People v. White

• Decision Date: 13 October 1975
• Docket Number: Docket No. 20202
• Citation: 236 N.W.2d 583,65 Mich.App. 56
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Adoise WHITE, Defendant-Appellant. 65 Mich.App. 56, 236 N.W.2d 583
• Court: Court of Appeal of Michigan — District of US

Page 583

236 N.W.2d 583

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Adoise WHITE, Defendant-Appellant.

Docket No. 20202.

65 Mich.App. 56, 236 N.W.2d 583

Court of Appeals of Michigan.

Oct. 13, 1975.

Released for Publication Jan. 5, 1976.

[65 MICHAPP 57] Denison, Devine, Porter & Bartush by Charles J. Porter, Bloomfield Hills, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.

[65 MICHAPP 58] Before V. J. BRENNAN, P.J., and D. E. HOLBROOK and CAVANAGH, JJ.

V. J. BRENNAN, Presiding Judge.

Defendant, Adoise White, was charged with first-degree murder in violation of M.C.L.A. § 750.316; M.S.A. § 28.548, as a result of the killing of the manager of a Kroger supermarket during an armed robbery on March 16, 1963, in the Township of Waterford, Oakland County. Defendant's accomplice, one Charles Hodges, pleaded guilty to second-degree murder and testified against defendant. Defendant was tried by a jury and convicted of first-degree murder in Oakland County Circuit Court on August 13, 1963. Defendant's conviction was reversed by this Court on May 1, 1972. People v. White, 40 Mich.App. 433, 198 N.W.2d 904 (1972). Defendant was tried again by a jury and convicted of first-degree murder on August 29, 1973. Again, defendant appeals.

The victim, Robert Green, was the assistant manager of a Kroger store, and was defendant's employer. The victim's body was discovered in a small room in the store in the early morning hours of March 17, 1963. The victim's hands were tied behind his back. A representative from the Oakland County Medical Examiner's Office testified that Robert Green had been stabbed or slashed at least 42 times and that he had also suffered a number of other wounds. The victim was also shot once at the base of the head. The cause of death was a stab wound on the left side of the chest which entered the victim's heart. An auditor for the Kroger store testified that the store's safe was short $1,733.

At a Walker hearing held on January 8, 1973, the trial judge ruled inadmissible as involuntary a confession obtained from defendant on March 19, 1963. During the trial, on August 14, 1973, the [65 MICHAPP 59] trial judge ruled inadmissible as substantive evidence a filmed interview of defendant by Ven Marshall, a TV-news reporter, which was made on March 19, 1963, while defendant was still unrepresented by counsel. The judge ruled, however, that if defendant chose to take the stand to deny his guilt, he would allow the filmed interview to be used for rebuttal.

Defendant's accomplice, Charles Hodges, had apparently informed the prosecution that he would give testimony in this trial substantially similar to his testimony at the former trial in which he testified against defendant. Shortly before being called as a witness, however, Hodges changed his mind and began to deny the truth of testimony he had given at the previous trial. The prosecution proceeded to call Hodges as a witness, and when Hodges denied that either he or defendant were ever involved in any robbery or murder at the Kroger store, the prosecution was allowed over objection to impeach Hodges' testimony by a filmed television statement he had made and by reading into the record Hodges' testimony in the previous trial.

The prosecution also called Ven Marshall, the television-news reporter, to lay a foundation for the introduction of the filmed statement of Charles Hodges. The prosecutor asked Marshall if he could remember what questions he had asked and what answers he had received. In response thereto Marshall replied, 'Quite obviously I can't remember the wording of the questions verbatim, but I did ask Mr. White and Mr. Hodges did they participate in the slaying of Mr. Green, and both told me they had.'

Defendant brings several allegations of error, three of which merit our discussion.

[65 MICHAPP 60] The defendant first contends that the trial court committed reversible error mandating reversal by permitting, over defense objection, the impeachment of an accomplice called to testify by the prosecution.

As a general rule a party cannot impeach his own witness. People v. Lee, 307 Mich. 743, 12 N.W.2d 418 (1943). This rule has roots deep in our common law traditions, but the precise origin thereof is not clear. See McCormick, Evidence (2d ed.), § 38, p. 75. Exceptions have been made, however, where the prosecution in a criminal case is required to call res gestae witnesses. People v. Elco, 131 Mich. 519, 91 N.W. 755 (1902), M.C.L.A. § 767.40a; M.S.A. § 28.980(1).

The policy to be served by the rule against impeaching one's own witness is anything but clear. Its defenders contend that the party who calls the witness to testify vouches for his credibility, and that if the calling party is allowed to impeach his own witness he could coerce the desired testimony by the threat of character assassination under the guise of impeachment. The former rationale has little weight, since with the exception of character witnesses and expert witnesses, a litigant has very little choice in the selection of witnesses. He must call those who have some firsthand knowledge of the facts in controversy. We note that five jurisdictions have by statute expressly provided for the impeachment of one's own witnesses by prior inconsistent statements, and eleven jurisdictions allow such impeachment if the witness is proved to be adverse. California has abandoned the rule against impeaching one's own witness in its entirety, as has Kansas. ¹ Further, the newly enacted Federal Rules [65 MICHAPP 61] of Evidence completely abandon the rule. ² The Advisory Committee's Note accompanying the proposed Rule 607 prior to adoption explains the reasoning behind the change in the rule.

'The traditional rule against impeaching one's own witness is abandoned as based on false premises. A party does not hold out his witnesses as worthy of belief, since he rarely has a free choice in selecting them. Denial of the right leaves the party at the mercy of the witness and the adversary. * * * The substantial inroads into the old rule made over the years by decisions, rules, and statutes are evidence of doubts as to its basic soundness and workability. * * *' The peculiar posture of this case is noteworthy. In a former trial, the witness had been allowed to plead guilty to second-degree murder and had testified against defendant. He admitted having told the prosecution prior to this trial that he would testify against the defendant as he had previously. During the trial he changed his mind. If he had refused to testify altogether, he would have been deemed unavailable and his prior recorded testimony would have been admissible as substantive evidence for the prosecution. People v. Pckett, 339 Mich. 294, 63 N.W.2d 681 (1954). As it was, he took the stand and denied his own guilt and the guilt of defendant. If defendant had called Hodges as his witness, and Hodges had given the same testimony, the prosecution would have been allowed to impeach him with his prior recorded testimony as well as other prior inconsistent statements. If the witness had not informed the prosecution of his intention to testify favorably to the defendant prior to taking...