People v. Kilbourn

Brickley, J.

(concurring). I concur in the result reached by the majority. However, I cannot fully agree with the majority’s reasoning. I would find that People v Stanaway, 446 Mich 643; 521 NW2d 557 (1994), is not as technical as the majority suggests. Rather, I would apply Stanaway with more flexibility. Further, I would find that this case is factually distinguishable from Stanaway, and, therefore, a reversal is not required.

i

The majority finds that Stanaway only applies when

(1) the substance of the statement purportedly used to impeach the credibility of the witness is relevant to the central issue of the case, and (2) there is no other testimony from the witness for which his credibility was relevant to the case. [Ante at 683.]

*686The majority then finds that Mr. Kilboum1 provided sufficient testimony so as to avoid a violation of Stanaway. Ante at 683-684.

I feel that this is too formal a reading of Stanaway. That case was a response to an attempted manipulation of the hearsay mies. A witness, the defendant’s nephew, denied informing a police officer that the defendant had admitted involvement in the crime. Id. at 688-690. The prosecution then called the officer to testify that the nephew had previously told him that the defendant had made an incriminating statement. Id. at 690. The defense raised a hearsay objection, which the prosecution resisted by arguing that the officer was only called to impeach the nephew’s credibility with an inconsistent statement. Id. at 690-692.

The Court first noted that, other than the statement regarding the alleged admission, the nephew had not provided any relevant testimony. Id. at 692. Thus, the witness had failed to provide any testimony that made his credibility relevant. Id. at 693. Rather, “the prosecutor used the elicited denial as a means of introducing a highly prejudicial ‘admission’ that otherwise would have been inadmissible hearsay.” Id. at 693. Thus, on the basis of the subject matter of the witness’ testimony, the Court determined that the impeachment should not have been allowed. Id.

The majority does not adequately identify the testimony that brought Mr. Kilboum’s credibility into question. Mr. Kilboum was asked questions that were cumulative, concerned undisputed facts, or were not *687directly relevant to the main issue in the case.2 Further, Mr. Kilboum was unconscious for the majority of the night and had no firsthand knowledge about what occurred at the McNamara residence. Thus, the majority of his testimony did not bring his credibility into question.

However, Mr. Kilboum did testify that Officer Benden told him that one of his other sons, Craig Kilboum, had confessed to the crime. This testimony presented the possibility of another confession, and was relevant to the heart of the case. Further, it placed Mr. Kilboum’s credibility at issue, especially regarding the conversation he had with Officer Benden. Thus, the prosecution was allowed to respond to this testimony by recalling Officer Benden.

The majority disregards this point, and bases its finding on Mr. Kilboum’s testimony as a whole. However, as I state above, most of this testimony was cumulative. I would not allow the prosecution to avoid the rule in Stanaway by eliciting such testimony.

Further, I feel that the Court should recognize that the impeachment testimony in this case did not have the effect of a confession as did the testimony in Stanaway. The Stanaway Court was concerned that the officer’s testimony would be constmed as evidence of a confession. Id. at 695. This concern grew from the fact that the officer testified that the defend*688ant’s nephew told him that the defendant had admitted having a sexual encounter with a young girl. Id. In contrast, Officer Benden merely testified that Mr. Kilboum had told him that the defendant had fired the shots. There was no mention of any admission by the defendant to Mr. Kilboum. Therefore, even if taken as substantive evidence, Officer Benden’s testimony did not amount to evidence of a confession. Thus, this case does not involve the type of error found prejudicial in Stanaway. This fact further distinguishes this case from Stanaway.

I concur in the reversal of the decision of the Court of Appeals.

I will refer to the defendant’s father as Mr. Kilbourn.

While it is true that Mr. Kilboum did testify regarding whether he called the McNamaras, the prosecution had already elicited testimony from Mrs. McNamara on that issue. Thus, the prosecution either asked Mr. Kilboum a cumulative question or wished to provide Mr. Kilboum the opportunity to contradict the testimony of the McNamaras. Because the McNamaras’ testimony provided evidence of motive, it is unlikely that the prosecution wished to impeach that testimony.