People v. Thompson

• Citation: 314 N.W.2d 606,111 Mich.App. 324
• Decision Date: 26 January 1982
• Docket Number: Docket No. 51657
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lewis THOMPSON, Defendant-Appellant. 111 Mich.App. 324, 314 N.W.2d 606
• Court: Court of Appeal of Michigan (US)

Page 606

314 N.W.2d 606

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lewis THOMPSON, Defendant-Appellant.

Docket No. 51657.

111 Mich.App. 324, 314 N.W.2d 606

Court of Appeals of Michigan.

Submitted June 17, 1981.

Decided Nov. 16, 1981.

Released for Publication Jan. 26, 1982.

[111 MICHAPP 326] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Chief Appellate Asst. Pros. Atty., Appeals, and A. George Best, II, Asst. Pros. Atty., for the People.

Judith Dennehy Doran, Birmingham, for defendant-appellant on appeal.

Before V. J. BRENNAN, P. J., and KAUFMAN and BORRADAILE, ^* JJ.

V. J. BRENNAN, Presiding Judge.

Defendant Lewis Thompson was convicted by a Recorder's Court jury in 1976 of assault with intent to do great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279. We granted defendant's application for delayed appeal.

[111 MICHAPP 327] Defendant was accused of assaulting his wife with a knife because she refused to smuggle drugs to him while he was incarcerated in Jackson Prison. During trial, three eyewitnesses, Mrs. Bussle, Miss Monroe, and the victim's son, testified that the defendant was the assailant who stabbed the complainant in the face, slashed her in the stomach, and repeatedly hit her on the head with a table leg. The complainant-wife also testified about the attack and her wounds. She further was allowed to testify, over defense objection, that defendant had threatened, by letter and by phone, to kill her two to four months before the assault because she would not smuggle drugs into the prison. She also testified, over defense objection, that defendant escaped from Jackson Prison the day before he assaulted her. Defendant's letters containing the threats were not produced during trial because complainant had destroyed them.

Defendant, testifying in his own behalf, stated that he hit the complainant with a table leg, cut her face with a knife, and stabbed her in the abdomen.

Numerous errors are alleged on appeal. Defendant objected at trial to the admission into evidence of a telegram without proper authentication and to testimony regarding defendant's attempts to convince his wife, the complainant, to smuggle drugs into Jackson Prison, his subsequent death threats upon her refusal, and his escapee status at the time of his assault on her. Defendant also contends that the trial court abused its discretion by allowing the prosecution to impeach him with evidence of three prior convictions, that the prosecution's questioning of defendant about his drug use unduly prejudiced him, and that the trial court erred by not specifically mentioning the [111 MICHAPP 328] alleged drug smuggling scheme when giving a limiting instruction regarding use of testimony of other uncharged offenses.

We find that none of these alleged errors, individually or collectively, warrants reversal.

Defendant first asserts that error was committed which requires reversal when the trial court admitted, over defense objection, a telegram purportedly sent by defendant to the victim the day after the attack.

It read as follows:

"Brenda, miss you this time but will see you as soon as you recover. Brenda, use your head and get in touch about with me just as soon as you get out of the hospital. If not I will be waiting for you the day you come home. Lewis"

The telegram contained the typed name "Lewis" and the defendant's mother's telephone number.

Before evidence may be admitted during trial, it must be authenticated by evidence sufficient to support a finding that the matter is what its proponent claims. MRE 901. Telegrams are not accepted as self-authenticating. However, a telegram may be authenticated if its contents and the surrounding circumstances indicate that the information it discloses is uniquely within the purported sender's knowledge or in reply to duly authenticated communications. MRE 901(4); People v. Adams, 162 Mich. 371, 385, 127 N.W. 354 (1910); People v. Rabin, 317 Mich. 654, 27 N.W.2d 126 (1947).

