People v. Malone
| Decision Date | 14 June 1994 |
| Docket Number | No. 1,Nos. 94390,94391,s. 94390,1 |
| Citation | 518 N.W.2d 418,445 Mich. 369 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald MALONE, Defendant-Appellant. Calendar |
| Court | Michigan Supreme Court |
John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training and Appeals, Janice M. Joyce Bartee, Asst. Pros. Atty., Detroit, for plaintiff-appellee.
State Appellate Defender Office by David A. Moran, Asst. Defender, Detroit, for defendant-appellant.
The question presented in this case is whether the Michigan Rules of Evidence modify the definition of hearsay to define a prior statement of identification as nonhearsay. Specifically, we must decide whether the trial court acted properly in admitting as substantive evidence the testimony of two witnesses that a witness who denied having identified the defendant at trial had previously identified him at a photographic showup.
We hold that, under MRE 801(d)(1)(C), statements of identification are not hearsay when the identifier is subject to cross-examination. 1 The history of the rule and the goal of promoting reliable fact finding support this conclusion. The decision of the Court of Appeals is affirmed.
This case arose from the July 26, 1988, shooting death of Orlando Nance that occurred in an alley outside a market in Detroit. The defendant, Donald Malone, was charged with first-degree murder and possession of a firearm during the commission of a felony. Witnesses Robin Lasenby, Carey Jackson, and Melvin Mann each observed individuals running to, or from, the scene of the shooting.
Carey Jackson later identified the defendant at a photographic showup. At trial, however, Carey Jackson denied having identified the defendant. Other eyewitnesses were also reluctant to testify. Robin Lasenby testified that, although he was not afraid for himself, his mother "[g]ot [him] to make a statement because she felt frightened for her safety or whatever." Defendant Malone "told [Lasenby] that the affair was none of Lasenby's business." Lasenby, who had previously given a statement that unequivocally identified the defendant as the person who got out of the black Omni with a dark object 2 in his hand, testified that the defendant later told him that the incident was "none of [his] business," and that, at that time as well, the defendant had in his possession a dark object. 3 It was only after that conversation that Lasenby "didn't want to come" to court.
Over the defendant's objections, attorney James Hall, the attorney appointed to protect the defendant's right to a fair showup, testified that Carey Jackson identified defendant Malone as "the guy who had the gun," and signed a statement recording this identification. Attorney Hall also testified that the photographic showup was fair. Officer James Bivens of the Detroit Police Department also testified and confirmed Jackson's identification and signed statement. The trial court held that the testimony of both Officer Bivens and Attorney Hall was not limited to impeachment of Jackson's trial testimony and was admissible as substantive evidence under MRE 801(d)(1)(C). 4 The jury convicted the defendant of first-degree murder and possession of a firearm during the commission of a felony.
The Court of Appeals affirmed the defendant's convictions. 193 Mich.App. 366, 483 N.W.2d 470 (1992). The Court rejected the defendant's argument that the identification testimony was inadmissible hearsay. Judge Connor concurred only because he felt compelled to apply the rule announced in People v. Newcomb, 190 Mich.App. 424, 429-430, 476 N.W.2d 749 (1991), as required by Administrative Order No. 1990-6, 436 Mich. lxxxiv. See 193 Mich.App. at 372, 483 N.W.2d 470 (Connor, J., concurring). This Court granted the defendant's application for leave to appeal on March 16, 1993. 442 Mich. 867, 500 N.W.2d 470.
The testimony is not hearsay under MRE 801(d)(1)(C)
The testimony of Attorney Hall and Officer Bivens about the prior statement of witness Carey Jackson is not hearsay. On this point, the Rules of Evidence could not be more clear:
A statement is not hearsay if ... [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... one of identification of a person made after perceiving him.... [MRE 801(d)(1)(C).]
MRE 801(d) is an outgrowth of attempts to abandon the orthodox rule that prior statements of a witness were admissible only for impeachment or under a recognized exception to the hearsay rule. The proponents of change, among them Wigmore and Learned Hand, countered the orthodox view that substantive use was objectionable because the prior statement when made was not under oath, subject to cross-examination, or in the presence of the trier of fact. They observed that the oath was no longer the principal safeguard of trustworthiness, that the interests of cross-examination were met by the declarant's presence at trial, and that the trier's advantage of observing the demeanor of the witness was also satisfied. In Hand's classic statement:
If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court. [Di Carlo v. United States, 6 F.2d 364, 368 (CA 2, 1925).]
