People v. Jenkins

Riley, J.

(dissenting). At issue in this appeal is whether the trial court erred by permitting the impeachment of witness Pennington and by permitting the testimony of officer Gale. The majority concludes that it was proper to allow the impeachment, but that it was error to allow officer Gale’s testimony regarding Pennington’s prior statement because all written memoranda of oral statements are hearsay per se. Ante at 257-258.1 agree that it was proper to allow the impeachment, but I disagree that it was error to admit the testimony because Pennington’s prior statement, signed and adopted by Pennington when given to officer Gale, was used solely to impeach Pennington’s trial testimony and therefore was not hearsay. Pennington’s in-court testimony contradicted his earlier statement and, as a result, was unanticipated and injurious to the prosecution. Consequently, the prosecution could properly impeach him with his statement under the then-existing version of MRE 607(2)(C). Thus, I respectfully dissent.

*267I

The majority properly concluded that "[t]he trial judge did not err in allowing the prosecutor to impeach Pennington . . . Ante at 254. At the time of trial, a prosecutor could impeach his own witnesses if he was obliged to call them or their testimony was different from that anticipated.

The credibility of a witness may be attacked by
* * *
(2) the calling party if
(A) the calling party is the prosecutor and he is obliged to call the witness
(C) the witness’s testimony was contrary to that which the calling party had anticipated and was actually injurious to the calling party’s case. [MRE 607, as adopted January 5, 1978, effective March 1, 1978; 402 Mich cii (1978).]

In the present case, the prosecutor expected that Pennington would state he saw Jenkins just before the shooting in the same car that was used in the crime. Instead, Pennington testified that he did not see the car or Jenkins.

Q. So you’ve seen him in this gold Sunbird more than once?
A. Yeah.
Q. Did you see that gold Sunbird going past your house before you saw the shots—or heard the shots?
A. No.
Q. Did you see Mr. Jenkins in that gold Sunbird that day?
A. I don’t remember.
Q. You don’t remember?
A. No.

*268This testimony was contrary to Pennington’s original statement:

"At about 6 p.m., I’m sitting on the porch of 102 Leicester. A gold Sunbird rode past the house, and as soon as it got out of my eyesight, I heard the shooting. One of my friends came around there where I was at and told me that Steve had shot Demowens in the head. Steve is the one that drives the gold Sunbird.”

Because Pennington’s testimony at trial was completely unanticipated and injurious to the prosecution’s case, the prosecutor could impeach him under MRE 607(2X0.

Regardless of whether the prosecutor, at the time of trial, had a right to impeach Pennington, he would have a right in a new trial under the current version of MRE 607. Today, MRE 607 provides that "[t]he credibility of a witness may be attacked by any party, including the party calling the witness.” Consequently, if a new trial were to be ordered, the prosecution could freely impeach Pennington about this matter.1

It is my opinion that the trial court properly allowed Pennington to be impeached. His testi*269mony at trial was directly contrary to his prior statement and injured the prosecution’s case. As a result, the prosecutor had every right to use it for impeachment purposes. Moreover, MRE 607 has been changed to allow any party to impeach any witness at any time.

ii

The trial court did not commit error requiring reversal by allowing officer Gale to testify regarding Pennington’s earlier statement. As stated before, MRE 607(2)(C), at the time of trial, allowed the prosecutor to impeach Pennington since his testimony was unanticipated and injurious. The next question is whether officer Gale’s testimony regarding Pennington’s prior statement was proper.

Although Pennington’s prior statement constituted extrinsic evidence it was still admissible for purposes of impeachment under MRE 613(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 to interrogate the witness 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).

Here, Pennington was offered an opportunity to explain the difference between his prior and present statement.

Q. (By Ms. Neff): Sir, was your memory better back on February 20th, or today?
A. I don’t know. I probably was intoxicated on drugs on that day.
*270Q. Now, you were on drugs. Did you ever tell the sergeant that you were on drugs that day?
A. He never asked me.
Q. But you never thought it was important to tell him that?
A. No.
Q. You just gave him the statement and signed your name?
A. Right.
Q. And, now, today, you remember nothing?
A. Right.

Furthermore, Jenkins was also offered a chance to question Pennington about this discrepancy. Consequently, all the requirements for the admission of extrinsic evidence under MRE 613(b) were met.

The majority, however, argues that "a written memorandum of an oral statement is itself hearsay, allowing the impeaching witness to read from the written memorandum of the statement constitutes the admission of hearsay, unless a proper foundation is laid for admission as past recollection recorded.” Ante at 256. In order to support this statement, the majority looks to People v Rodgers, 388 Mich 513, 519; 201 NW2d 621 (1972). In Rodgers, this Court wrote:

The written memorandum was read to the jury. This constituted its admission in evidence. This was error. The writing was prepared by the Detective Taylor, out of court and was not signed by the witness King. The writing was hearsay. It was an extrajudicial statement (by Taylor) offered to prove the truth of the thing said (that King had spoken the words imputed to him).

The majority’s reliance on this case, however, is misplaced. In Rodgers, the witness did not sign his statement.

*271Q. Did Mr. King sign that statement?
A. No sir.
Q. And whose handwriting is that statement in?
A. This is my handwriting.
Q. Did you ask Mr. King to sign that statement?
A. Yes, sir, I did.
Q. And he refused?
A. Yes, sir. [Id. at 518.]

However, the officer who took the statement testified that he took it verbatim.

Q. . . . Did you take a written statement from Mr. King?
A. I wrote it down and Mr. King was talking.
Q. As Mr. King was talking to you, you wrote it down?
A. Yes, exactly word for word what he said. [Id. at 516.]

