People v. Kent

• Decision Date: 06 May 1987
• Docket Number: Docket No. 81371
• Citation: People v. Kent, 404 N.W.2d 668, 157 Mich.App. 780 (Mich. App. 1987)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald Wayne KENT, Defendant-Appellant. 157 Mich.App. 780, 404 N.W.2d 668
• Court: Court of Appeal of Michigan

Page 668

404 N.W.2d 668

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald Wayne KENT, Defendant-Appellant.

Docket No. 81371.

157 Mich.App. 780, 404 N.W.2d 668

Court of Appeals of Michigan.

Submitted June 4, 1986.

Decided Feb. 18, 1987.

Released for Publication May 6, 1987.

[157 MICHAPP 783] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Joseph T. Barberi, Pros. Atty., and J. Ronald Kaplansky, Asst. Atty. Gen., for the People.

State Appellate Defender Office by Susan J. Smith, for defendant-appellant on appeal.

Before SULLIVAN, P.J., and MAHER and HARRISON, ^* JJ.

HARRISON, Judge.

On the night of October 17, 1983, Larry Harvey died as a result of a fire at his trailer. Defendant, whose wife Terri Sue was reportedly having an affair with Harvey, was charged with arson and felony murder. After a jury trial, which spanned almost three weeks and included testimony from thirty-nine prosecution witnesses, defendant was convicted of arson of a dwelling house, M.C.L. Sec. 750.72; M.S.A. Sec. 28.267, and involuntary manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553. Defendant was subsequently convicted of being an habitual offender, third offense, and was [157 MICHAPP 784] sentenced to from twenty to thirty years in prison. Defendant appealed and we reverse.

The prosecution's case was based on circumstantial evidence, including evidence that the fire was not an accident and must have been set; testimony of defendant's prior threats of physical violence against decedent Harvey; evidence of defendant's whereabouts on the evening of October 27, which suggested that defendant would have had time to set the fire before he appeared at his mother's house, spotted the fire, and reported it; and evidence of his conflicting statements to the police concerning his whereabouts that evening. Defendant was represented by two attorneys who called no witnesses. The defense theory was that the prosecution had not sustained its burden of proving that the fire was arson or that defendant had set it.

Defendant first asserts that the trial court erred in refusing to permit defense counsel to impeach three prosecution witnesses with evidence of their prior convictions. Defense counsel filed a timely motion, in accordance with the trial judge's cut-off date for motions, for the prosecutor to provide him with the criminal records of res gestae witnesses. One week before trial, at the hearing on the motion, the prosecutor stated that he did not have the information and had no intention of obtaining it. The court ruled that it would not order the prosecutor to obtain the information and that it would determine the admissibility of evidence of any convictions at trial. Defense counsel responded, "We have no objection to it being conducted at the time that the witness is called." The issue was next addressed two days into the trial when defense counsel requested a hearing to determine the admissibility of evidence of the witnesses' criminal convictions. The court decided to hear the [157 MICHAPP 785] motion immediately. Defense counsel named three witnesses and related their alleged convictions. The prosecutor disputed the accuracy of the convictions as stated by the defense. The court took the matter under advisement with the direction that defense counsel was to obtain certified records of the witnesses' convictions and that the court would decide the admissibility issue before the witnesses were to testify.

When defense counsel, on cross-examination, attempted to impeach the first of the three witnesses with evidence of his prior convictions, the prosecution objected that the court had never ruled that this would be permissible. Defense counsel responded that he understood that if he obtained the certified copies, he could impeach the three witnesses. The trial judge admonished defense counsel for attempting to impeach without first obtaining a favorable ruling. The court declared that it was "far too late" to rule on the admissibility of the impeachment evidence when the witness was already on the stand. The court then stated that it was exercising its discretion in not allowing impeachment of any of the witnesses with evidence of their prior convictions. The court later permitted defense counsel to make an offer of proof of the witnesses' prior convictions, all of which included felonies or theft offenses.

Defendant contends that the court's ruling was an abuse of discretion which denied him his right to confront and cross-examine his accusers. The credibility of a witness may be attacked by using evidence of conviction of a felony or of a crime involving theft or dishonesty, if the court determines that the probative value of this evidence outweighs its prejudicial effect and articulates on the record the factors considered in making the determination. MRE 609(a). In this case, the judge [157 MICHAPP 786] did not weigh the probative value against the prejudicial effect, but excluded the evidence because, in his opinion, it was too late to consider the issue when the witness was already on the stand.

