People v. Elauim
| Decision Date | 25 September 1973 |
| Docket Number | Docket No. 13299,No. 1,1 |
| Citation | 212 N.W.2d 292,49 Mich.App. 559 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James ELAUIM, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief App. Counsel, Thomas B. Smith, Asst. Pros. Atty., for plaintiff-appellee.
Before LEVIN, P.J., and V. J. BRENNAN and O'HARA,* JJ.
Defendant was convicted after a jury trial of first-degree murder committed in the perpetration of a robbery (M.C.L.A. § 750.316; M.S.A. § 28.548) and sentenced for the mandatory term of life imprisonment. Three eyewitnesses identified him as a participant in a robbery-murder occurring at the American Auto Parts Store in Detroit, December 9, 1970.
His sole claim on appeal is that the trial court erred in excluding a letter offered by defendant to impeach one of the eyewitnesses. It was offered as a prior inconsistent statement and was identified and acknowledged by the witness. The text of the letter was ambiguous and standing alone posed no contradiction to any of the witness's prior testimony. The trial court gave defense counsel further opportunity to explain the letter and connect it to the testimony. This defense counsel refused to do. Defense counsel failed to establish the relevancy of the letter. On this basis the trial court's ruling to exclude the letter was not error.
Affirmed.
Whatever ambiguities there may have been in the letter refused admittance into evidence, this letter, written before the trial by an eyewitness called by the people, either contradicted his trial testimony or was an offer to testify falsely. It was admissible under either interpretation.
James Elauim was convicted by a jury of first-degree murder on evidence that the murder was committed in the perpetration of a robbery. M.C.L.A. § 750.316; M.S.A. § 28.548.
The errors assigned concern the judge's refusal to admit the letter, the introduction by the prosecutor of evidence of another crime, and the propriety of the instruction on reasonable doubt.
At the trial three witnesses identified Elauim as a participant in an armed robbery of a Detroit auto parts store which resulted in the shooting death of a store clerk. One of the witnesses was a customer in the store. A second was the proprietor. The third was Tony Hayes, the witness whose written statement was not allowed to be introduced. At the time of the trial Hayes was serving a sentence in state prison for armed robbery.
Hayes testified that he was walking past the auto parts store at the time of the robbery and observed through the window an acquaintance of about six years, defendant Elauim, holding a pistol on other persons. He walked past, and as he was coming back heard a gunshot from inside the store.
Elauim did not take the stand. The defense consisted of an alibi witness's testimony that Elauim must have been home with him on the afternoon of the robbery because he and Elauim were at home every day and every night in December, 1970, and a suggestion by Elauim's lawyer during the cross-examination of Hayes that it was Hayes--a convicted armed robber--who had committed this robbery.
Hayes was then recalled and acknowledged that he had sent the following letter to the alibi witness:
'Dear Mike'
'Im printing this letter so my massage will be competely understood! * * *
'I'd appreciate it if you'd tell 'june' brother Mike & his lady kin.
'That the only way june will beat this is to do as I've done. I admit at the moment I look like a snitch!
'But like it anit that way! june will take a jury trail & then I will tell the jury in open court how the police is trying to frame him & has offer me this & that if I help. I'll tell them that I've told the police I knew notching of it & they told me what to say! & Promised me this & that if I do it!
'& four or five withnesse's for june wouldn't hurt any either! june & I have kicked it around & he agree's. My record speaks for it sefe, all though a lot of people would like it to be true its not! Im no snicth! and above all, I know what I'm doing!
'Mike-june-chicken-Smilely has know me all my life & they know that ain't my bag!
'Send me chickens--& Smily's adress!
'Sincerely yours
'Mike Hayes
'P.S. have him or Mike drop me a line & keep my intention away from Butch!' (Emphasis supplied.)
Elauim's lawyer offered the letter in evidence as a prior statement inconsistent with Hayes' testimony at the trial. The jury was excused. There ensued an extended colloquy between the judge and Elauim's lawyer. The judge expressed concern that the letter was ambiguous, and that if the jury were to ask him to explain it he would not be in a position to 'explain it under the law'.
Elauim's lawyer then offered the following interpretation:
The judge ruled that unless Elauim's lawyer called upon Hayes to clarify the letter, he would not admit it into evidence. Elauim's lawyer said that he believed the letter was admissible as 'a prior and inconsistent statement' and declined to question Hayes concerning the letter. The judge refused to receive the letter in evidence.
While it might have been preferable to ask Hayes about ambiguities in the letter, the thrust of the letter was clear enough. If the judge had not on his own initiative questioned the admissibility of the letter, an explanation of the ambiguities might have been forthcoming upon a further examination of Hayes which the prosecutor had indicated he wished to undertake but which was effectively prevented when the judge improperly placed on Elauim's lawyer the burden of eliciting from Hayes an explanation of the letter.
A proper foundation was laid; there was no ambiguity concerning the critical names. 1 Hayes acknowledged that he had written the letter and signed it 'Mike Hayes', a name he used in correspondence. The letter was addressed to the defendant's alibi witness. Earlier it had been brought out that 'June' is Elauim's nickname. The other names are of no importance.
Ordinarily, a statement proffered as an inconsistent statement is an earlier statement of the witness. This letter from Hayes to the alibi witness is a statement of what Hayes would be willing to say at some future time and, thus, does not necessarily record a prior statement. But substantively it is of no importance whether the statement is prior or, as here, an offer to make a statement at some future time. It is the inconsistency, not the timing, of the statement which makes it admissible.
Either Hayes had in fact told the police he knew 'nothing of it', or, if that was not true, he was offering to testify falsely at the trial. Either way the letter was admissible.
Professor Wigmore wrote concerning an offer to testify falsely or corruptly:
's 957 Willingness to swear falsely. A willingness to swear falsely is, beyond any question, admissible as negativing the presence of that sense of moral duty to speak truly which is at the foundation of the theory of testimonial evidence * * *.
3A Wigmore on Evidence, §§ 957, 958, pp. 803--804. 2
On the other hand, if Hayes had in fact told the police that he knew 'nothing of it', as he said he would testify at the trial, then he had made a statement inconsistent with his testimony at the trial. 3
In Hamilton v. People, 29 Mich. 195, 197--198 (1874), the Michigan Supreme Court held that the defendant Hamilton should have been allowed to introduce into evidence a written statement signed by the chief prosecution witness which contradicted the witness's trial testimony. In the statement the witness explained how he had been led to testify for the prosecution and denied the truth of facts implicating Hamilton in the crime. The Court said:
'We have had no authority produced, and can conceive no reason why this testimony should have been excluded. There is no portion of the document which is irrelevant to the subject of impeachment, and nearly the whole force of it was destroyed by allowing it to be shorn of its explanations.
'It was one continuous and single narrative, which, if true, or if given, whether true or not, must have entirely destroyed the credit of the witness. His position in the case was one calling for the severest scrutiny, and, while his statements involving other persons would be no evidence against them, it would be a very dangerous thing to hold that a witness swearing a crime upon one man could not be impeached by showing that he had made statements that the crime had been committed by another person not on trial. The only inquiry would be whether there was a contradiction, and that may be shown without reference to its bearings elsewhere.
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