People v. Hallaway
| Decision Date | 27 March 1973 |
| Docket Number | No. 6,6 |
| Citation | 389 Mich. 265,205 N.W.2d 451 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John HALLAWAY, Defendant-Appellant. |
| Court | Michigan Supreme Court |
Judith K. Munger, Asst. Appellate Defender, Detroit, for defendant-appellant.
Before the Entire Bench.
On March 26, 1968, a Recorder's Court jury found the defendant guilty of assault with intent to rob, being armed. This appeal raises certain claims of error in that trial.
In the early evening of May 24, 1967, a man came to the door of a residence at 3127 Lakeview Street, in the city of Detroit. Representing himself to be from the gas company, the man was admitted and directed to the basement. Shortly thereafter, two other men appeared in the house, both of whom had stockings pulled over their heads. The alleged gas man reappeared, armed with a gun, and announced a holdup. The three occupants of the home, one Delphine Baranek, her mother, and her uncle, were directed to lie on the floor. While the robbers were still present in the home, the mother and uncle ran out the back door screaming. Thereupon, the robbers took a small duffel bag from one of the bedrooms and fled. The duffel bag contained certain papers, including copies of the income tax returns of Joseph Szalapata, the uncle.
It happened that at this time there was a group of teenagers on the sidewalk on Lakeview Street, somewhere between the At approximately 2:35 in the early morning of the following day, a car of the same description, and bearing the license number observed by the teenagers, was found burned on the side of a road in Sterling Township. Inside the car a charred black bag and a two-gallon can of gasoline were found. Remnants of the income tax returns of Mr. Szalapata were found in the bag. This automobile was registered in the name of John Hallaway, the defendant in this cause.
Baranek residence and the intersection of Lakeview and Mack Avenue. Three men had walked past them a few moments before the holdup, heading toward Charlevoix and away from Mack. The same three men were seen by the teenagers shortly thereafter, running back down Lakeview at about the same time screams and shouting were heard from the Baranek residence, and some of the teenagers began running after the fleeing men, who were observed to enter an automobile parked near the corner of Lakeview and Mack. The license number of the vehicle was observed by one of these young witnesses and was written down and later given to the police.
On June 5, 1967, the defendant was arrested on a warrant issued May 31, 1967. On June 13, 1967, an examination was held in Recorder's Court and the defendant was bound over for trial on a charge of armed robbery.
On March 20, 1968, a trial was commenced before the Honorable Robert E. DeMascio, Recorder's Court Judge. Defendant interposed a defense of alibi and the identification of the defendant as a participant in the felony was the principal contested issue at the trial. None of the three victims of the crime were able to identify the defendant in Court. The uncle was described as being 71-years of age and somewhat senile. His testimony was largely limited to identification of the charred income tax returns.
Ronald William Rogers was called as a witness. He was 11-years old at the time of the trial. On the day of the robbery, he lived about 8 houses from the Baraneks. He testified that he was playing ball in front of a boy friend's house; that three men had walked past him in one direction; that about 20-minutes later, the three men returned and were running in the opposite direction. He stated that he got a good look at one of the men, remembering that he had small ears. Then the following occurred:
'Q. All right, do you see that man in this courtroom?
'A. Yes.
'Q. Would you point him out, please.
On cross-examination, it was brought out that during his testimony at the preliminary examination, the witness Rogers had not mentioned any pecularity with respect to the ears of the man he had observed on Lakeview Street. It was also brought out that the witness had observed the defendant at the police station on the Sunday preceding the preliminary examination. That would be June 11, 1967. This observation was made through a one-way glass partition. Further cross-examining the witness Rogers, defense counsel asked:
'Q. The day that you were at the police station, and you were asked to look through this glass, you identified Mr. Hallaway, didn't you?
'A. Yes.
'Q. And some of your friends did not identify him?
Thereafter, Robert Brown was called as a witness. He was 16-years old and was one of the teenagers on the street at the time of the robbery. Brown also testified as to the movements of the three men and, like Rogers, stated that a deformity in one of the men's ears had attracted his attention 'Q. Now, do you see any of those men in the courtroom?
at the time. Brown related writing down the license number of the vehicle and, after describing the event, was asked the following question by the assistant prosecuting attorney:
The witness Brown also testified on cross-examination that he, too, had seen the defendant at the police station on Sunday, June 11, 1967, through a one-way glass, and that he recognized the defendant on that occasion.
Defense counsel asked these questions:
'Q. When you looked through the one-way glass on that Sunday at police headquarters, how many men did you see in that room?
'A. I just seen the one. That is all that I was paying attention to because the guy said look at that guy sitting down and see if it is him. That is all that I paid attention to.
'Q. Did you tell him it wasn't him or it was him?
On redirect examination, witness Brown was asked about a conversation he had had with a police officer a few days after the event. Without objection, he was asked whether he had told the officer anything about one of the robbers having a deformed ear. Brown could not remember having made such a statement. It was also brought out on further cross-examination that the witness Brown had not mentioned a deformed ear at his testimony at the preliminary examination.
It was at this point of the trial that Officer John Sokolsky was called to the stand. He testified to having answered a radio run to the Lakeview address on May 24, 1967, and that during his investigation there, he spoke to two witnesses, Robert Brown and one Bernard Gambrell. The officer stated that the witnesses had given him a description of the holdup men, their vehicle, and its license number. He was asked to relate the description he had been given by the witnesses. Defense counsel objected on the ground of hearsay. After colloquy between the court and counsel, the court overruled the objection and permitted the officer to testify as to the description he had been given by the witnesses.
Hearsay. It is claimed on appeal that a prejudicial error was committed by the trial judge in overruling the objection and permitting the officer to testify as to the description given him by the witnesses.
Hearsay is defined as an extra judicial statement which is offered for the purpose of proving the truth of the thing said. While some writers have suggested that the hearsay rule need not be applied to the extra judicial statements of a declarant, who later testifies as a witness, this Court has not recognized such an exception to the hearsay rule. Of course, prior inconsistent statements of a witness can be shown for impeachment purposes. But this is not properly an exception to the hearsay rule. Prior inconsistent statements are not admissible to prove the truth of the thing said. They are offered, rather, to prove that the inconsistent statement was in fact made irrespective of its truth for the purpose of impeaching contrary testimony from the witness stand. Where the prior extra judicial statement of a witness agrees with his testimony, the out-of-court remark is self-serving, and is not generally permitted under any established exception to the hearsay rule.
During the cross-examination of witness Brown, defense counsel probed for prior inconsistent statements. He was certainly entitled to do this. He was entitled If the officer's testimony was offerred for the purpose of proving the truth of the thing said, that is, for the purpose of proving that one of the robbers had a deformed ear, then the statement is obviously hearsay and obviously self-serving. But it is suggested that against the background of other inquiry into prior statements of the witness, it is competent to show that the witness made a prior consistent statement and that in such case the extra judicial statement is offered not directly to prove the truth of the thing said, but rather merely to prove the fact of his having made a prior consistent statement. Whatever weight the minds of laymen would give to evidence that the witness has told his story on numerous occasions, the law does not permit the credibility or weight of sworn testimony to be thus bolstered.
even to show that details of the witness' testimony were omitted from previously given accounts of the incident by the witness. Certainly, if Brown had not been a witness, it would have been clearly inadmissible for the officer to relate Brown's extra judicial description of the robber.
Justice Cooley, in Stewart v. People, 23 Mich. 63 (1871), held that a prior consistent statement of a witness may be admitted where a prior inconsistent statement has been put in...
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