We find that the trial court abused its discretion by admitting the telegram without proper authentication. Champion v. Champion, 368 Mich. 84, 117 N.W.2d 107 (1962). However, since identification of [111 MICHAPP 329] the assailant was not an issue and three people had witnessed the attack on the complainant, reversal is not required because the error was harmless beyond a reasonable doubt. People v. Robinson, 386 Mich. 551, 194 N.W.2d 709 (1972).

Defendant argues that testimony concerning the alleged drug scheme, the death threats, and his escapee status should have been barred by the "similar acts" statute, M.C.L. § 768.27; M.S.A. § 28.1050. Although the drug scheme and subsequent threats undoubtedly qualified for admission under the "similar-acts" statute or MRE 404(b) as prior bad acts tending to establish motive, we agree that defendant's escapee status was not properly admitted under the "similar acts" statute. However, even granting that the admission of the latter testimony was error, in the light of the strength of the overwhelming evidence, we find no reasonable possibility that exclusion of such testimony would have altered the jury's verdict. Robinson, supra, 563, 194 N.W.2d 709; People v. Wilkins, 82 Mich.App. 260, 266 N.W.2d 781 (1978), rev'd on other grounds 408 Mich. 69, 288 N.W.2d 583 (1980); People v. Christensen, 64 Mich.App. 23, 235 N.W.2d 50 (1975), lv. den. 397 Mich. 839 (1976).

Relatedly, defendant argues that the complainant-wife's testimony regarding the alleged drug smuggling scheme and death threats was barred by the husband-wife privilege. In Michigan, this common law privilege is codified by statute. The statute states in relevant part:

"A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent, except * * * where the cause of action grows out of a personal wrong or injury done by one to the other, * * * nor shall either, during the marriage or afterwards, without the [111 MICHAPP 330] consent of both, be examined as to any communication made by one to the other during the marriage * * *." (Emphasis added.) M.C.L. § 600.2162; M.S.A. § 27A.2162.

It is to be noted that two common law privileges are codified into our statute: the "spousal privilege" and the "confidential communication" privilege. The "spousal privilege" applies to any testimony of a spouse without the consent of the other so long as the parties continue to be legally married at the time of the suit. It, however, is subject to expressed, enumerated exceptions. The "confidential communications privilege" applies, irrespective of the marital status of the parties at the time of the suit, to confidential communications made within the marital relationship. People v. Wadkins, 101 Mich.App. 272, 282, 300 N.W.2d 542 (1980).

Defendant argues that his wife's testimony regarding his drug smuggling scheme and his death threats, even if admissible under the similar-acts statute, was barred by the above statute. Thus, defendant would read the privilege expansively in favor of one seeking to invoke the privilege.

Most recently, the United States Supreme Court reexamined the rule of spousal privilege. Trammel v. United States, 445 U.S. 40, 52, 100 S.Ct. 906, 913, 63 L.Ed.2d 186 (1980). Chief Justice Burger, writing for the Court, stated:

"When one spouse is willing to testify against the other in a criminal proceeding-whatever the motivation-their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve. In these circumstances, a rule of evidence that permits an accused to prevent adverse spousal testimony seems far more likely to frustrate justice than to foster family peace."

[111 MICHAPP 331] The Court modified the rule in Federal courts to allow the privilege to be exercised only by the witness spouse.

There is no question that the defendant could not have prevented the victim-wife from testifying regarding the drug scheme and death threats because the statute clearly provides an applicable, expressed exception to the spousal privilege: i.e., where the cause of action grows out of a personal wrong or injury done by one to the other. People v. Sebring, 66 Mich. 705, 33 N.W. 808 (1887).

The language of the United States Supreme Court on this issue is quoted only for insight into the policy behind the spousal privilege. It bears on the issue here to the extent that the complainant should have been allowed, as she did, to testify to anything relevant to prove the charged offense. Therefore, any testimony that was relevant and not barred by the "similar-acts" statute was permissible and should not have been barred by the spousal privilege. Wadkins, supra, 101 Mich.App. at 282...