People v. Figgures

• Citation: 547 N.W.2d 673,451 Mich. 390
• Decision Date: 21 May 1996
• Docket Number: Docket No. 98856,No. 3,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ernest FIGGURES, Defendant-Appellant. Calendar
• Court: Supreme Court of Michigan

Page 673

547 N.W.2d 673

451 Mich. 390

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ernest FIGGURES, Defendant-Appellant.

Docket No. 98856.

Calendar No. 3.

Supreme Court of Michigan.

Argued Dec. 7, 1995.

Decided May 21, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Tony Tague, Prosecuting Attorney, and Kevin A. Lynch, Assistant Prosecuting Attorney, Muskegon, for people.

State Appellate Defender by Ronald J. Bretz and Lyle N. Marshall, North Lansing, for defendant.

RILEY, Justice.

This Court is called upon to decide whether defendant was denied a fair trial by the admission of certain rebuttal evidence. We conclude that the rebuttal evidence was properly admitted. Accordingly, we affirm the judgment of the Court of Appeals, but for the reasons stated in this opinion.

I

In August of 1981, Linda Figgures married defendant. Unfortunately, the marriage was a troubled one that ended in divorce on November 22, 1989. On the evening of February 2, 1990, defendant arrived at the Figgures' house and began to pound on the living room, dining room, and bedroom windows. Fearing for her life, Ms. Figgures telephoned the police. As she was giving the police her location, the phone went dead. Shortly thereafter, defendant entered through the front door. ¹ He kicked in a bedroom door and confronted Ms. Figgures. According to Ms. Figgures, defendant held a hammer above his head and violently swung it at her. She responded by taking a baseball bat and jamming it in his stomach. A struggle ensued, and Ms. Figgures was thrown backward across a table onto a couch. Defendant fled when the police arrived. The arriving police officers observed the broken door and the cut telephone wires.

Defendant, however, tells another story. He admits that he was not on the best terms with his ex-wife and that he had come over on the night in question to get some of his possessions. He testified that he still had a key to the front door and he used it to let himself in. After exchanging words with the complainant, he admits that he knocked down the bedroom door. ² He claims that as a result of this entry, his hammer fell from his tool belt. As he was picking it up and placing it into his tool belt, the complainant struck him with a baseball bat. Upon seeing the police, he fled. Defendant contends that he had no intention of committing any felony at this house and his only reason for being there was to retrieve some of his possessions.

Subsequently, defendant was captured by the police and brought to trial. At trial, the prosecutor questioned him about the police reports and injunctions that were filed against him. Defendant maintained that this line of questioning was improper and overly prejudicial. However, the judge allowed it. The prosecutor then offered a sealed criminal ex parte injunction against defendant, which was accepted. The judge instructed the jury that this evidence was only to be used to rebut defendant's claim that he and Ms. Figgures were getting along.

The jury found defendant guilty of breaking and entering an occupied dwelling with intent to commit felonious assault, and defendant was sentenced to seven to fifteen years in prison. Defendant, however, pleaded guilty to being a third-felony offender. As a result, Muskegon Circuit Court Judge R. Max Daniels vacated the earlier sentence and imposed a prison term of seven to thirty years. The Court of Appeals affirmed defendant's conviction in an unpublished per curiam opinion.

Although the trial court abused its discretion in permitting the prosecutor to engage in improper rebuttal, we conclude, on the record before us, the error was harmless beyond a reasonable doubt. [Unpublished opinion per curiam of the Court of Appeals, issued February 1, 1994 (Docket No. 131600), p 1.]

Defendant petitioned this Court for leave to appeal, which was granted. ³

II

The essence of this case at trial revolved around whether defendant intended to commit a felony once he broke into the house. Defendant argued that he had no intent to commit such a felony and that he went to the house only to retrieve his possessions. On direct examination, he testified that, since their divorce, he and complainant had made attempts at reconciling.

Q. After you moved, did you maintain any contact with Linda?

A. Yes, most definitely I did maintain contact with Linda. Linda was at my residence quite frequently and I was at her residence frequently.

Q. Did you ever try to reconcile with Linda?

A. Oh, yes. We tried to reconcile a number of times, and what would seem to happen was that we would get back together and it would be ten, twenty days or so and we would be separated again. At my own volition I would just leave again.

Q. Did that pattern continue up to February of this year?

A. Yes, it did.

Q. Can you give me the last couple times that you stayed for any length of time at Linda's house?

* * *

A. I stayed at Linda's house December 8 of 1989 until December 21st of 1989. I stayed there January the 2nd of 1990 until January 20th or so of 1990.

