People v. Gibson

• Decision Date: 18 October 1976
• Docket Number: Docket No. 21987
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rosemary GIBSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 613

248 N.W.2d 613

71 Mich.App. 543

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rosemary GIBSON, Defendant-Appellant.

Docket No. 21987.

Court of Appeals of Michigan.

Oct. 18, 1976.

Released for Publication Jan. 12, 1977.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief, Asst. Pros. Atty., Andrea L. Solak, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and KAUFMAN and CAMPBELL, ^* JJ.

DAUFMAN, Judge.

Defendant, Rosemary Gibson, was convicted by a jury in Detroit Recorder's Court of second-degree murder, M.C.L.A. § 750.317; M.S.A. § 28.549. The court sentenced the defendant to the maximum term of life imprisonment. She appeals as of right and advances numerous questions for appellate review. We, however, find only four of these claims merit discussion.

The pertinent facts in this case may be briefly stated. The prosecution's case rested primarily upon the testimony of several eyewitnesses to the homicide. In skeletonized form, they testified as follows: The defendant and Eddie Richardson, defendant's purported common law husband, engaged in an argument over an incident which had occurred earlier in the evening. After their disagreement, defendant returned to the inside of their residence. Shortly thereafter, defendant returned to the porch and demanded that one Robert Morris, a friend of Richardson's, immediately return her handgun. Morris refused. However, she bolstered her vociferous objections to his retaining possession with the shotgun she was brandishing. At this time, due in no small measure to the shotgun, defendant was successful in her attempt to regain possession of the handgun.

Further testimony elicited from these witnesses indicates that the defendant returned inside of the house after she reacquired possession of the handgun. Later, however, defendant returned to the porch and shot Eddie Richardson with the handgun for no apparent reason. With a third shot, Richardson fell off the chair. According to one witness, the defendant 'just stood up there and finished shooting' while Richardson sprawled on the ground beneath her.

After all of the witnesses, save one, testified, the defendant took the stand in her own behalf, and told the jury her version of the facts leading to Richardson's death. In essence, her testimony set forth the contention that Richardson threatened her life with a knife, she was in fear of grave bodily harm and, therefore, she took his life in self-defense. Obviously, her recounting of the facts differed materially from that of the prosecution's witnesses. Her testimony, however, was consistent with a statement made to the police after her arrest. On cross-examination, the prosecutor, while not attacking any inconsistencies between her testimony and statement to police, repeatedly questioned why the defendant did not tell the police the whereabouts of the murder weapon. She answered, 'they never asked'.

I

The defendant presses as a threshold argument that the aforementioned questioning of the defendant regarding her 'nonutterances', violated her constitutional right to remain silent and was a clear Bobo error. ¹ Defendant vigorously asserts that a defendant's silence may not be used as evidence of guilt at trial. Bobo, supra, People v. Jablonski, 38 Mich.App. 33, 195 N.W.2d 777 (1972), People v. Hicks, 22 Mich.App. 446, 178 N.W.2d 193 (1970). Nor may it be used to impeach the defendant's credibility as a witness, Bobo, supra, People v. Williams, 26 Mich.App. 218, 182 N.W.2d 347 (1970). This is so, defendant contends, even where, as here, the defendant gave a voluntary statement to police, but failed to mention a salient detail of the purported crime. Specifically relied upon by the defendant for her conclusion is the following language from Bobo:

'We will not condone conduct which directly or indirectly restricts the exercise of the constitutional right to remain silent in the face of accusation. 'Non-utterances' are not statements. The fact that a witness did not make a statement may be shown only to contradict his assertion that he did.' 390 Mich. at 359, 212 N.W.2d at 192.

The prosecutor retorts that the cases relied upon by defendant are inapposite to the factual context in the instant case. The prosecutor points out that the defendant voluntarily testified as to her nonutterances regarding the whereabouts of the gun at the time of her arrest on direct examination. Traditionally, once the door is opened on direct examination, the prosecution may question the defendant on these matters on cross-examination. People v. Roger Johnson, 382 Mich. 632, 172 N.W.2d 369 (1969), Cert. den. 397 U.S. 1079, 90 S.Ct. 1533, 25 L.Ed.2d 816 (1970), People v. Markham, 19 Mich.App. 616, 173 N.W.2d 307 (1969). In light of defense counsel's questioning, the prosecutor maintains, the colloquy with the defendant regarding her post-arrest nonutterances was proper. We agree.