A defendant's right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973). However, its denial or significant diminution calls into question the ultimate integrity of the fact-finding process and requires that the competing interests be closely examined. Id. In this case, it appears that the competing interest was the trial court's desire to adhere to a schedule to manage this lengthy trial. A trial judge does have a certain latitude in controlling the trial proceedings. M.C.L. Sec. 768.29; M.S.A. Sec. 28.1052; People v. Rogers, 60 Mich.App. 652, 657, 233 N.W.2d 8 (1975).

Nevertheless, we do not think defendant's interest in impeaching the credibility of three key prosecution witnesses with evidence of their prior convictions should yield to a schedule so strict that a brief hearing on this issue could not be afforded. Defendant first raised the impeachment issue prior to trial. It was the judge who postponed the decision. Apparently there was a misunderstanding as to whether another hearing and ruling was required. It appears, however, that, first, what occurred was hardly a substantial departure from what the trial court must have expected in postponing the decision yet wanting to rule in advance of the witnesses' testifying; and, second, that the prosecutor was less than helpful in resolving the issue in a timely fashion by his refusal from the outset to obtain a copy of what was more readily accessible to him.

[157 MICHAPP 787] The prosecution maintains that the testimony of the three unimpeached witnesses, while damaging, was essentially cumulative. We disagree. While several witnesses testified that defendant's wife and the decedent were having an affair, Timothy Johnson was the only witness who testified that defendant had offered to pay Johnson, on the night before the fire, to "take care of Larry Harvey." William Phelps was the only witness who testified to having heard defendant, on the night of the fire, saying, "Goddamit, I didn't mean it to happen this way." Cecil Langlois was the only witness who testified that defendant had been hitchhiking back to a bar when he discovered that the trailer was on fire.

The prosecution used this testimony to show that defendant had given conflicting versions of his actions that night. The prosecution's case was based solely on the circumstantial evidence offered by these and other witnesses. Credibility was an important factor in this case. Admission of evidence of the prior convictions of Johnson, Phelps, and Langlois could have caused the jury to disbelieve their very damaging testimony. People v. Nickson, 120 Mich.App. 681, 687, 327 N.W.2d 333 (1982). We conclude that defendant's right to effective cross-examination was abridged by the court's refusal to permit counsel to impeach these key witnesses with evidence of their prior convictions.

Although this issue is of sufficient magnitude to require reversal, we will address certain other allegations of error to assist the trial court in the event of retrial.

Defendant maintains that crucial hearsay was admitted. Defendant's father-in-law testified that, when he arrived at the scene of the fire, he saw defendant and his wife hollering at each other and visibly upset. Over objection, he testified that, [157 MICHAPP 788] "Terri Sue was saying you burnt the trailer; and Donny was saying I swear to God, I did not burn the trailer." The court permitted evidence of Terri Sue's statement as an excited utterance exception to the rule against hearsay. MRE 803(2). Terri Sue did not testify because defendant claimed his spousal privilege. M.C.L. Sec. 600.2162; M.S.A. Sec. 27A.2162.

There was no evidence that Terri Sue had personal knowledge that defendant set the fire. Witnesses testified she did not arrive until the fire was well under way. One of the requirements for the admission of an excited utterance is that the declarant appear to have had an opportunity to personally observe the matter of which he or she speaks. 6 Wigmore, Evidence (Chadbourn rev), Sec. 1751, p 222; McCormick, Evidence (3d ed), Sec. 297, p 858; Miller v. Keating, 754 F.2d 507, 511 (CA 3, 1985). Michigan authority on this issue is sparse. Cf. People v. Oliver, 111 Mich.App. 734, 314 N.W.2d 740 (1981). However, case authority from jurisdictions having addressed this issue supports this approach. See Ungefug v. D'Ambrosia, 250 Cal.App.2d 61, 58 Cal.Rptr. 223 (1967); Spears v. State, 272 Ind. 634, 401 N.E.2d 331 (1980); Commonwealth v. Stetler, 494 Pa. 551, 431 A.2d 992 (1981); Watson v. State, 387 P.2d 289, 291 (Alaska, 1963). The burden of establishing perception rests with the proponent of the evidence. Miller, supra. It was thus error to admit...