PEOPLE
v.
JOHNSON
Docket No. 78-3564.
Michigan Court of Appeals.
Decided October 8, 1980.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General William F. Delhey, Prosecuting Attorney, and David A. King, Assistant Prosecuting Attorney, for the people.
Jerrold B. Sherman, for defendant on appeal.
Before: DANHOF, C.J., and M.J. KELLY and G.R. CORSIGLIA,[*] JJ.
PER CURIAM.
Defendant was convicted by a jury of criminal sexual conduct in the third degree, contrary to MCL 750.520d; MSA 28.788(4). He was sentenced to a prison term of from 5 to 15 years and now appeals as of right.
On December 4, 1974, nine days after the alleged criminal act took place, defendant made a voluntary exculpatory statement to the police explaining his activities on the night in question. The statement was tape recorded. Defendant took the stand during trial and, on cross-examination, the prosecutor attempted to impeach his trial testimony by questioning him about inconsistent remarks made in the earlier statement. The prosecutor informed defendant of the date and location of the prior statement and the police officer involved. Defendant admitted having made a statement but denied recollection each time he was questioned about specific remarks. In rebuttal, the prosecution called police officer Fred LaBarge, who had taken the December 4, 1974, statement. Over objection, the officer testified regarding the circumstances *597 of defendant's statement and the tape recording was played to the jury.
Defendant first argues that the prosecution committed misconduct by concealing the fact that defendant's statement had been tape recorded. The original information filed in the case indicated that defendant had made a statement to Officer LaBarge on December 4, 1974, which might be used as evidence. Discovery efforts by defense counsel could have revealed the existence of the tape recording. On the first day of trial, Officer LaBarge testified that defendant had "initialed a taped statement". Defense counsel did not request to listen to the tape before defendant took the stand on the second day of trial. Under these circumstances, we find there was no prejudicial misconduct by the prosecution.
Defendant next claims the prosecution laid an inadequate foundation for impeachment of his testimony with the prior inconsistent statements during cross-examination and for the playing of the tape in rebuttal. According to defendant, the tape recording was equivalent to a writing under MRE 613, which required disclosure of the contents of the tape recording to defendant to refresh his recollection prior to impeachment. The rule states:
"(a) * * * In examining a witness concerning a prior statement made by the witness, if written the statement must be shown to the witness and if oral, its substance and the time, place, and person to whom the statement was made must be disclosed to the witness, and on request must be shown or disclosed to opposing counsel.
"(b) * * * Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity *598 to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2)."
In construing MRE 613, words are to be given their ordinary meanings. See, Samuel Reiter Painting Co v Bill Miedler Homes, Inc, 87 Mich. App. 75; 273 NW2d 592 (1978), lv den 406 Mich. 911 (1979). We believe that the plain meaning of "written" in the rule belies any claim that tape recordings should be considered as written statements. The prosecutor laid the proper foundation for impeachment by asking defendant whether he had made the prior inconsistent statements, giving the substance of the statements, indicating the time and place of the statement and naming the person to whom they were made. People v Williams, 93 Mich. App. 236; 287 NW2d 184 (1978).
Defendant's claim that it was improper for the trial court to allow the tape to be played in rebuttal, where he had denied recollection of the prior inconsistent statements, lacks merit. Where a witness denies recollection of a prior inconsistent statement, proof of that statement by extrinsic evidence can be made. People v Martin, 75 Mich. App. 6; 254 NW2d 628 (1977), lv den 402 Mich. 881 (1978), People v Lynn, 91 Mich. App. 117; 283 NW2d 664 (1979). Defendant relies on People v Miller, 49 Mich. App. 53; 211 NW2d 242 (1973), in which this Court held that introduction of a witness's prior statements was improper impeachment where the statements concerned matters not testified to on direct examination. In the present case, defendant's prior statement concerned his activities on the night of the crime as did his testimony on direct examination. The trial judge specifically instructed the jury that only defendant's *599 testimony from the stand was to be considered as evidence and the sole purpose for admitting the recorded statement was rebuttal of such trial testimony.
The first portion of the tape recording contained the comments of police officer LaBarge summarizing the allegations made against defendant by the victim. Defense counsel objected to the officer's comments as hearsay. The trial judge overruled the objection and instructed the jury to consider the officer's statements not as evidence against defendant but only as a means of understanding the answers given by defendant in response to the officer's questions. MRE 801 defines hearsay as a statement, other than one made by the declarant at trial, offered in evidence to prove the truth of the matter asserted. Officer LaBarge's comments on the tape were offered to put the defendant's statements in the appropriate context, not to prove the truth of the matter asserted therein. They were not hearsay.
Finally, defendant contends that the prosecutor committed misconduct by encouraging the jurors to consider the tape recording as substantive evidence. No objection was made to this allegedly improper argument, which we believe was not so improper that any prejudicial effect could not have been eliminated by a curative instruction. Appellate review of this issue is foreclosed under People v Walker, 93 Mich. App. 189; 285 NW2d 812 (1979).
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.