People v. Wilkins

• Decision Date: 04 March 1980
• Docket Number: Docket No. 61476
• Citation: 288 N.W.2d 583,408 Mich. 69
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Nathaniel WILKINS, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 583

288 N.W.2d 583

408 Mich. 69

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Nathaniel WILKINS, Defendant-Appellant.

Docket No. 61476.

Supreme Court of Michigan.

March 4, 1980.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, and Anne B. Wetherholt, Asst. Pros. Atty., Detroit, for the People.

Charles Burke, Livonia, for defendant-appellant.

PER CURIAM.

The trial judge allowed testimony by a police officer on the content of the information a tipster provided him. We believe he erred and we reverse.

I

Nathaniel Wilkins was convicted of carrying a concealed weapon. The charge originated from the observations of police officers who had been told what to watch for through an informant's tip. While conducting surveillance of a home in Detroit, they observed the defendant enter a car. The car drove away, and the police followed. Wilkins was driving the car, and when the police first ordered him to stop, he refused and drove on. At one point he threw a shiny object from the car. One of the policemen in the pursuing police car got out and retrieved the shiny object while the other policeman continued to chase Wilkins and eventually stopped him. The shiny object was an automatic pistol.

The Court of Appeals affirmed the conviction, but reduced Wilkins' minimum sentence to 40 months. 82 Mich.App. 260, 266 N.W.2d 781 (1978).

II

The prosecutor asked one of the police officers what the informant had told him, and defense counsel objected:

"The Court : Well, I am informing the jury that it is not the testimony the officer is giving is not evidence but merely a basis for the subsequent action of the officers.

"But we can even cut it further. Based on what the informer told you, what did you do?

"Mr. LaBret (Assistant Prosecuting Attorney ): Well, your Honor, I would like to lay a foundation.

"The Court : Go ahead.

"Q. Now, Officer Lutz, what did the informant tell you?

"A. I was informed at 8 o'clock p. m. that evening that a black male, late twenties, wearing a gray suit, would be in a gray Cadillac '75 sedan, license George Paul X-ray 233. He was supposed to be at 14009 Mendota, and that he's carrying a gun, informant seen that gun with him earlier in the evening.

"Q. Did you inform the rest of your crew?

"A. Yes.

"Q. What did you do then?

"A. At approximately 8:30 we went by that address and looked for the car. The car was gone.

"Q. What did you do?

"A. We re-checked it later at approximately 10:30 and observed the car there.

"Q. The Cadillac in question?

"A. Yes."

The Court of Appeals said:

"The basis of the defendant's objection to the admission of testimony concerning the tipster's information is that it was inadmissible hearsay. His argument falls with its premise. Hearsay is an extrajudicial statement offered to prove the truth of the matter asserted. People v. Cunningham, 398 Mich. 514, 248 N.W.2d 166 (1976), McCormick, Evidence (2d ed), § 246. In the case at bar, the jury was instructed that the testimony was not offered to prove the truth of the informant's statements but only to illustrate the basis for the officers' subsequent actions. Thus, the testimony was not hearsay and its admission was not error." 82 Mich.App. 264-265, 266 N.W.2d 783-784.

It is our view that it matters not whether the testimony of the police officer in this vein is considered to be hearsay. A more fundamental consideration needs, and up to this point has not received, address.

Assuming, Arguendo, that the testimony in question was being offered for a purpose other than its truth, and thus did not constitute hearsay, all inquiry does not end. The next question which must be asked and satisfactorily answered, is what will the proffered testimony tend to establish, and assuming that the testimony will establish something, will that "something" serve to shed light upon a material issue in dispute?

MRE 401 ¹ provides:

" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

We conclude that the police officers' state of mind, as sought to be established through the testimony in question, was not a "fact * * * of consequence to the determination of the action". Moreover, even if the officers' state of mind could be said to have had some relevance, that does not mean that the judicial duty in admitting such evidence is circumscribed by such a conclusion. MRE 105 states:

"When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly."

The evidence was received for a limited purpose, that is, to establish the reason that the police took subsequent action. Even if this evidence could be said to have had some marginal relevance as "background" to the police officer's narrative, the testimony could have been limited to the statement that the police officer was responding to a tip. This was not done.

Finally, MRE 403 provides:

"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

Even if we were to accept (which we cannot) the argument that the evidence in question was relevant, the prejudice emanating from the introduction of such evidence far outweighed its probative value. The testimony, while bearing upon the reason why the officers acted as they did, also provided the jury with the content of an unsworn statement of an informant who was not produced at trial. This statement pointed to the defendant's guilt of the crime charged. Putting aside the confrontation problems which the admission of this statement engenders, the prejudicial impact of this evidence, offered for a limited purpose, is self-evident.

Accordingly, for all of the aforementioned reasons, in lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the defendant's conviction and remand to Recorder's Court for the City of Detroit for a new trial.

MOODY, LEVIN, KAVANAGH, RYAN and FITZGERALD, JJ., concur.

WILLIAMS, Justice (for affirmance).

The controversy in this carrying-a-concealed-weapon case centers on the trial court's allowance of testimony by a police officer on the content of information a tipster had provided him. The testimony in question was permitted over defense counsel's hearsay objection on the grounds that it was not evidence, but merely served as the basis for the subsequent action of the officers. The trial court so instructed the jury as to this limited use at the time the objection was raised.

Basically, the complained-of testimony is represented by this answer:

"A. I was informed at 8 o'clock p. m. that evening that a black male, late twenties, wearing a gray suit, would be in a gray Cadillac '75 sedan, license George Paul X-ray 233. He was supposed to be at 14009 Mendota, and that he's carrying a gun, informant seen that gun with him earlier in the evening."

The Court of Appeals was correct in saying that the testimony of the police officer as to the content of the tipster's report was not hearsay because, as the trial court made clear, such testimony was not offered to prove the truth of the informant's statement. As the Supreme Court of Virginia cogently observed:

"The hearsay rule does not operate to exclude evidence of a statement, request, or message offered for the mere purpose of explaining or throwing light on the conduct of the person to whom it was made. The evidence was admitted not for the purpose of showing the guilt or innocence of the defendant; but for the purpose of showing the reason for the police officers' action in arresting him." Fuller v. Commonwealth, 201 Va. 724, 729, 113 S.E.2d 667, 670 (1960). Accord, Manz v. Commonwealth, 257 S.W.2d 581, 582 (Ky., 1953); State v. Bright, 269 S.W.2d 615, 623 (Mo., 1954); People v. Fischer, 49 Cal.2d 442, 446, 317 P.2d 967, 970 (1957); People v. Garcia, 31 Mich.App. 447, 455, 187 N.W.2d 711, 714 (1971); United States v. Demopoulos, 506 F.2d 1171, 1175-1176 (CA 7, 1974).

This testimony, in establishing the reason for the officers' surveillance of defendant's car, is relevant as "background" to the police officer's narrative. To require a trial judge to pare a witness's testimony of everything but its barest factual essentials might well serve to confuse or mislead the jury, as well as being a dangerous curtailment...