People v. Harris

• Decision Date: 03 October 1978
• Docket Number: Docket No. 77-1232
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Lewis HARRIS, Defendant-Appellant. 86 Mich.App. 301, 272 N.W.2d 635
• Court: Court of Appeal of Michigan — District of US

Page 635

272 N.W.2d 635

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Lewis HARRIS, Defendant-Appellant.

Docket No. 77-1232.

86 Mich.App. 301, 272 N.W.2d 635

Court of Appeals of Michigan.

Oct. 3, 1978.

Released for Publication Jan. 3, 1979.

[86 MICHAPP 302] Durant & Card by Richard Durant, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Paul C. Louisell, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., V. J. BRENNAN and ROBERT H. CAMPBELL, ^* JJ.

PER CURIAM.

Defendant was found guilty by a [86 MICHAPP 303] jury of the offense of carrying a dangerous weapon in a motor vehicle, which is proscribed by M.C.L. § 750.227; M.S.A. § 28.424.

It was undisputed at trial that a pistol was removed by police from a car in which defendant and a female companion had been riding. The case for the prosecution rested mainly upon the testimony of a police officer who stated he had seen defendant leave the driver's position of the car and walk around it to the passenger's side, where he re-entered and attempted to conceal a handgun between the seats. Witnesses for the defendant testified that defendant was riding as a passenger only and had exited the car to examine it for a noise it was making. Both defendant and his companion denied knowledge that a gun was in the car. The vehicle was owned by neither defendant nor his companion.

While presenting its case in chief, the prosecution was permitted, over defense objection, to introduce prior consistent statements by one of the arresting officers, Officer Holt, who had testified for the people and had been impeached on cross-examination by evidence of prior contradiction. The trial court ruled such statements admissible whenever prior inconsistencies have been brought out. Upon the close of the people's case, defendant moved the court In limine to prohibit the prosecutor from impeaching one of defendant's witnesses, his companion, by reference to a prior misdemeanor conviction for accosting and soliciting. The trial court denied the motion, reasoning that witnesses, other than an accused, may be so impeached.

Both during voir dire and in its instructions after trial, the court informed the jury of the state's burden of proof. It told them on three [86 MICHAPP 304] occasions that defendant was presumed innocent Until the state presented sufficient evidence to convince the jury of defendant's guilt beyond a reasonable doubt. The court did not specifically charge that the presumption of innocence "goes into the jury room".

Contrary to defendant's objection, we find sufficient evidence on the record to support his conviction, see People v. Little, 58 Mich.App. 12, 226 N.W.2d 735 (1975), People v. Filip, 58 Mich.App. 564, 228 N.W.2d 464 (1975), People v. Stephens, 58 Mich.App. 701, 228 N.W.2d 527 (1975), and no error in the court's burden of proof instructions, People v. Heard, 31 Mich.App. 439, 188 N.W.2d 24 (1971), see People v. Parsons, 105 Mich. 177, 186-87, 63 N.W. 69, 72 (1895).

We agree with defendant, however, that the court erred in allowing defendant's witness to be impeached by misdemeanor convictions and in permitting the prosecutor's witness to be rehabilitated by evidence of prior consistent statements.

People v. Renno, 392 Mich. 45, 219 N.W.2d 422 (1974), holds that misdemeanor convictions may not be "used by the prosecution Solely for impeachment purposes ". Id., at 55, 219 N.W.2d at 425. (Emphasis in original.) That decision is based on M.C.L. § 600.2158; M.S.A. § 27A.2158 and M.C.L. § 600.2159; M.S.A. § 27A.2159, which apply in this case. By their own language, these code sections respectively govern the impeachment of any "person * * * giving evidence," and any "person * * * as a witness." ¹ Although Renno factually involved a witness who was a defendant, the case's analysis and holding apply to all witnesses. People v. Harris, 56 Mich.App. 517, 528, 224 N.W.2d [86 MICHAPP 305] 680, 685 (1974). See also People v. Bowen, 77 Mich.App. 684, 259 N.W.2d 189 (1977), People v. Foster, 77 Mich.App. 604, 259 N.W.2d 153 (1977).

Prior consistent statements are inadmissible to rehabilitate a witness except to rebut a charge of recent fabrication, Brown v. Pointer, 41 Mich.App. 539, 200 N.W.2d 756 (1972), Rev'd on other grounds, 390 Mich. 346, 212 N.W.2d 201 (1973), or as evidence of the fact that a witness had made a prior inconsistent statement, Stewart v. People, 23 Mich. 63 (1871). Whether evidence is probative of either of these facts is a matter within the trial court's discretion. See Id., 76. Neither party contends that the prior consistent statements of Officer Holt were admissible to disprove a charge of recent fabrication. We do not have to decide whether it was an abuse of discretion to allow the evidence under the rule of Stewart v. People, as it is apparent at a glance (see tr., pp. 124, 129, 132) that the witness did not deny making the prior inconsistent statements. Cf. People v. Hallaway, 389 Mich. 265, 277, 205 N.W.2d 451, 455 (1973) (Stewart clearly inapplicable when no inconsistent statement made), Leach v. Detroit Electric R. Co., 129 Mich. 286, 288, 88 N.W. 635 (1902) (same). But see Woodrow v. Johns, 61 Mich.App. 255, 232 N.W.2d 688 (1975).

