People v. Graves, Docket No. 4323
| Decision Date | 24 December 1968 |
| Docket Number | No. 2,Docket No. 4323,2 |
| Citation | 15 Mich.App. 244,166 N.W.2d 480 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Franklin GRAVES, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
John W. Appleford, Wilson, Basso, Appleford & Basso, Birmingham, for appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Thomas C. Plunkett, Pros. Atty., Oakland County, Pontiac, for appellee.
Before LESINSKI, P.J., and QUINN and MOODY, * JJ.
William Franklin Graves was convicted by a jury of armed robbery. 1 He appeals.
The record reveals that an eyewitness, both at the preliminary examination and at the trial of this cause, identified the defendant as one of the persons who robbed him. However, the trial testimony of this witness contained a number of inconsistencies with the testimony he offered at the preliminary hearing.
During the course of the trial the defendant's counsel, following the guidance of the trial judge, properly used the examination transcript and confronted the eyewitness with a number of inconsistent statements. Counsel first asked the question. If he determined the answer inconsistent with the prior testimony, he then read the question and answer transcribed at the examination ans asked the witness whether he could confirm, deny or recall the prior statements made. On most occasions the eyewitness did not recall answers previously given.
Later the defendant's lawyer called as an impeachment witness the court reporter who transcribed the testimony at the preliminary hearing. The examination transcript, from which the defense lawyer questioned the eyewitness, was offered in evidence. Thereupon, the prosecutor stipulated that such record was a complete and accurate portrayal of the proceedings at the preliminary examination. The court did not accept the transcript itself as an exhibit and sustained the prosecutor's objection to allowing the reporter to read verbatim from his original punched notes of the preliminary examination.
The defendant first claims that reversible error was committed by the trial court for not permitting the court reporter as an impeachment witness to read from his original punched notes certain testimony from the preliminary examination.
It has been well established in Michigan, at least since Smith v. People (1852), 2 Mich. 415, that unless the witness admits the prior inconsistent statements, which the eyewitness did not in this instance, he can be impeached by independent evidence.
However, in the case at bar, defendant's claim of reversible error has no merit. First, the defendant's counsel did not put questions to his impeaching witness in proper form.
"The language which it is claimed the witness used must be given, and he be asked if he used it.' (Rice v. Rice (1895), 104 Mich. 371, 379, 62 N.W. 833).
'In the present case the only offer made was to read from the testimony given by Wirth on the former hearing. * * *' People v. Considine (1895), 105 Mich. 149, 166, 63 N.W. 196, 201.
Likewise, this was the attempted improper procedure used in the instant case.
Second, and most important, the content and import of the impeachment testimony which the reporter could have given was already before the jury. It was stipulated by the People that the prior transcriptions read by the defense attorney to the eyewitnesses were an 'accurate and complete' record of the preliminary examination.
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