People v. Meadows

• Decision Date: 30 November 1977
• Docket Number: Docket No. 28526
• Citation: People v. Meadows, 263 N.W.2d 903, 80 Mich.App. 680 (Mich. App. 1977)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles W. MEADOWS, Defendant-Appellant. 80 Mich.App. 680, 263 N.W.2d 903
• Court: Court of Appeal of Michigan

Page 903

263 N.W.2d 903

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles W. MEADOWS, Defendant-Appellant.

Docket No. 28526.

80 Mich.App. 680, 263 N.W.2d 903

Court of Appeals of Michigan.

Nov. 30, 1977.

Released for Publication April 6, 1978.

[80 MICHAPP 683] Smith, Mitoff & Williams by Nicholas Smith, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, App. Chief, Asst. Pros. Atty., Thomas S. Richards, Asst. Pros. Atty., for plaintiff-appellee.

Before WALSH, P. J., and QUINN and STAIR, ^* JJ.

PER CURIAM.

Defendant was tried by jury and found guilty of first-degree murder ¹ and assault with intent to commit murder. ² He received concurrent life sentences for each offense and now appeals.

The instant prosecution arose out of events occurring on the morning of May 21, 1972. On that date defendant, Rueben Herrerra and Michael Colleran were riding in a rented 1973 Gremlin automobile in Oak Park, Michigan. Defendant was driving. All three men were on parole. Michael Colleran had a .38-caliber revolver on his person. There was also a sawed-off shotgun in the car. The shotgun was owned by defendant.

Oak Park Police Officer Henry Wolf began following defendant's automobile which was exceeding[80 MICHAPP 684] the speed limit. He reported the pursuit by radio. Defendant realized that he was being followed and became concerned over the fact that Colleran had a revolver on his person. ³ Defendant slowed down and Colleran jumped out but he threw the revolver on the front passenger seat. Officer Wolf pulled behind the defendant and directed him to stop. Defendant left the car, met the officer midway between the two vehicles and produced his driver's license. Wolf then accompanied the defendant to defendant's automobile where he asked Rueben Herrerra for identification. A struggle between the three men ensued and Officer Wolf was shot in the back.

Defendant removed the officer's body from the side of the automobile and drove off. As he did so, Officer Nimmor, responding to Officer Wolf's radio report, turned onto the street on which the shooting had occurred. According to Officer Nimmor, as the two cars approached one another, defendant rested a revolver on the steering wheel of his vehicle and shot at the officer. Ultimately, the two cars collided and defendant was taken into custody.

On appeal defendant argues, in part, that the trial court erred in permitting a prosecution witness to be called in rebuttal and in denying his motion for a directed verdict as to the charge of first-degree murder.

During cross-examination the prosecutor questioned the defendant as to his conversations with Frank Parker in the Oakland County jail following defendant's arrest on the present charges. Defendant denied that he had admitted the shootings to [80 MICHAPP 685] Parker and that he had asked Parker to be a witness in his behalf. Parker was called as a rebuttal witness. Defense counsel objected on the grounds that Parker had not been indorsed on the information and that his testimony should have been introduced in the prosecutor's case in chief. The trial court permitted Parker to testify.

Parker took the stand and testified that defendant had asked him to be a witness. He produced instructions, handwritten by the defendant, concerning the testimony which he was to give, and also a letter, written by the defendant to Parker's wife, directing her to examine the scene of the shooting in order to determine the plausibility of the testimony. Parker also testified that defendant told him that he held Officer Wolf expecting Herrerra to shoot, and that when Herrerra failed to do so, defendant seized the officer's own revolver and shot him. According to Parker, defendant also admitted shooting at Officer Nimmor during the attempted escape.

After cross-examining the witness briefly, defense counsel moved that Parker's testimony be stricken and a mistrial declared on the same grounds earlier argued. Relying on its former ruling, the trial court denied the motion. The court granted defense counsel's request, however, that his cross-examination of the witness be continued to the following day in order to permit further preparation.

The next day, after defense counsel's cross-examination of Parker, defendant was called in surrebuttal. Defendant testified that it was Parker who suggested that he be a witness in defendant's favor. Defendant further testified that he had maintained his innocence to Parker. He admitted writing the instructions and letter to Parker's wife [80 MICHAPP 686] but stated that the exhibits were prepared at Parker's direction. Except for Parker's presence at the scene, defendant stated that the facts recited in the handwritten instructions were true. He further testified that he changed his mind about permitting Parker to testify after discussing the matter with defense counsel.

Defendant's objections to the admission of the testimony were renewed in a motion for a new trial. The motion was denied.

