People v. Gilbert

• Decision Date: 01 June 1990
• Docket Number: Docket No. 111946
• Citation: 455 N.W.2d 731,183 Mich.App. 741
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul Edward GILBERT, Defendant-Appellant. 183 Mich.App. 741, 455 N.W.2d 731
• Court: Court of Appeal of Michigan — District of US

Page 731

455 N.W.2d 731

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul Edward GILBERT, Defendant-Appellant.

Docket No. 111946.

183 Mich.App. 741, 455 N.W.2d 731

Court of Appeals of Michigan.

Submitted Feb. 13, 1990.

Decided May 21, 1990.

Released for Publication June 1, 1990.

[183 MICHAPP 742] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Ward L. Clarkson, Pros. Atty., and Charles D. Hackney, Asst. Atty. Gen., for the People.

State Appellate Defender by P.E. Bennett, for defendant-appellant on appeal.

Before MICHAEL J. KELLY, P.J., and WAHLS and SAWYER, JJ.

[183 MICHAPP 743] MICHAEL J. KELLY, Presiding Judge.

Defendant was convicted by a jury of conspiracy to commit second-degree murder, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1), assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, and unarmed robbery, M.C.L. Sec. 750.530; M.S.A. Sec. 28.798. The court sentenced defendant to two sentences of life imprisonment for his conspiracy and assault convictions and ten to fifteen years for the robbery conviction, the sentences to run concurrently. Defendant now appeals his convictions and sentences as of right.

Defendant's convictions arise out of the attempted murder and robbery of Richard Morgan in July of 1987. Morgan picked up defendant and his codefendant, Carl Maddox, as they were hitchhiking one night. All three men had been drinking, and they continued to drink as they drove around the Flint area. When they stopped at a nearby field, defendant and Maddox assaulted and robbed Morgan, leaving him for dead near a gravel pit. Morgan survived the assault and testified at trial that he had been beaten and stabbed by the two men and that the dark-haired one (defendant) approached him with a knife.

The prosecution's theory of the case was that, after defendant and Maddox had beaten and robbed Morgan, defendant attempted to kill Morgan with a knife. Maddox testified that defendant suggested killing Morgan when they got out of the car. Maddox testified that he kicked Morgan and that defendant stabbed Morgan and cut his throat.

Defendant's theory of the case was that Maddox beat and stabbed Morgan while defendant was too drunk to notice or remember what happened. Defendant's version was supported by the testimony of Harvey Duranseau, whom the prosecutor called as a res gestae witness. Duranseau testified that on the morning in question he was near the [183 MICHAPP 744] gravel pit and saw a man fitting Maddox's description drag another man from a car, roll him into a lake, and cut him with a knife. Over defendant's objection, the trial court permitted the prosecutor to impeach Duranseau's credibility. Duranseau apparently left the scene without assisting the victim. Duranseau testified that he did not inform the police of the incident because his presence at the gravel pit was a violation of his parole. Duranseau did not report the incident until May of 1988, almost a year later.

At the close of proofs, defendant moved for a mistrial, which the court denied. When instructing the jury regarding the charge of conspiracy to commit first-degree murder, the court also instructed the jury regarding the lesser included offense of conspiracy to commit second-degree murder. The court did this by reading the jury the instruction regarding criminal conspiracy, followed by the instructions for first- and second-degree murder. Later on the court reread these instructions at the jury's request. Defendant did not object to these instructions. The jury found defendant guilty of the lesser included offense of conspiracy to commit second-degree murder and of unarmed robbery and assault with intent to commit murder.

I

Defendant argues that reversal is required because the circuit court erred in permitting the prosecutor to impeach the credibility of a res gestae witness, Harvey Duranseau, and because the prosecutor improperly argued to the jury that Duranseau's testimony was fabricated. We disagree.

The general rule under the common law is that [183 MICHAPP 745] a party may not impeach his own witness. People v. White, 401 Mich. 482, 508, 257 N.W.2d 912 (1977). One of the numerous exceptions to this general rule is that the prosecutor may cross-examine and impeach res gestae witnesses he is required by law to produce at trial. Id.

Under the present version of the res gestae witness statute, M.C.L. Sec. 767.40a; M.S.A. Sec. 28.980(1), which was in effect during defendant's trial, the prosecutor no longer has to produce res gestae witnesses at trial. M.C.L. Sec. 767.40a(5); M.S.A. Sec. 28.980(1)(5); People v. Calhoun, 178 Mich.App. 517, 522, 444 N.W.2d 232 (1989). Subsection (6) of the res gestae statute provides:

Any party may within the discretion of the court impeach or cross-examine any witnesses as though the witness had been called by another party. [M.C.L. Sec. 767.40a(6); M.S.A. Sec. 28.980(1)(6).]