Under the circumstances of the present case, the defendant's right to remain silent was not violated. 'Violation of that right clearly results from prosecutorial cross-examination of the defendant asking * * * (her) why * * * (she) did not tell the police * * * (her) version of the facts when arrested, If defendant makes no allegations on direct examination as to what was said or was not said at the time of * * * (her) arrest.' ² (Emphasis supplied.) Defendant did make such allegations on direct examination. Therefore, the questions by the prosecutor were proper.

II

Defendant next asserts that the trial court abused its discretion in allowing the prosecutor to present rebuttal testimony of an unindorsed res gestae witness. This contention arose from the following facts: After the prosecution had rested and the defense had begun its presentation, the prosecutor informed the court that he had discovered another res gestae witness who had only now come forward, whose testimony he wished to introduce. The good faith and due diligence of the prosecutor went unchallenged at trial, as it appeared that the witness had intentionally absented herself from detection.

Defense counsel immediately objected to the witness taking the stand. His objection was founded principally upon the premise that he was surprised by the introduction of the witness. The trial court was not persuaded by defense counsel's arguments and deemed them 'premature'. The trial judge further noted that he could not escape the conclusion that the responses of the defense counsel made it sufficiently likely, despite assertions to the contrary, that he was aware of the existence of the witness and, therefore, there was truly no surprise. The trial judge then ruled that the testimony of the witness would be deferred until rebuttal. He also allowed defense counsel the opportunity to listen to a recorded interview taken of the witness by the prosecutor after disclosure of her existence.

On appeal, it is urged that the testimony of the rebuttal witness properly belonged in the prosecutor's case in chief, since it tended to prove the actual commission and immediate surroundings to the crime. People v. Quick, 58 Mich. 321, 25 N.W. 302 (1885). Further, defendant maintains that this testimony violated defendant's right to a fair trial, as it allowed the prosecutor to chip away at defendant's testimony in rebuttal with more evidence of the surrounding circumstances of the crime. People v. Rose, 268 Mich. 529, 256 N.W. 536 (1934), People v. Parker, 65 Mich.App. 592, 237 N.W.2d 572 (1975).

Initially, we note, significantly, a critical factor is the failure of defense counsel to object specifically to the witness as an improper rebuttal witness. Nor did he object to any of the questions of the prosecutor as exceeding the proper scope of rebuttal testimony. This is normally viewed as a prerequisite to raising errors of this type on appeal. Hence, generally, where no objection is made to the order of proof we will not reverse. See People v. Atcher, 65 Mich.App. 734, 238 N.W.2d 389 (1975), People v. Van Riper, 65 Mich.App. 230, 237 N.W.2d 262 (1975).

We need not rest our decision on these grounds, however. We agree with the defendant that 'ordinarily a prosecutor is prohibited from calling a rebuttal witness to offer testimony which should have been received in his case in chief. People v. Quick (citation omitted). It is still the rule, however, that the decision as to 'whether evidence which could have been offered before resting may be given in rebuttal is a matter within the discretion of the trial court'. People v. Utter, 217 Mich. 74, 185 N.W. 830 (1921)'. ³ We find the decision of the trial court was not an abuse of discretion here.

Part of the testimony of the witness was proper rebuttal because it directly tended to disprove exact testimony given by a witness. Parker, 65 Mich.App. p. 595, 237 N.W.2d 572. The defendant indicated on direct examination that she was not familiar with the operation of a gun and, furthermore, she did not know this particular gun was loaded. The testimony of the rebuttal witness directly refuted this testimony. Defendant, several hours before the commission of the homicide, gave the rebuttal witness the handgun for safekeeping. She specifically instructed the witness on how to operate the gun and further indicated that the witness should be careful as the gun was loaded. We can only conclude this portion of the testimony was proper rebuttal.

Furthermore, it is clear that the rest of the testimony was also proper. In Quick, the Supreme Court made an exception to the normal order of proof where 'good cause' is shown. See also 2 Gillespie, Michigan Criminal Law & Procedure (2d ed.), § 609, p. 790. This is such a case. The trial judge was faced with a situation where the prosecutor could either re-open his proofs or present the...