People v. Lyles
| Citation | 385 N.W.2d 676,148 Mich.App. 583 |
| Decision Date | 22 April 1986 |
| Docket Number | Docket No. 78471 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roger L. LYLES, Defendant-Appellant. 148 Mich.App. 583, 385 N.W.2d 676 |
| Court | Court of Appeal of Michigan (US) |
[148 MICHAPP 587] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Christopher S. Boyd, Pros. Atty., and Annette M. Gray, Asst. Pros. Atty., for people.
Kevin J. Henze, Saginaw for defendant-appellant on appeal.
Before V.J. BRENNAN, P.J., and BEASLEY and NOECKER, * JJ.
Defendant, Roger L. Lyles, was convicted by a jury of two counts of first-degree (felony) murder, contrary to M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and one count of assault with intent to commit murder, contrary to M.C.L. Sec. 750.83; M.S.A. Sec. 28.278. Defendant was sentenced to three concurrent life terms, after which he appeals as of right.
These convictions and sentences arose from a second trial. Earlier, defendant's convictions for murder and assault with intent to murder were reversed in Lyle v. Koehler, 720 F.2d 426 (CA 6, 1983). The reversal of defendant's first conviction [148 MICHAPP 588] related to the denial of defendant's right to confrontation arising out of a letter introduced against his codefendant in the first trial. Since defendant was tried separately in the trial involved in this appeal and the letter causing the reversal of the first trial was not introduced against defendant, the issues in Lyle v. Koehler, supra, are not relevant to our decision in this matter.
The charges against defendant arose out of the April 14, 1976, shootings of Feadow and Deborah Jones and Algenia Price. Feadow and Deborah Jones died from the gunshot wounds they received, while Algenia Price, although shot in the head twice, survived the attack and later testified at defendant's trial. Price testified that four men forced their way into the Jones's house and took various pieces of jewelry before shooting the victims.
Pursuant to Price's description of the four men and a neighbor's description of a car seen speeding away from the Jones's home, police apprehended two of the four men within an hour of the shooting. Defendant was one of those two men. At a subsequent line-up, Price identified defendant as one of the attackers. A third man was apprehended approximately one month later.
Defendant raises numerous issues on appeal. First, he argues that the trial judge improperly allowed the prosecutor to introduce prior inconsistent statements of an alibi witness for the purpose of impeaching the witness's credibility. The alibi witness in this case testified at defendant's first trial that defendant was at his home when the shootings occurred. Before defendant's second trial, the witness ingested PCP, which affected his memory. He could only remember some parts of his testimony from the first trial. Since the witness's[148 MICHAPP 589] memory could not be refreshed, the trial judge allowed his testimony at the first trial to be read into evidence.
Upon cross-examination at the second trial, the prosecutor asked the alibi witness if he remembered giving a statement to two police officers on May 27, 1976, at the Saginaw County jail that defendant had not been with him at the time of the shooting. The witness remembered talking to the two officers, but could not remember his statement. The prosecutor then read the prior inconsistent statements of the witness into evidence from a transcript which had been prepared from a tape recording of the statements. The trial judge admitted this evidence for the limited purpose of impeaching the credibility of the alibi witness and instructed the jury accordingly.
Initially, we note that defendant did not object to the prosecutor's use of the prior inconsistent statements of the witness. Under such circumstances, we will not reverse absent manifest injustice. 1 Manifest injustice will not result from this court's refusing to reverse on this issue.
The prosecutor complied with MRE 613(a) by disclosing to the witness the time, place and person to whom the prior oral statements were made. One of the purposes of the rule requiring foundational questions is to avoid surprise of the witness. This purpose was accomplished once the questions were posed. 2
The prosecutor also complied with MRE 613(b) in introducing the extrinsic evidence of the witness's statements. On cross-examination, the prosecutor afforded the witness an opportunity to explain[148 MICHAPP 590] or deny the statements. The witness could not recollect his specific statements, but it is clear that this will not bar admission of otherwise competent, relevant and material impeaching evidence. 3 The prosecutor's questions alone provided a sufficient foundation for the admission of extrinsic evidence of the prior statements. 4
The prosecutor, and also the trial court, afforded defendant an opportunity to interrogate the witness on those prior statements during trial. In addition, although the witness experienced a lack of memory concerning his prior statements, he had provided an explanation for his prior statements during testimony at defendant's first trial. Defendant could have read this prior testimony at his second trial, as he had done for the alibi testimony itself. Thus, defendant was afforded an opportunity to interrogate the witness for purposes of MRE 613(b).
