People v. Heard, Docket No. 17691

• Decision Date: 10 February 1975
• Docket Number: Docket No. 17691,No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert HEARD, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 331

227 N.W.2d 331

58 Mich.App. 312

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert HEARD, Jr., Defendant-Appellant.

Docket No. 17691.

Court of Appeals of Michigan, Division No. 1.

Feb. 10, 1975.

Released for Publication April 4, 1975.

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., Dominick R. Carnovale, Chief, Appellate Div., Thomas M. Khalil, Asst. Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and BRONSON and CAVANAGH, JJ.

R. B. BURNS, Presiding Judge.

The Cherry Hill Bar in Detroit was robbed at gunpoint by two men. One of the bar's patrons at the time of the robbery was an off-duty policeman, Stanley Rapaski. Officer Rapaski had his service revolver with him and attempted to stop the robbery. Gunshots were exchanged; one of the thieves was wounded in the leg; and officer Rapaski was killed. After awhile, defendant, wounded in the leg, turned himself in to the police. He was tried and convicted of felony murder. M.C.L.A. § 750.316; M.S.A. § 28.548. He appeals the conviction.

During the course of defendant's trial, the prosecution called Cedric Baker as a witness. Baker was allegedly present when defendant and another man prepared to rob the Cherry Hill Bar. He was allegedly present when they returned from the robbery; and he helped them dispose of what he knew to be the fruits of the robbery. When Baker was produced at trial, the defense contended that he was an accomplice to the robbery and that, therefore, the prosecution had no right to cross-examine him like other Res gestae witnesses. People v. Fidel, 37 Mich.App. 338, 194 N.W.2d 732 (1971); People v. Lewis, 47 Mich.App. 450, 209 N.W.2d 450 (1973) and People v. Szymanski, 52 Mich.App. 605, 218 N.W.2d 95 (1974). The prosecution relied upon M.C.L.A. § 767.40a; M.S.A. § 28.980(1) for its authority to cross-examine. The defense never examined the witness.

Michigan law does require the prosecution to produce all Res gestae witnesses. M.C.L.A. § 767.40; M.S.A. § 28.980. Because it is obliged to call these witnesses, the prosecution is not expected to vouch for their credibility and may treat them as if they were called by the defense. M.C.L.A. § 767.40a; M.S.A. § 28.980(1). But it is well settled that an accomplice does not have to be called. People v. Threlkeld, 47 Mich.App. 691, 209 N.W.2d 852 (1973).

'Absent the obligation, a witness thus called becomes the people's witness and subject to the settled rules concerning the examination of any witness voluntarily called by either party.' Fidel, supra, 37 Mich.App. at 342--343, 194 N.W.2d at 734.

In short, since the prosecution did not first have Baker declared a hostile witness, it was error to allow him to be cross-examined by the prosecution.

This error was compounded because the prosecution used the cross-examination to impeach the witness. Baker could not remember anything relating to the crime even after he had been read his signed confession (out of the jury's presence). As a result, the prosecutor began to ask him, in front of the jury, if he had ever made specific admissions (extracted from the confession) to police officers. Baker always failed to remember. This line of questioning was properly objected to, but the objection was overruled on the ground that the questioning was permissible for impeachment purposes. Since the existence of such a confession was Never directly proven, the questioning was not permissible for that purpose. 1 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 438, pp. 538--542, 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 611, pp. 791--792, and McCormick, Evidence (2d ed), § 34--37, pp. 67--75. The questioning had merely laid the foundation for the admission of Baker's confession. As that was not submitted for admission, the questioning was immaterial, and the better practice would have been to instruct the jury to disregard it.

Defendant also claims that it was error to delve into the substance of Baker's prior statement once it had been determined that he could not remember either the substance or having made the statement. People v. Durkee, 369 Mich. 618, 120 N.W.2d 729 (1963). While there is dicta in Durkee disapproving of the prosecution tactic that brings a witness to the stand primarily to impeach him with otherwise inadmissible and highly prejudicial material, the rule of that case concerned the adequacy of the trial court's instruction to negate the impact the prior statement had on establishing the substantive elements of the prosecution's case. The trial judge's instructions were far more adequate here than those in Durkee, supra. It is still the law in Michigan that a witness can be impeached with prior inconsistent statements, even if he does not remember them, once the proper foundation is laid. People v. Brown, 45 Mich.App. 505, 206 N.W.2d 730 (1973); People v. Rodgers, 36 Mich.App. 211, 193 N.W.2d 412 (1971); Rodgers v. Blandon, 294 Mich. 699, 294 N.W. 71 (1940); Pringle v. Miller, 111 Mich. 663, 70 N.W. 345 (1897) and Smith v. People, 2 Mich. 416, 417--418 (1852).

While the prosecution was erroneously allowed to cross-examine its own witness and to confront that witness with immaterial prejudicial material, we must determine if these errors were so substantial as to require a new trial. The standard to be applied here is outlined in People v. Robinson, 386 Mich. 551, 563, 194 N.W.2d 709, 713 (1972), quoting from People v. Wichman, 15 Mich.App. 110, 116, 166 N.W.2d 298, 302 (1968):

"First, is the error so...