testimony that he, and not defendant, had killed White.

The prosecution also argues that the testimony of two of the eight proposed witnesses would have been properly excluded by the trial court even under a correct assessment of the recent fabrication rule because their testimony would only have established that Jones made a consistent statement after he had a motive to lie. Michigan permits the use of prior consistent statements to rehabilitate an impeached witness if "(1) the impeachment of the sworn testimony attacked the witness as having had a motive for changing or falsifying his testimony so as to have been of recent contrivance or fabrication, and (2) if the earlier consistent statement was given at a time prior to the existence of any fact which would motivate bias, interest, or corruption". People v. Washington, supra, 100 Mich.App. p. 633, 300 N.W.2d 347, quoting Brown v. Pointer, 41 Mich.App. 539, 548, 200 N.W.2d 756 (1972). In this case, the prosecution's impeachment clearly implied that Jones had changed his story to claim that he, rather than defendant, had killed White only because Jones had already been convicted of the murder, and had "nothing to lose". [139 MICHAPP 717] Furthermore, the prosecutor explicitly argued this theory during closing argument. Thus, the first prong of this test is met. The question then is whether defendant's offer of proof established that all eight of his witnesses would have testified to prior statements which preceded this motive to lie.

The prosecution concedes that six of the eight witnesses fall within the definition of the rule. It argues, however, that two do not. We agree with the prosecution as to Detective Reggie Kissinger of the Kalamazoo Police Department; according to defendant's offer of proof, Detective Kissinger could only have repeated a statement made by Jones two days before defendant's trial and well after Jones had already been convicted and sentenced. However, we find that, according...