The Michigan Supreme Court long ago ruled that the prosecution should not be permitted to divide the testimony upon which it proposes to prove its case. The defendant is entitled to have the testimony introduced in its proper order. People v. Quick, 58 Mich. 321, 25 N.W. 302 (1885); People v. Wright, 74 Mich.App. 297, 253 N.W.2d 739 (1977); People v. Parker, 65 Mich.App. 592, 237 N.W.2d 572 (1975). Evidence which tends to prove the commission of the crime itself or the immediate circumstances surrounding the offense cannot ordinarily be classified as rebuttal. People v. Quick,supra. "Legitimate rebuttal testimony is limited to the refutation or impeachment of relevant and material evidence properly raised by the opposing party". People v. Ebejer, 66 Mich.App. 333, 340, 239 N.W.2d 604, 609 (1976). Also, People v. Bennett, 393 Mich. 445, 224 N.W.2d 840 (1975). An admission can only be presented during the prosecutor's case in chief. People v. Bennett, supra; People v. Lowe, 71 Mich.App. 340, 248 N.W.2d 263 (1976). See, People v. Parker, supra. The trial court erred in the instant case, therefore, by permitting Parker to testify in rebuttal. We do not, however, find the error reversible.

This Court will not reverse a conviction because of a trial error unless the error results in a miscarriage[80 MICHAPP 687] of justice. M.C.L.A. § 769.26; M.S.A. § 28.1096. Two separate inquiries are involved in determining whether the error complained of substantially prejudiced the rights of an accused. First, whether the error is so offensive to the maintenance of a sound judicial process that it can never be regarded as harmless. Second, whether it is reasonably possible that in a trial free of the error one juror may have voted to acquit. People v. Robinson, 386 Mich. 551, 194 N.W.2d 709 (1972); People v. Swan, 56 Mich.App. 22, 223 N.W.2d 346 (1974); People v. Christensen, 64 Mich.App. 23, 235 N.W.2d 50 (1975).

The introduction of evidence in rebuttal, which properly belongs in the prosecution's case in chief, is not an error which is always regarded as prejudicial. People v. Rose, 268 Mich. 529, 256 N.W. 536 (1934); People v. Atcher, 65 Mich.App. 734, 238 N.W.2d 389 (1975). See, People v. Ebejer, supra. In the present case, this Court is convinced that the exclusion of Parker's testimony from rebuttal would not have altered the verdict as to either charge. Not only was the evidence of defendant's guilt overwhelming, but Parker's testimony in large measure merely duplicated testimony earlier given by other witnesses and by defendant himself. ⁴

[80 MICHAPP 688] Lawrence Connolly, who resided near the scene of the shooting, saw Officer Wolf standing next to the Gremlin leaning inside. Connolly witnessed the defendant struggle with the officer, grab Wolf's revolver, step back and shoot him. Another witness, Hoy Smith, who was driving near the scene, saw the defendant standing outside the Gremlin holding a gun behind his back and also saw the feet and legs of someone bending over the front seat of the vehicle. Smith testified: "(T)he accused either spun or pushed the officer and the gun came out from behind his back and went inside the car and there was a shot". Other witnesses, while not seeing a weapon fire, corroborated the positions of the officer and the defendant and defendant's struggle with Wolf, during which time defendant grabbed at the officer's side. The Oakland County medical examiner testified that Officer Wolf died as a result of a gunshot wound between the shoulder blades. A state police officer trained and employed in firearms identification testified that the bullet which caused Wolf's death had markings similar to those contained in the revolver of the decedent. Officer Wolf's revolver was found on the ground near the defendant following defendant's collision with the vehicle driven by Officer Nimmor. The testimony of Officer Nimmor regarding defendant's assault upon him was fully corroborated by a second eyewitness. Finally, a forensic chemist testified that the presence of certain chemicals on defendant's left hand, and the area of their concentration, was consistent with the defendant having fired a gun.

The testimony presented at trial concerning defendant's actions and the location of the fatal wound to Officer Wolf demonstrates, in our opinion, that had Parker's testimony been eliminated [80 MICHAPP 689] the jury would still have convicted the defendant of each offense.

Where evidence improperly presented in rebuttal merely expands upon or supports testimony previously admitted, no prejudice results. People v. Smith, 15 Mich.App. 173, 166 N.W.2d 504 (1968); People v. Barbara, 23 Mich.App. 540, 179 N.W.2d 105 (1970); People v. Gibson, 71 Mich.App. 543, 248 N.W.2d 613 (1976).

Moreover, any prejudice caused by allowing the prosecutor to present at the conclusion of the trial evidence which...