Thus, although the prosecutor is no longer required to produce all res gestae witnesses, he may still impeach or cross-examine a witness whom he himself called if permitted by the trial judge. Whether to permit this impeachment is left to the trial judge's discretion under the statute.

Here, Mr. Duranseau's testimony gave an account of the crime which differed greatly from that of the prosecutor's other witnesses. Duranseau could not remember key details and did not report witnessing the crime until almost a year after it occurred. The circuit court did not err in permitting the prosecutor to impeach and cross-examine Mr. Duranseau.

Nor was it improper for the prosecutor to argue that Duranseau's testimony was fabricated. The prosecutor is permitted to comment on the testimony in a case and to argue that, upon the facts [183 MICHAPP 746] presented, a witness is not worthy of belief or is lying. People v. Sharbnow, 174 Mich.App. 94, 100, 435 N.W.2d 772 (1989), lv. den. 433 Mich. 893 (1989). The prosecutor's comments were based upon the evidence at trial. He could properly argue that Duranseau's testimony was not credible.

II

Defendant argues that his convictions must be reversed because the prosecutor improperly questioned defendant regarding his exercise of his right to remain silent while in police custody. We agree that this was improper, but find that reversal is not required.

In cross-examining defendant, the prosecutor asked the following questions:

Q. You didn't give a statement in this matter, did you?

A. No, sir, I did not.

Q. So I guess you didn't try to frame Mr. Maddox, did you?

A. No, sir, I didn't. That was information he compiled from his attorney.

Defense counsel did not object to this questioning. Following the prosecutor's cross-examination of defendant, the court instructed the jury as follows:

Prior to redirect, I want to just instruct and caution the jury relative to the question that he gave to the Defendant that he gave no statement to the police, and I just want to instruct--I think we've already covered it--that an accused person has a right against self-incrimination, including giving a statement. Keep that instruction in mind at this point.

Where a defendant fails to object to a question [183 MICHAPP 747] or testimony at trial, the propriety of its admission is generally not preserved for appeal. MRE 103(a)(1). However, review is appropriate where the issues raised present a significant constitutional question. People v. Davis, 181 Mich.App. 354, 355, 448 N.W.2d 842 (1989).

In People v. Bobo, 390 Mich. 355, 359, 212 N.W.2d 190 (1973), our Supreme Court held that the prosecutor may not use a defendant's exercise of his Fifth Amendment right to remain silent against him at trial; a defendant's silence during police questioning may be used only to impeach his assertion that he made a statement. See also People v. Sain, 407 Mich. 412, 415, 285 N.W.2d 772 (1979).

Here, defendant did not claim to have made any prior statements to police, so the prosecutor's questioning regarding defendant's failure to make a statement was improper under Bobo and Sain. Despite this, we find that any error was harmless and does not require reversal of defendant's convictions. Two inquiries must be made to determine whether an error was harmless: first, whether the error was so offensive to the maintenance of a sound judicial system that it can never be regarded as harmless and, second, whether the error was harmless beyond a reasonable doubt. People v. Robinson, 386 Mich. 551, 563, 194 N.W.2d 709 (1972). The prosecutor's questions, despite their constitutional implications, were not so offensive as to be intolerable. Nor did the questions and answers have any impact on the verdict. The evidence of defendant's guilt was overwhelming. Both the victim, Morgan, and the codefendant, Maddox, testified that defendant attacked Morgan with a knife; Duranseau's testimony to the contrary was simply not credible. Additionally, defendant's failure to give a statement to the police was [183 MICHAPP 748] consistent with defendant's testimony that he was drunk on the night in question and did not remember anything about the assault on Morgan. Evidence that defendant did not make a statement to police had a negligible effect on the jury's verdict, and was harmless beyond a reasonable doubt.

III

Defendant argues that the circuit court erred in instructing the jury regarding the lesser included offense of conspiracy to commit second-degree murder and that his conviction for this offense must be reversed. Defendant contends that the offense of conspiracy to commit second-degree murder is nonexistant, so it was erroneous for the court to instruct the jury regarding this offense. We agree and vacate defendant's conspiracy conviction.

There is currently a split of authority in this Court regarding whether conspiracy to commit second-degree murder exists as a lesser included offense of conspiracy to commit first-degree murder. Several panels of this Court have reasoned that...