The cumulative effect of both rulings by the trial court was to diminish the credibility of a defense witness and to bolster the credibility of a witness for the prosecution. Since the evidence presented by each side was directly conflicting, witness credibility was crucial to the jury's verdict. See People v. Rahar, 37 Mich.App. 577, 195 N.W.2d 77 (1972). Thus, we cannot say that only harmless error occurred. People v. Foster, 77 Mich.App. 604, 259 N.W.2d 153 (1977), which found harmless error in [86 MICHAPP 306] allowing impeachment by reference to prior misdemeanors, is clearly distinguishable. In that case the actual offense was never revealed to the jury, the question and answer was stricken by the trial judge, and the error was further cured by subsequent instructions.

This last point leads us to discuss another issue which was neglected by both sides in their briefs. The issue is unlikely to reoccur at trial, but its resolution determines the propriety of our reaching the merits of this case. The record shows that evidence of the offense used to impeach defendant's witness was first introduced by defense counsel and that the prosecutor made only oblique references thereto, not clearly understandable as references to the witness's prior conviction, but for the witness's own earlier admissions. ² Defense [86 MICHAPP 307] counsel's apparent purpose was to reduce the prejudicial impact of the conviction evidence by mentioning it himself. This presents a question in our minds whether defendant has waived his objection. ³ See State v. Burt, 249 N.W.2d 651 (Iowa, 1977), State v. Miller, 229 N.W.2d 762 (Iowa, 1975), Cf. People v. Iaconis, 29 Mich.App. 443, 185 N.W.2d 609 (1971), Aff'd sub nom., People v. Bercheny, 387 Mich. 431, 196 N.W.2d 767 (1972) (issue of waiver of objection to ruling on impeachment by witness's failure to take stand), People v. Draine, 72 Mich.App. 592, 250 N.W.2d 139 (1976) (same), People v. Smith, 81 Mich.App. 561, 266 N.W.2d 40 (1978) (same). We hold that he has not.

No Michigan cases have decided this precise issue. In People v. Renno, supra, the defendant first admitted his prior misdemeanor convictions on [86 MICHAPP 308] direct examination by his counsel, yet the Supreme Court reached the merits of his objection on appeal without questioning whether the issue had been properly preserved. ⁴ Renno, however is significantly distinguishable from the case before us in that the prosecutor's remarks in Renno standing alone clearly referred to the witness's prior conviction. ⁵ Various panels of this Court have split on the analogous issue of whether a defendant, by staying off the stand, waives his objection to the trial court's erroneous preliminary ruling that he could be impeached by certain evidence. See People v. Iaconis, supra, (issue moot), People v. Draine, supra, (issue preserved), People v. Smith, supra, (issue preserved).

The Iowa Courts, in the only other cases we have found directly on point, have reached the merits of the evidentiary objection on appeal despite the opponent's trial tactics in admitting the evidence himself after denial of an In limine motion to exclude. State v. Burt, supra, State v. Miller, supra.

As a general rule, Wigmore states that an error in admitting evidence is cured by the opponent's use of evidence similar to that to which he objected, unless he uses it in self defense to explain or rebut the original evidence. 1 Wigmore, Evidence (3d ed.), § 18, p. 345.

We choose to follow the Iowa rule and expand [86 MICHAPP 309] the "self-defense" exception noted by Wigmore. Our decision is based on a policy of furthering the practical resolution of trial court errors at trial.

A motion In limine to exclude evidence is eminently proper. Lapasinskas v. Quick, 17 Mich.App. 733, 170 N.W.2d 318 (1969). When successful, it is the only realistic means by which an opponent of excludable evidence can avoid prejudice to his case. See Anno.: Modern status of rules as to use of motion in limine or similar preliminary motion to secure exclusion of prejudicial evidence or reference to prejudicial matters, 63 A.L.R.3d 311, 313. ⁶ When the motion fails through an error by the trial court, the In limine procedure still serves a practical purpose. Knowing what the court plans by way of admission of testimony, the opponent can plan a strategy that will reduce the harmful impact of the court's error such as the strategy of being the first to introduce the objectionable evidence, as adopted by defendant in this case. If the opponent's tactics are successful, they may produce a verdict in his favor, despite the judge's mistake. This practice serves all...