People v. Jones

• Decision Date: 27 July 1973
• Docket Number: No. 1,Docket No. 14071,1
• Citation: 210 N.W.2d 145,48 Mich.App. 102
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George JONES, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 145

210 N.W.2d 145

48 Mich.App. 102

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George JONES, Defendant-Appellant.

Docket No. 14071.

Court of Appeals of Michigan, Division No. 1.

July 27, 1973.

Released for Publication Sept. 10, 1973.

William R. Stackpoole, 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 P. Smith, Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and HOLBROOK and BASHARA, JJ.

HOLBROOK, Judge.

Defendant was charged with the second-degree murder of Leroy Adams on August 30, 1971. Adams was shot five times at defendant's home. Defendant admitted shooting Adams but claimed self-defense. He was convicted of manslaughter in a jury trial and was sentenced to 5 to 15 years in prison on February 10, 1972. He raises four issues on appeal.

Defendant first objects on various grounds that the trial court's jury instruction on the matter of self-defense was erroneous. At no time did defense counsel object to the standard form instruction taken from 3 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1694, pp. 2047--2048. Moreover, when the trial judge asked after all the instructions were given whether defense counsel was satisfied with them, defense counsel answered affirmatively except as to one noted objection to be discussed below. Any objection to the self-defense instruction now is therefore untimely and will not be considered on appeal in the absence of a showing of substantial injustice. People v. Miron, 31 Mich.App. 142, 187 N.W.2d 497 (1971); GCR 1963, 516.2.

Defendant next objects that it was error for the trial court to refuse to instruct the jury as timely requested concerning the good character of the defendant. No character witnesses were offered by the defense at trial. The only purported character evidence offered was defendant's own testimony that he was married, had 10 children, and was honorably discharged from the armed services. Where a defendant offers evidence of his good character, it is normally error to refuse a timely request to charge the jury upon the effect of the character testimony. People v. Simard, 314 Mich. 624, 631, 23 N.W.2d 106, 109 (1946). At the most defendant's testimony consisted of factual statements of a neutral character, so no instruction was required. People v. Knoll, 258 Mich. 89, 242 N.W. 222 (1932).

Defendant thirdly objects that the trial court erred in allowing rebuttal testimony which indicated that a defense witness stated he was being paid for his testimony. Defense witness Nathaniel Griffith testified that he saw defendant and deceased meet on a street the day of the shooting and have an argument about a debt between them and about the slashing of the tires on defendant's truck. Griffith said the decedent pulled a gun and threatened to kill the defendant, and the defendant turned his back and walked away. Decedent, according to Griffith, later offered him and some others $800 to kill the defendant. Willie Adams, son of the decedent, was then recalled to the stand by the prosecutor and on redirect examination testified, first before the judge alone and then before the jury, that Nathaniel Griffith had told him in the court hallway prior to testifying that he had received $20 from the defendant to testify on his behalf and if Adams gave him another $20 he would leave and not testify. Defense counsel objected to this testimony as hearsay. The trial judge allowed the testimony to be admitted on the ground it would only go to the credibility of Nathaniel Griffith. Defense counsel further objected that no foundation had been laid for the impeachment of Griffith during his previous examination. Hearsay evidence is testimony in court of a statement made out of court, the statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. McCormick, Evidence (2d ed), § 246, p. 584. The testimony of Willie Admas in issue here was, therefore, hearsay if offered for its substance. If the testimony was offered to show the bias or interest of the witness it would only be relevant if truthful, and therefore would still need be excluded as hearsay, unless some exception to the hearsay rule applies. We know of no hearsay exception that would be applicable here.

However, otherwise inadmissible evidence may be used to impeach the testimony of the defendant. People v. Graham, 386 Mich. 452, 192 N.W.2d 255 (1971). The trial judge allowed the testimony's admission as going to the credibility of Nathaniel Griffith, I.e., to impeach his testimony. Of course, Griffith could be impeached by showing his prior statements were inconsistent with Adams' testimony, but he had not been questioned about the alleged conversation with Adams in the court hallway, so there were no statements of his that could be subsequently impeached by Adams' testimony. McCormick, Evidence (2d ed), § 40, pp. 80--81; Oppenheim v. Rattner, 6 Mich.App. 554, 559, 149 N.W.2d 881, 883 (1967). In Oppenheim this Court found error where the trial court allowed an eyewitness, over objection of counsel, to testifying concerning what the eyewitness said to the plaintiff's driver and there had been no prior denial of such conversation by the driver. Cf. People v. Finnister, 33 Mich.App. 283, 189 N.W.2d 835 (1971). See, also 3A Wigmore on Evidence (Chadbourn Rev.) § 953, pp. 800--801. No foundation was laid for the impeachment of Nathaniel Griffith by proof of prior inconsistent statements, and therefore the allowance of Willie Adams' testimony into the record as an attack on Griffith's credibility was erroneous. Ebel v. Saginaw Road Commissioners, 386 Mich. 598, 608, 194 N.W.2d 365, 369 (1972); 98 C.J.S. Witnesses § 480, pp. 362--364. This is not the case where a subsequent witness's testimony is allowed in evidence to contradict a different story told by a previous witness. See E.g., People v. Rodgers, 388 Mich. 513, 201 N.W.2d 621 (1972). Since Nathaniel Griffith was the sole person to corroborate defendant's own testimony concerning threats made by the deceased against the defendant the day of the killing, which testimony had an obviously crucial bearing on defendant's claim on self-defense, we cannot say that the admission of Adams' testimony was harmless error beyond a reasonable doubt. People v. Robinson, 386 Mich. 551, 563, 194 N.W.2d 709, 713 (1972).

Defendant finally objects to the remark by the prosecutor in his opening statement that the prosecution would show that prior to the date of the killing the defendant was seen to have in his possession a pistol. At the time the remark was made defense counsel moved for a mistrial. In denying the motion the trial court noted: 'At this point, the mere statement that he had a gun does not impute any prior crime to him, and I don't think there is'. During trial defendant admitted the prior ownership and possession of a gun, although not the one that killed Leroy Adams. In light of the judge's comment and the defendant's admission of prior gun ownership, we cannot say that the error, if any, in the prosecutor's remark was prejudicial.

Reversed and remanded for a new trial.

J. H. GILLIS, Presiding Judge (concurring).

I write separately in an attempt to clarify what is apparently a frequently misunderstood rule regarding the prohibition of hearsay evidence.

Hearsay is that evidence offered in court of a statement made out of court to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court declarant. McCormick, Evidence (2d ed), § 246, p. 584; People v. Solomon, 47 Mich.App. 208, 209 N.W.2d 257 (1973).

The testimony which the majority places within that definition offered by the rebuttal witness is as follows:

'Q. Now, Mr. Adams, you say that somebody approached you out in the hall?

'A. Yes.

'Q. Did Nate (the previous defense witness) say anything to you in regard to testifying in this case?

'A. Yes.

'Q. What did Nate tell you?

'A. He told me that Mr. Jones (defendant) paid him--or would pay him $20 to come down here and testify; and if I gave him $20, he would go back and he wouldn't come on the stand--he would go back home and get high because they didn't really care what happened.' (Emphasis supplied.)

Certainly, this evidence is of a statement made out of court by a presently nontestifying declarant. The emphasized portion of the witness's statement referring to what defendant had told the declarant, if offered for the truth of the matter asserted therein, (I.e., whether, in fact, defendant paid the declarant to testify) would be hearsay. Even if offered in court by the Declarant for that...