Q. While you were back in December and January, did you have any of your property on the premises?

A. Yes, I did. I had clothing there and I also had all my bedroom outfit (sic). I had my dishes, just extensive amount of clothing, my bedroom suite, dishes, a couple of chairs. I had a bench that I had made for my stereo unit, also.

Q. OK. During that period of time where [sic] you sleeping at that house___ sleeping at that place on Sixth Street?

A. Yes, I most definitely was sleeping with Linda. We were having a conjugal relationship. It was just like being back in my marriage. I was trying to get back together with Linda and see if we couldn't work our problems out. I was seeing if we couldn't in fact go through some counseling and alleviate the problems that existed between us. [Emphasis added.]

According to defendant, this reconciliation process began soon after their separation.

Q. Just for clarification, you testified that you were trying to reconcile your marriage in December of '89?

A. Yes. At the time that I was living with Linda, yes.

Q. And you were trying to reconcile in July, in any previous months?

A. Yes. Linda--Yes. Linda saw me quite frequently. Linda was at my residence quite a few times.

Q. When did this start?

A. This has been ongoing ever since our separation.

On cross-examination, the prosecutor attempted to impeach defendant's testimony by asking if there were police reports filed against him showing that he and the complainant were not on happy terms. ⁴ Q. Isn't it true in fact that you have been harassing her over the past year?

A. No, it is not true.

Q. That you have been following her?

A. No, I haven't been following her.

Q. That there have been several police reports made?

A. There has [sic] been police reports.

The prosecutor then submitted as evidence an ex parte criminal injunction filed against defendant on December 18, 1989. ⁵ Defendant contends that this manner of impeachment was improper because on cross-examination he had admitted that he and complainant had their ups and downs.

Q. So you are not saying that you were rocky--In July you were rocky, also?

A. Yes. We were having a rocky relationship, but Linda always tended to come back to me or find me or come over to my house.

Q. What do you mean when you say "rocky"?

A. What do I mean when I say "rocky"?

Q. Uh-huh.

A. We had our ups and downs.

Defendant contends that this admission prevented the prosecutor from being able to impeach him. We disagree. Defendant testified at length that he and complainant were reconciling and, in fact, had lived together amicably on two separate occasions: December 8 to 21, 1989, and January 2 to 20, 1990. He described these times in a favorable light comparing it to marriage.

Yes, I most definitely was sleeping with Linda. We were having a conjugal relationship. It was just like being back in my marriage.

Even though defendant admitted that he had a "rocky" relationship with complainant this did not change the essence of his testimony on direct examination regarding their reconciliation. Consequently, the prosecutor was justified in rebutting defendant's portrayal.

Admission of rebuttal evidence is within the sound discretion of the trial judge and will not be disturbed absent a clear abuse of discretion. People v. DeLano, 318 Mich. 557, 570, 28 N.W.2d 909 (1947); People v. Wilson, 55 Mich. 506, 21 N.W. 905 (1885). Because the scope of rebuttal is based on the trial judge's discretionary authority to preclude the trial from turning into a trial of secondary issues, it is the trial court that must, of necessity, evaluate the overall impression that might have been created by the defense proofs. As the United States Supreme Court noted over twenty years ago:

A criminal trial does not unfold like a play with actors following a script; there is no scenario and can be none. The trial judge must meet situations as they arise and to do this must have broad power to cope with the complexities and contingencies inherent in the adversary process. To this end, he may determine generally the order in which parties will adduce proof; his determination will be reviewed only for an abuse of discretion. [Geders v. United States, 425 U.S. 80, 86, 96 S.Ct. 1330, 1334, 47 L.Ed.2d 592 (1976).]

This discretion flows from the trial judge's authority to exclude evidence that is substantially more prejudicial than probative pursuant to MRE 403. See People v. Lavergne, 4 Cal.3d 735, 94 Cal.Rptr. 405, 484 P.2d 77 (1971); 22 Wright & Graham, Federal Practice & Procedure, § 5222, p 312.

Rebuttal evidence is admissible to "contradict, repel, explain or disprove evidence produced by the other party and tending directly to weaken or impeach the same." DeLano, supra, at 570, 28 N.W.2d 909, quoting People v. Utter, 217 Mich. 74, 83, 185 N.W. 830 (1921). See People v. Kelly, 423 Mich. 261,...