People v. Rodgers

• Decision Date: 01 October 1971
• Docket Number: No. 1,Docket No. 8675,1
• Citation: 36 Mich.App. 211,193 N.W.2d 412
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Douglas RODGERS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 412

193 N.W.2d 412

36 Mich.App. 211

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Douglas RODGERS, Defendant-Appellant.

Docket No. 8675.

Court of Appeals of Michigan, Division No. 1.

Oct. 1, 1971.

Released for Publication Jan. 21, 1972.

Samuel A. Turner, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas P. Smith, Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and R. B. BURNS and LEVIN, JJ.

J. H. GILLIS, Presiding Judge.

Defendant, Larry Douglas Rodgers, appeals his conviction by a jury of the offense of robbery armed. ¹ The offense occurred on March 7, 1969, at approximately 8:40 p.m. in the City of Ecorse, Michigan.

The victim testified that while he was driving his automobile it was bumped from behind by another vehicle. The complainant observed that the car which struck him had no lights on and he immediately pulled to the curb. The other car pulled parallel to complainant's car. Mr. Walker, the complainant, rolled down the window and noticed that the other car was occupied by 5 or 6 men. One man, sitting in the right front seat of the striking vehicle, said 'We don't think there is much damage.' Mr. Walker got out of his car to inspect the damage; he left his vehicle running and the lights on. Mr. Walker stated that one of the occupants of the striking automobile ran past him just as he reached the rear of his car to inspect the damage. This individual got into Mr. Walker's car, and when Mr. Walker rushed back this person leaped out with a gun in hand. The gun wielder pointed it at Mr. Walker saying, 'I got a gun, I got a gun.' The complainant testified that the remaining occupants of the striking vehicle got out of their car and began 'working me over,' and one of them took the complainant's wallet from his back right pocket. Mr. Walker identified the person with the gun as defendant, Larry Douglas Rodgers, and testified that the defendant pointed the gun at complainant's face and struck him with it. The assailants attempted to force Mr. Walker into his own automobile, but Mr. Walker ran from them at his first opportunity. After he traveled about 25 or 30 feet, he was shot in the back. The bullet struck about an inch from the spine at belt level. Mr. Walker ran to the nearest house where the occupants summoned police.

Patrolman Ohannasian of the Melvindale Police Department testified that on the morning of March 8, 1969, at approximately 12:45 a.m., he and his partner drove into a White Castle restaurant parking lot where he observed the complainant's automobile parked. ² Officer Ohannasian testified that the car was empty, and thus the officers drove out of the parking lot to a point nearly where continued surveillance could be made. The officer testified that he observed defendant and a young lady entered the car. At that moment the officers drove back into the lot and parked behind the automobile in question. Defendant was placed under arrest.

At trial, the victim identified defendant as the assailant who held the gun on him.

The defense was alibi. Defendant claimed he was at a high school basketball game at the time the robbery was committed. The defense produced several witnesses to substantiate this argument. One of those who testified on defendant's behalf was Samuel King. On direct examination Mr. King stated that he met the defendant at a basketball game and that they were together for the remainder of the evening. Later in the course of the trial, the prosecution recalled the investigating officer, Detective Taylor, who read, over defendant's objection, a statement he allegedly took from witness King at the time Taylor interviewed him: ³

'The Witness (Detective Taylor): This is the statement of Samuel King taken by Detective Charles Taylor at 2249 South Electric, Detroit, Michigan. Time: 1:30 a.m. Saturday, June 14, 1969: 'I went to the game that night. I saw Larry there but it wasn't until after the game. Anyway, the game was over I don't know what time it was but Larry did not go to the Castle with me. We were parked in the Castle parking lot. Larry might have come over sometime during the time he was at the Castle and got in my car and got right back out but he didn't go to the Castle with me. They told me to say that he was with me but I told them I wasn't going to lie for them and I didn't want to get involved.'

'This is what he told me.'

The court overruled the objection following the prosecutor's explanation that the evidence was being introduced solely for impeachment purposes. The statement was not read to prove the truth or falsity of witness King's prior testimony. Instead, it was read to contradict the prior testimony. The statement is not hearsay information as that term is evidentially understood.

'Testimony, the truth of which is not to disprove the crime but which if believed would tend to discredit witnesses, cannot be classed as hearsay.' Smith v. United States (CA 6, 1960), 283 F.2d 16, 20, cert. den. 365 U.S. 847, 81 S.Ct. 808, 5 L.Ed.2d 811.

