People v. Losey, Docket No. 65733
Decision Date | 17 May 1982 |
Docket Number | Docket No. 65733 |
Citation | 413 Mich. 346,320 N.W.2d 49 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Orville LOSEY, Jr., Defendant-Appellant. 413 Mich. 346, 320 N.W.2d 49 |
Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Paul F. Berger, Pros. Atty., and C. Sherman Mowbray, Asst. Pros. Atty., Charlotte, for the People.
State Appellate Defender Office by Terence R. Flanagan, Asst. Defender, Lansing, for defendant-appellant.
Improper rebuttal testimony is again the focus of our inquiry. Despite our admonitions in People v. McGillen # 1, 392 Mich. 251, 220 N.W.2d 677 (1974); and People v. Bennett, 393 Mich. 445, 224 N.W.2d 840 (1975), we find we must again reverse a conviction on this basis.
Maria Losey (also known as Helen Losey) was found dead in her home on February 11, 1977. She had suffered two .22 caliber bullet wounds. The defendant, her ex-husband, was charged with murder as an aider and abettor 1 and with conspiracy to commit murder. 2
At the subsequent jury trial, Ronald Heath testified that the defendant had asked him whether James Lafler could get rid of his wife. He brought Lafler to the defendant's house for a meeting. Money was eventually transferred by the defendant to Lafler. Lafler discussed killing Mrs. Losey with Heath. Later, Lafler was seen with a .22 caliber rifle which he threw into the Kalamazoo River, and he told William Snyder he had killed a Lansing woman. Snyder saw Lafler in possession of a check from the defendant.
The jury convicted the defendant of the conspiracy charge, but acquitted him of murder. On June 27, 1978, he was sentenced to imprisonment for a period of from 40 to 60 years. The Court of Appeals affirmed the conviction. People v. Losey, 98 Mich.App. 189, 296 N.W.2d 601 (1980).
On cross-examination of the defendant, the prosecutor inquired as follows:
The prosecutor then proposed Mrs. Seeley as a rebuttal witness for "the impeachment of the defendant". Defense counsel objected that Mrs. Seeley's testimony would not be within the "stringently limited" nature of rebuttal. Mrs. Seeley was permitted to testify.
The Court of Appeals said:
98 Mich.App. 201-202, 296 N.W.2d 601.
We entered an order directing the prosecutor to show cause why the defendant's conviction should not be reversed on the basis that the introduction of improper rebuttal testimony prejudiced the defendant so as to deny him a fair trial. 411 Mich. 864 (1981).
Witness Seeley's testimony, whether considered relevant to an issue in the case or not, was inadmissible under at least one of the related rules governing rebuttal testimony. As this Court made clear in People v. Quick, 58 Mich. 321, 322-323, 25 N.W. 302 (1885), the prosecutor may not divide the evidence on which the people propose to rest their case, saving some for rebuttal. Insofar as the Court of Appeals is correct in holding that Ms. Seeley's testimony was relevant to the question of motive the rule of Quick was violated. 3 The issue of motive had been introduced in the prosecutor's case in chief, and nothing in the defendant's case made Ms. Seeley's testimony any more relevant to that issue.
Of course, the rebuttal evidence also contradicts the defendant's testimony on cross-examination, and its admission is defended on that ground. 4 However, as we said in People v. Bennett, 393 Mich. 445, 449, 224 N.W.2d 840 (1975), the device of eliciting a denial on cross-examination may not be used to inject a new issue into the case. Similarly, cross-examination cannot be used to revive the right to introduce evidence that could have been, but was not, introduced in the prosecutor's case in chief. 5
If, on the other hand, the rebuttal testimony was not admissible in the prosecutor's case in chief because it was not relevant to motive, then its admission in rebuttal to contradict the defendant's denials on cross-examination violated the firmly established rule that extrinsic evidence may not be used to impeach a witness on a collateral matter. People v. Teague, 411 Mich. 562, 566, 309 N.W.2d 530 (1981).
In his response to our order, the prosecutor concedes that the rebuttal was error, but asks that we nevertheless affirm because the evidence against the defendant was "overwhelming". We cannot accept the prosecutor's characterization of the evidence as overwhelming. The evidence as to conspiracy relied largely on the testimony of the uncharged and immunized co-conspirator Heath. The other co-conspirator, Lafler, was acquitted of conspiracy by a different jury. We will therefore not speculate as to what effect this improper rebuttal might have had on the jury in this case.
In lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the defendant's conviction and remand this case to the Eaton Circuit Court for a new trial.
3 We recognize that there may be occasional cases in which evidence that might have been admissible in the prosecutor's case in chief could be admitted in rebuttal. The prosecutor may not become aware of the evidence until after having rested. Or evidence that would have been repetitive on a point thought not to be seriously contested might be allowed in rebuttal if the prosecutor is genuinely surprised by the defendant's focusing on the point in defense.
To continue reading
Request your trial-
People v. Kelly
...393 Mich. 445, 449, 224 N.W.2d 840 (1975) (rebuttal evidence did not bear on an issue raised by the defense); People v. Losey, 413 Mich. 346, 351-353, 320 N.W.2d 49 (1982) (evidence involved either a collateral matter of material which should have been in the prosecution's case in chief); P......
-
Wright v. State
...and proper exploration regarding the veracity of defendant's prior testimony. As a result, the dissent's citation of [People v.] Losey [413 Mich. 346, 320 N.W.2d 49 (1982)] and Bennett is inapposite." (Emphasis in Figgures, 547 N.W.2d at 678. The court also indicated that even if the eviden......
-
People v. Mateo
...limitations. First, if the evidence should have been introduced in the case in chief, rebuttal is improper. People v. Losey, 413 Mich. 346, 351, 320 N.W.2d 49 (1982). Second, rebuttal evidence must be on a material matter, not a collateral issue. People v. Teague, 411 Mich. 562, 566, 309 N.......
-
People v. McIntire
...argues, as he did below, that McIntire's testimony concerning defendant's statement violates the rules stated in People v. Losey, 413 Mich. 346, 351-352, 320 N.W.2d 49 (1982), and People v. Bennett, 393 Mich. 445, 449, 224 N.W.2d 840 (1975), that the prosecutor may not use rebuttal testimon......