The reformers' views are represented in the Model Code of Evidence Rule 503, which abolishes the orthodox rule and provides that all prior statements are admissible if the declarant is found to be "present and subject to cross-examination." 2 McCormick, Evidence (4th ed.), § 251, p. 118. However, concern that the Model Code approach would produce the manufacture of prior statements led to an intermediate position taken by the advisory committee on the Federal Rules of Evidence, 5
exempting from classification as hearsay certain prior statements thought by circumstances to be free of the danger of abuse. The exempt statements are (A) inconsistent statements, (B) consistent statements when admissible to rebut certain attacks upon the credibility of the witness, and (C) statements of identification. [2 McCormick, Evidence (4th ed.), § 251, p. 120.]
The Congress modified the original proposal, and the structure of MRE 801(d), as ultimately adopted by this Court, parallels FRE 801(d), as modified. The rule clearly indicates the circumstances in which prior statements are defined as not hearsay: where the prior statement was made under oath and is inconsistent with the witness' testimony, 6 MRE 801(d)(1)(A); where the prior statement is consistent and offered to rebut, MRE 801(d)(1)(B); and where the prior statement is one of identification, MRE 801(d)(1)(C). Unlike subrules (A) and (B) of Rule 801(d)(1), subparagraph (C) does not require laying a foundation other than that the witness is present and found to be available for cross-examination.
Thus, statements of identification are not limited by whether the out-of-court declaration is denied or affirmed at trial. There is no requirement "of inconsistency" as in subparagraph (A), nor is there a condition of previous impeachment as in subparagraph (B). As long as the statement is one of identification, Rule 801(d)(1)(C) permits the substantive use of any prior statement of identification by a witness as nonhearsay, provided the witness is available for cross-examination. 4 Weinstein & Berger, Evidence, p 801(d)(1)(C), pp. 801-214 to 801-215.
All that is contemplated is an out-of-court statement of identification (which is simply a particular type of prior statement) and that the out-of-court declarant be subject to cross-examination "concerning" the statement. Thus, it is clear that the effect of both MRE 801(d)(1)(A) and MRE 801(d)(1)(B) is to change Michigan law, and the committee notes confirm this. 399 Mich. 1003. Further, there is no distinction regarding whether the out-of-court statement is offered by a third party or is the statement of identification of a witness on the stand regarding something the witness previously said. Under the orthodox definition of hearsay, an out-of-court statement offered for the truth is inadmissible, whether offered through its maker or a third party. A statement of identification defined as nonhearsay is substantively admissible under Rule 801, without regard to its proponent. 7
Because Mr. Jackson testified regarding the subject of identity at trial, and was subject to cross-examination regarding his identification, the testimony was properly admitted.
The Drafting History of MRE 801(d)(1)(C)
A full review of the committee commentary on the Michigan Rules of Evidence confirms that the testimony in question is not hearsay. After first stating that MRE 801(d)(1)(A) and (B) were "inconsistent with prior Michigan law" that defined prior inconsistent statements and consistent statements as hearsay, see, e.g., People v. Hallaway, 389 Mich. 265, 271-279, 205 N.W.2d 451 (1973) (opinion of Brennan, J.), the committee summarized the effect of Rule 801(d)(1)(C):
MRE 801(d)(1)(C) is consistent with prior Michigan law in admitting testimony by a witness as to his own prior statement of identification of a person made after perceiving him. People v. Poe, 388 Mich. 611; 202 NW2d 320 (1972); People v. Londe, 230 Mich. 484; 203 NW 93 (1925).
The committee's statement that MRE 801(d)(1)(C) was consistent with prior law "admitting testimony by a witness as to his own prior statement ...," id. (emphasis added), does not mention previous Michigan law excluding a witness ' prior inconsistent statements as hearsay. 8 That line of authority was overruled in the committee's version of MRE 801(d)(1)(A). 9 Since the committee's proposals would have made all prior inconsistent statements admissible as substantive evidence without limitation, the only category of...
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