People v. Whalen

• Decision Date: 20 January 1984
• Docket Number: Docket No. 53718
• Citation: 129 Mich.App. 732,342 N.W.2d 917
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Barry WHALEN, Defendant-Appellant. 129 Mich.App. 732, 342 N.W.2d 917
• Court: Court of Appeal of Michigan — District of US

Page 917

342 N.W.2d 917

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Barry WHALEN, Defendant-Appellant.

Docket No. 53718.

129 Mich.App. 732, 342 N.W.2d 917

Court of Appeals of Michigan.

Submitted Dec. 21, 1982.

Decided Oct. 24, 1983.

Released for Publication Jan. 20, 1984.

[129 MICHAPP 735] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Larry L. Roberts, Asst. Pros. Atty., for the People.

Sheldon Halpern, Detroit, for defendant-appellant.

V.J. BRENNAN, P.J., and KELLY and GRAVES, JJ. ^*

GRAVES, Judge.

Defendant, Michael Barry Whalen, appeals as of right his conviction of second-degree[129 MICHAPP 736] murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, alleging numerous errors for our consideration. Defendant was tried before a jury in a joint trial with codefendant Patrick McDonald. McDonald, who had been charged with manslaughter, had waived his right to a jury trial and was acquitted by the trial judge. The first issue raised by defendant concerns the admission at trial of the preliminary examination testimony given by Patricia (Moyer) Whalen. The preliminary examination was held on July 5, 1979, and the trial commenced on August 21, 1979. Patricia Moyer, a res gestae witness to the homicide, married the defendant on July 31, 1979. At the trial the defendant asserted that the marital privilege, M.C.L. Sec. 600.2162; M.S.A. Sec. 27A.2162, precluded his wife from being called as a witness. When the prosecutor then offered the preliminary examination testimony of Patricia Moyer, the defendant objected on the ground that the testimony consisted of impeachment by the prosecution of its own non-res gestae witness. The trial court overruled this objection and admitted the preliminary examination testimony into evidence.

Defendant first argues that none of the preliminary examination testimony should have been admitted because the defendant did not consent to having his wife testify against him. M.C.L. Sec. 600.2162; M.S.A. Sec. 27A.2162 embodies the marital privilege. The relevant portion of that statute reads, "[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". The spousal privilege in Michigan, like the modern common law privilege, is narrow in its justification and ought to be correspondingly narrowly construed in its scope. People v. Wadkins, 101 Mich.App. 272, 283, 300 N.W.2d 542 (1980). We hold that [129 MICHAPP 737] the testimony of a spouse, given at a preliminary examination at a time when the spouse was not married to the defendant, is admissible at the trial when the defendant asserts the marital privilege. Such preliminary examination testimony is clearly admissible pursuant to either M.C.L. Sec. 768.26; M.S.A. Sec. 28.1049, or MRE 804(a)(1), 804(b)(1). M.C.L. Sec. 768.26; M.S.A. Sec. 28.1049 reads:

"Testimony taken at an examination, preliminary hearing, or at a former trial of the case, or taken by deposition at the instance of the defendant, may be used by the prosecution whenever the witness giving such testimony can not, for any reason, be produced at the trial, or whenever the witness has since giving such testimony become insane or otherwise mentally incapacitated to testify."

A witness may actually attend the trial and yet still be "unavailable" as that term is implied in M.C.L. Sec. 768.26; M.S.A. Sec. 28.1049. See People v. Burgess, 96 Mich.App. 390, 401, 292 N.W.2d 209 (1980).

MRE 804(a)(1) states:

"(a) Definition of unavailability. 'Unavailability as a witness' includes situations in which the declarant--

"(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement * * *."

MRE 804(b)(1) provides:

"(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

"(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the [129 MICHAPP 738] party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination."

If the marital privilege is asserted at trial, the defendant's spouse is "unavailable" as a witness within the meaning of both the aforementioned statute and rules of evidence. Consequently, if the spouse testified at the preliminary examination at a time when the spouse was not married to the defendant, or, alternatively, if the spouse testified at the preliminary examination while married to the defendant and the marital privilege was not properly asserted, the preliminary examination testimony is admissible at trial when the marital privilege is asserted by the defendant. Such a holding is consistent with decisions rendered by courts of several of our sister states. See Wells v. Commonwealth, 562 S.W.2d 622, 624 (Ky.1978); Simms v. State, 492 P.2d 516, 520-521 (Wyo.1972); State v. Woods, 130 Kan. 492, 493, 287 P. 248 (1930).