In accord: United States v. 88 Cases, More or Less, Containing Bireley's Orange Beverage (CA 3, 1951), 187 F.2d 967, 974; Carantzas v. Iowa Mutual Insurance Co. (CA 5, 1956), 235 F.2d 193, 196; Young v. State Farm Mutual Automobile Insurance Co. (CA 4, 1957), 244 F.2d 333, 337.

Nor is the use of witness Taylor's memorandum statement an example of present memory improperly refreshed. For unlike present memory refreshed, the document referred to by the testifying witness was not set aside. People v. Thomas (1960), 359 Mich. 251, 102 N.W.2d 475; People v. Redman (1969), 17 Mich.App. 610, 170 N.W.2d 254. Instead, this document was read into the record.

The memorandum now in question allegedly is Dectective Taylor's verbatim transcription of his interview with witness King. Its contents, if actually stated by witness King and accurately recorded by Detective Taylor, constitute a prior incomsistent out-of-court statement. To introduce such a prior inconsistent statement, the laying of a proper foundation is required. Osborne v. United States (CA 9, 1967), 371 F.2d 913, cert. den. 387 U.S. 946, 87 S.Ct. 2082, 18 L.Ed.2d 1335; People v. Keller (1933), 261 Mich. 367, 246 N.W. 151. The foundation was laid when Mr. King, on cross-examination, was challenged with the information he allegedly gave Detective Taylor:

'Q. Do you know this man right here sitting in front of me?

'A. I don't know him.

'Q. You don't know him?

'A. No.

'Q. Do you know who he is?

'A. I know he is a detective.

'Q. Do you know what his name is?

'A. Taylor.

'Q. Taylor?

'A. Yeah.

'Q. All right. Is today the first day you ever saw him?

'A. No.

'Q. Did he come to see you over the weekend?

'A. Yes.

'Q. Did you talk to him over the weekend?

'A. Yes.

'Q. Did you tell him anything different than you told us here today?

'A. No.

'Q. Did you tell Detective Taylor, when he came to see you this weekend, that this man had never been in your car on that evening and wasn't riding with you that evening?

'A. No, I didn't.

'Q. And you hadn't been with him a whole year at that time?

'A. No.

'Q. Did you tell the detective that?

'A. No.

'Q. You didn't?

'A. No.

'Q. You are sure about that, huh?

'A. Yes.'

Witness King denied ever telling Detective Taylor anything which was inconsistent with his trial testimony. When the prosecution recalled Detective Taylor to refute, this, he testified:

'Q. Did you take a written statement from Mr. King?

'A. I wrote it down and Mr. King was talking.

'Q. As Mr. King was talking to you, you wrote it down?

'A. Yes, Exactly word for word what he said.

'Q. All right, I'm going to show you a piece of paper and ask you if you can identify that.

'A. Yes.

'Q. All right, can you tell me what it represents to you?

'A. That is a statement Mr. King given (sic) to me by him.'

Detective Taylor also testified that Mr. King declined to sign this statement because he 'did not want to get involved.'

Detective Taylor's memorandum was introduced solely to impeach Mr. King's prior in-court testimony. It is generally held that a witness may be impeached by showing that his testimony upon a material matter is inconsistent with a prior statement made by him. 3A Wigmore on Evidence, §§ 1017--1022, pp. 993--1018; McCormick on Evidence § 36, pp. 66--67. A witness may be impeached by producing written statements which are inconsistent with the testimony given at the trial. 1 Underhill's Criminal Evidence (5th ed.), § 230, p. 531. Michigan courts have traditionally allowed written statements made at the direction of the witness to be later used to impeach the witness' prior testimony. People v. Kennedy (1895), 105 Mich. 434, 63 N.W. 405; People v. Tice (1897), 115 Mich. 219, 73 N.W. 108; People v. Dellabonda (1933), 265 Mich. 486, 251 N.W. 594; People v. DeBeaulieu (1944), 308 Mich. 173, 13 N.W.2d 250. Witness King allegedly told witness Taylor what he knew. The memorandum, written in the had of witness Taylor, represents the summary of that interview. Whether it is a verbatim transcription or the conclusions of witness Taylor is for the finder of fact to determine. However, in either instance it represents an alleged contradictory position to witness King's in-court testimony, and for the purposes of impeachment, was admissible. People v. Nemeth (1932), 258 Mich. 682, 242 N.W. 808.

Furthermore, the trial court correctly instructed the jury that they could only consider this evidence for impeachment purposes. People v. Durkee (1963), 369 Mich. 618, 120 N.W.2d 729. The court advised the jury that they could not consider the statement of King as recited by witness Taylor for the purpose of its truth nor could it be considered as substantive evidence. He further advised the jury that they could consider this testimony Only for the purpose of testing the credibility of the witness.

We find no...