People v. Spalla

M. J. Kelly, J.

(dissenting). I cannot agree with the majority that the error committed by the trial court in allowing the prosecutor to impeach the credibility of his own witness by a rebuttal witness was harmless beyond a reasonable doubt.

The purported statement by the wife of the victim to a friend that she would share the life insurance proceeds from the victim’s death with whomever she could find to kill him was collateral to the issue of defendant’s guilt and extremely prejudicial to the defendant. The prosecutor called the wife as a witness, but she denied making the statement. Subsequently, the prosecutor called the friend of the wife, and over the defendant’s objection, she testified that approximately 9 to 12 months prior to the victim’s death, his wife had made the claimed statement to her. The trial court erred in allowing this testimony. The prosecutor cannot call a witness to impeach another witness on a collateral matter. If there was a plan there *671was absolutely no evidence connecting defendant with the wife’s plan. People v Culver, 280 Mich 223, 226; 273 NW 455 (1937). See People v Lowe, 71 Mich App 340; 248 NW2d 263 (1976), People v Drew, 67 Mich App 295; 240 NW2d 776, lv den, 397 Mich 807 (1976). Cf. People v Sherman Hall, 77 Mich App 456; 258 NW2d 517 (1977).

For the following reasons I find that the error requires reversal:

The jury was cautioned that the testimony relating to the statement was only to function as impeachment testimony regarding the credibility of the wife, and not as substantive evidence. The statement, nevertheless, birthed a motive for the killing. It would require heroic effort for the jury to follow the trial court’s limiting instructions about impeachment rather than truthfulness of the testimony. I am not convinced no error occurred.

The record indicates that the prosecution was unable to present any evidence suggesting that the wife employed defendant to carry out her plan. This was not necessary, it would be implicit. I would hold that the prejudicial aspect of the collateral statement was not clearly ignored by the jury, and the defendant was very likely prejudiced. The motive was provided by the statement, and defendant was the only one charged with the crime. See People v Ellerhorst, 12 Mich App 661, 670-671; 163 NW2d 465 (1968), also McCormick, Evidence (2d ed), § 36, pp 70-72.

I would reverse for a new trial.