Defendant's argument that the decision in People v. Durkee 5 applies to this situation is without merit. In Durkee, the witness being impeached had offered no evidence against the prosecution's case and could not even remember being questioned by police. In the within case, the prior alibi testimony of the witness was adverse to the prosecutor. In addition, the witness did remember being questioned by the police. Under such circumstances, the admission of prior statements for impeachment purposes is proper. 6
Defendant's argument that his constitutional right to confrontation was abridged by the admission of the prior inconsistent statements is also [148 MICHAPP 591] without merit. The statements were not used as substantive proof, but only for impeachment purposes. Such impeachment use is entirely proper and does not abridge defendant's constitutional right to confrontation. 7
Defendant next argues that the in-court identification of him by victim Price lacked a sufficient independent basis. Defendant bases this claim on his assertion that police officers improperly suggested to Price that defendant's hair was in curlers, not braided as Price had originally stated. First, we must again note that defendant failed to move for suppression of or object to Price's in-court identification testimony. Thus, the question of suggestiveness is not preserved for review by this Court. 8 But, even if we were to review defendant's claim, we would find that an independent basis existed for Price's in-court identification of defendant under the factors listed in People v. Kachar. 9 The record establishes that Price drew on her memory of the crime and her observations of defendant in making the in-court identification. Defendant was not wearing hair curlers at the trial.
The additional claims of defendant that Price's in-court identification was tainted due to a previous photographic line-up which included defendant's photo and the fact that Price was interviewed by the police at the hospital without the presence of defendant's counsel are without factual basis or legal merit.
Defendant next contends that error occurred when the trial judge questioned one of the 14 jurors in chambers with both counsel present but without defendant present. During the in-chambers[148 MICHAPP 592] questioning, the juror indicated that she could not render a fair verdict, since she lived in the same neighborhood as the defendant. The trial judge excused the juror under the authority of M.C.L. Sec. 768.18; M.S.A. Sec. 28.1041.
Defendant had previously moved for the dismissal of the juror in question, but, on appeal, contends that his absence from the in-chambers questioning denied him his right of trial by jury. Our examination of the record convinces us that defendant's absence from the in-chambers questioning of the juror did not present any reasonable possibility of prejudice to defendant. It is very unlikely that if defendant had been present he would have argued against excusing this juror and, thus, defendant's absence does not require reversal. 10
Defendant also argues that the prosecutor improperly shifted the burden of proof on the issue of an alibi defense. During cross-examination, the prosecutor asked defendant if he had ascertained the house number and owner of a house where he had been just prior to his arrest. Defendant initially indicated that, despite opportunities to make inquiries, he had not pursued these matters. On appeal, defendant argues, for the first time, that the prosecutor's questions allowed the jury to infer that he had an obligation to investigate and produce witnesses from the house. Again, defendant did not object to the prosecutor's questions at trial. Having failed to present the trial court with an opportunity to correct any harm attributable to the prosecutor's inquiries, defendant may not now raise this objection for the first time on appeal. 11
[148 MICHAPP 593] However, even if we reach the merits of defendant's argument, the prosecutor's questions do not require reversal. The prosecutor did not call on defendant to produce unavailable witnesses, he merely inquired into defendant's failure to take advantage of available opportunities to pursue matters relevant to his alibi defense. This situation is analogous to a line of cases in this court which have held that a prosecutor may inquire into a defendant's failure to produce available witnesses or other evidence when defendant has presented an alibi defense. This is a proper way to attack the strength of...
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People v. Ramsdell
...intent crime, the instruction was unnecessary and would not have affected defendant's chances for acquittal. People v. Lyles, 148 Mich.App. 583, 596, 385 N.W.2d 676 (1986). Similarly, because the defense of intoxication would not have negated a showing of general intent, the trial court's o......
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