Defendant presents further argument concerning the admission at the trial of a certain portion of the preliminary examination testimony of Mrs. Whalen. During direct examination at the preliminary hearing, the witness testified that she had not previously discussed with the defendant anything about the incident in question. Following this response, the prosecutor showed the witness two pieces of paper marked "Witness Statement". He then asked her to read from that document a particular question and answer. The witness refused to read it and stated that she knew what it said. The prosecutor proceeded and asked her if she knew Sergeant Dwyer. The witness responded affirmatively and admitted making a statement to him at the police station. She further admitted [129 MICHAPP 739] that the "Witness Statement" was an accurate recording of her discussion with Sergeant Dwyer. Mrs. Whalen stated that the signature thereon was hers, but that not all of the statements she made at that time were true. The testimony continued:

"Q. Now, specifically, do you recall me having you read a specific question and answer from the Statement?

"A. Uh-huh.

"Q. Do you recall giving--being asked this question and giving this answer.

"First of all, let me read the question. 'Question: Is there anything else you can tell me about the fight?

" 'Answer: Yes. When Mike Whalen first came out to the car, he told me, "Yeah, I stabbed the guy," just like that. Also, on the way home Mike said that when he was leaving the restaurant there was a guy that had a hold of Louie Fenazzio. Mike confronted the guy and he said he was a police officer and told Mike to stay there, and put a gun to Mike's chest. Mike said, "Show me some ID," and the guy did and Mike threw it out into Eight Mile and said, "You're going to have to kill me and you'll get killed too." Then someone hit the police officer and Mike came out to the car.

" 'As we were leaving, Frank and Louie were coming out and Mike asked them if the guy was alive or dead. They said they didn't know, and that's all I know. I really didn't see the fight.'

"Do you recall being asked that question and did you give that answer?

"A. Okay. One thing--

"Q. First of all, answer that and then we'll proceed from there.

"Do you recall being asked that question and giving that answer?

"A. The only--they--

"Q. Will you just answer the question?

"A. Sgt. Dwyer told me everything.

"THE COURT: Ma'am, we have our little particular procedures and he is going to give you an opportunity [129 MICHAPP 740] to answer more fully, but first, we have to ask you the questions in a certain order because we have Rules of Evidence.

"THE WITNESS: Say it again.

"Q. (By Mr. Janice, continuing): Do you recall being asked that question and giving that answer?

* * *

"The question and answer which I have just read to you, ma'am, do you recall being asked that question and giving that answer? Just answer that yes or no.

"A. No."

Defendant argues that the aforementioned impeachment testimony, originally presented at the preliminary examination, was improperly admitted at trial. We agree that the admission of the impeachment testimony at trial was improper and violated MRE 607. Generally, the calling party may not impeach his own witness. MRE 607; People v. White, 401 Mich. 482, 508, 257 N.W.2d 912 (1977). However, MRE 607(2)(A) provides that the calling party may impeach the credibility of a witness "if (A) the calling party is the prosecutor and he is obliged to call the witness". MRE 607(2)(C) provides that the calling party may impeach the credibility of a witness if "the witness's testimony was contrary to that which the calling party had anticipated and was actually injurious to the calling party's case".

In the case at bar, the impeachment testimony was not admissible within the scope of MRE 607(2)(A). The only witnesses that the prosecutor is required to call are res gestae witnesses. M.C.L. Sec. 767.40; M.S.A. Sec. 28.980; People v. Brooks, 96 Mich.App. 96, 98, 292 N.W.2d 139 (1980). There is no question that Mrs. Whalen was a res gestae witness as that term is defined in People v. Hadley, 67 Mich.App. 688, 690, 242 N.W.2d 32 (1976). She was present [129 MICHAPP 741] with defendant at the scene of the crime at the time of the alleged homicide and drove away with defendant from the crime scene. Nevertheless, even though Mrs. Whalen was a res gestae witness, the prosecutor was not obliged to call her at trial because at the time of the trial Mrs. Whalen was the defendant's wife. In People v. Raider, 256 Mich. 131, 135, 239 N.W. 387 (1931), the Court, in discussing exceptions to the prosecutor's duty to...