People v. Sutherland

• Decision Date: 05 May 1986
• Docket Number: Docket No. 79253
• Court: Court of Appeal of Michigan — District of US
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Helena SUTHERLAND, Defendant-Appellant. 149 Mich.App. 161, 385 N.W.2d 637

Page 637

385 N.W.2d 637

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Helena SUTHERLAND, Defendant-Appellant.

Docket No. 79253

149 Mich.App. 161, 385 N.W.2d 637

Court of Appeals of Michigan.

Submitted Oct. 2, 1985.

Decided Dec. 20, 1985.

Released for Publication May 5, 1986.

[149 MICHAPP 162] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Conrad J. Sindt, Pros. Atty., and Wendelyn M. Harris, Asst. Pros. Atty., for the People.

State Appellate Defender by Rafael C. Villarruel, for defendant-appellant on appeal.

Before DANHOF, C.J., and MacKENZIE and BANKS ^*, JJ.

PER CURIAM.

Defendant was convicted by a jury of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, and possession of a firearm in the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). She was sentenced to serve from 5 to 15 years imprisonment for the second-degree murder conviction and 2 years imprisonment for the felony-firearm conviction. Defendant appeals as of right. We reverse.

[149 MICHAPP 163] This case stems from the shooting death of defendant's husband, Cortez Sutherland. On the evening of April 8, 1983, defendant and her husband engaged in an argument about drugs. The argument apparently precipitated defendant's decision to leave her husband. Defendant gathered some luggage and called a cab to take her to the bus station. Mr. Sutherland entered the cab with defendant and directed it to the address of a friend, Lee Glover. When they arrived at Glover's residence, Mr. Sutherland pulled defendant out of the cab. The two entered Glover's apartment and then went outside, where they continued arguing. A single gunshot was fired. Defendant screamed "Oh, my God, I did it" and ran into the building. When the police arrived, defendant turned over a small derringer. She was yelling "Why did he do it, why did he do it, I didn't mean to. I didn't mean to".

Defendant, who chose to testify at trial, interposed an accident defense. In cross-examining defendant, the prosecutor asked her if she had taken out a life insurance policy on her husband the day before the shooting. Defendant stated that she had gone to insurance agent Harry Ackerman three days before her husband's death, but denied that she told Ackerman that her husband would be unable to come in and sign the forms, that she signed Mr. Sutherland's name on a policy, or that she was named beneficiary of the policy. Over defense objection, the prosecutor called Ackerman as a rebuttal witness. Ackerman testified that defendant came to his office the day before the shooting to discuss a $50,000 life insurance policy on her husband. According to Ackerman, he permitted defendant to sign her husband's name on a policy in which defendant was named beneficiary.

The trial court allowed Ackerman's rebuttal [149 MICHAPP 164] testimony for impeachment purposes. Defendant contends that this was error. We agree. Extrinsic evidence may be used to impeach a witness on a material, as opposed to collateral, matter. See, e.g., MRE 608(b); People v. Losey, 413 Mich. 346, 320 N.W.2d 49 (1982); People v. Teague, 411 Mich. 562, 309 N.W.2d 530 (1981). Evidence of motive, such as the rebuttal testimony in this case, is always relevant in a murder prosecution. See People v. Mihalko, 306 Mich. 356, 10 N.W.2d 914 (1943); see also People v. Flynn, 93 Mich.App. 713, 287 N.W.2d 329 (1979), lv. den. 409 Mich. 852 (1980). However, the prosecutor may not elicit a denial during the cross-examination of a defense witness and then use that denial to inject a new issue into the case. People v. Bennett, 393 Mich. 445, 449, 224 N.W.2d 840 (1975). 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. Losey, supra.

The rule regarding rebuttal evidence by a prosecutor has developed from People v. Quick, 58 Mich. 321, 322-323, 25 N.W. 302 (1885), which stated:

"We have held on several occasions that the defendant has a right to know in advance of the trial what witnesses are to be produced against him, so far as then known, and to have any new witnesses endorsed on the information as soon as discovered. The object of this is not merely to advise a respondent what witnesses will be produced on the main charge. It is to guard him against the production of persons who are unknown, and whose character he should have an opportunity to canvass. It is as important to impeach a rebutting witness as any other. In the present case, however, the witnesses who were received as rebutting witnesses were not such. They were called to prove what belonged to the people's case in chief. Cases may sometimes arise where testimony which could not be had in the opening may be let in upon good cause shown thereafter. But it [149 MICHAPP 165] is not proper to divide up the testimony on which the people propose to rest their case, and nothing which tends to prove the commission of the crime itself or its immediate surroundings can be classed as rebutting evidence under ordinary circumstances, if at all." (Emphasis added.)

In the instant case, the issue of life insurance was not raised in the case in chief, nor was it raised by the defense. Instead, the issue was raised for the first time during the prosecutor's cross-examination of defendant. Accordingly, the rule of Quick was violated here; Ackerman's testimony was not proper rebuttal. See Losey, supra, Bennett, supra. See also People v. Hernandez, 423 Mich. 340, 377 N.W.2d 729 (1985). Moreover, even if we were to assume, as the prosecutor did below, that the rebuttal testimony did not go to a material element of the prosecution, Ackerman's rebuttal testimony would still be inadmissible. Extrinsic evidence may not be used to impeach a witness on a collateral matter. Teague, supra, 411 Mich. p. 566, 309 N.W.2d 530; Losey, supra, 413 Mich. p. 353, 320 N.W.2d 49; MRE 608(b).

Because we conclude that the introduction of Ackerman's rebuttal testimony constituted...