The fact that this statement was taken verbatim is crucial. As the United States Court of Appeals for the Second Circuit stated in United States v Almonte, 956 F2d 27, 29 (CA 2, 1992):

If a third party’s notes reflect only that note-taker’s summary characterization of a witness’s prior statement, then the notes are irrelevant as an impeaching prior inconsistent statement, and thus inadmissible.

In Rodgers, we do not have a summary characterization of a witness’ prior statement. Instead, we have a verbatim word-for-word copy of the witness’ statement; therefore, it is relevant and admissible to impeach if properly authenticated.

The manner in which to authenticate evidence is set out in MRE 901. Specifically, evidence can be authenticated by someone with knowledge.

*272(a) . . . The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) ... By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

In Rodgers, the officer on the stand had knowledge that the statement was authentic and he testified about that fact.

One could argue that the officer’s testimony was not sufficient to authenticate the document. However, preliminary questions regarding the admissibility of evidence are to be reserved to the trial judge.

Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the Rules of Evidence except those with respect to privileges. [MRE 104.]

Because the statement in Rodgers was authenticated, it could be used to properly impeach the witness’ testimony.2 Consequently, the Court al*273lowed its admission for impeachment purposes. Furthermore, because the statement was used to impeach and not to prove the truth of the matter asserted, hearsay was not an issue.3 Consequently, this Court was mistaken in concluding that the statement constituted hearsay and was improperly admitted. As a result, the majority’s reliance on this case is misplaced.

Extrinsic evidence of a prior inconsistent statement can be used to impeach but it cannot be used to prove the truth of the matter asserted, unless, of course, it falls within a hearsay exception.4 In this case, Pennington’s statement was only used for its proper purpose of impeachment. Although defendant claims that the prosecutor was actually offering this statement not to impeach, but to prove the truth of the matter asserted, the

law does not ask the judge, either at trial or upon appellate review, to crawl inside the prosecutor’s head to divine his or her true motivation. See 3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence ¶ 607[01], 607-20 (1993). [United States v Ince, 21 F3d 576, 580 (CA 4, 1994).][5]

*274Admitting Pennington’s statement in order to impeach but not to prove the truth of the matter asserted does not pose a problem under MRE 105. "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.” Here the trial judge instructed the jury:

Now, during the course of the trial, there’s been some evidence tending to show that some of the witnesses made earlier statements which were inconsistent with testimony made during the course of the trial.
These statements are not evidence which you can consider to satisfy or prove any of the elements of the crime charged, since the statements were not made under oath during the course of the trial. These statements or this evidence was permitted solely for the purpose of testing or judging the believability of the testimony which the witnesses did make under oath.

A proper example of how a prior inconsistent statement may be used to impeach the witness, in a situation remarkably similar to that at issue in this case, is given in Graham, Impeachment of witness—Prior inconsistent statements, 21 POF2d 101, 140-144. Specifically, Graham gives an illus*275tration of how to introduce extrinsic proof of a prior inconsistent statement.

§23. Introduction of extrinsic proof—Written statement
Q. Officer Jones, by whom are you employed?
A. The Greenville Police Department.
Q. Did you have occasion to speak at that time with John Black?
A. Yes, I did.
Q. What did he answer?
A. Mr. Black said that he was on the other side of the street about 40 feet away when the robber ran out of the store.
Q. While you were talking to John Black what, if anything, were you also doing?
A. While I was talking to Mr. Black, I was writing down his answers to my questions in statement form.
Q. What, if anything, did you do with the statement when it was completed?
A. I handed it to John Black and told him to read it over to be sure it was complete, accurate, and truthful. I told him to make any changes he desired, to initial any changes as well as initial each page. I also asked him to sign the statement at the bottom.
Q. Did John Black do so?
A. Yes, he did.
* * *
Q. Officer Jones, would you please read from the signed statement of John Black given on the day of the incident what he said concerning his location when he observed the robber? [Id. at 141-142 (emphasis added).]

This example offered by Graham closely parallels the manner in which officer Gale acquired and *276revealed Pennington’s prior statement.6 Officer Gale spoke to Pennington after the crime and wrote down his statement. He then showed this statement to Pennington, asked him to make any necessary changes, and to sign it. Pennington did so and even admitted at trial that he signed the statement.

Q. (By Ms. Neff): Sir, did you tell Sergeant Ronald Gale of the homicide section, on February 20th, 1989, at approximately 9:20 in the evening that:
"At 6:00 p.m., I was standing on the porch at 102 Leicester. A gold Sunbird rode past the house and as soon as it got out of my eyesight, I heard the shooting. Steve is the one that drives the gold Sunbird. I ran around there. By the time I got there, the police were already there.”
Then you were asked:
When you saw the gold Sunbird go past, did you see who was either driving or who was in the car?
And you answered:
"I saw the driver of the car and the passenger, but I didn’t see who was in the back seat.”
Now, did you or did you not tell Sergeant Gale that?
A. Yes, I did, and I told him there were several other cars that rode right behind this car.
Q. Did you say that on here, sir?
A. I told him that. I remember that much.
Q. Now, you signed this, right?
A. Right.

Because Pennington’s statement and its acquisi*277tion so closely parallels Graham’s example, it becomes easy to conclude that the statement was properly admitted.

hi

One portion of this statement has come under particular attack by the majority: where Pennington states, " 'One of my friends came around there where I was at and told me that Steve had shot Demowens in the head.’ ” The majority firmly contends that this constitutes hearsay. This contention, however, is erroneous. This portion of Pennington’s statement was relevant for impeachment purposes and as such could not constitute hearsay. Under MRE 401, 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. [Emphasis provided.]

The Court of Appeals in Grubaugh v St Johns, 82 Mich App 282, 286; 266 NW2d 791 (1978), addressed this very issue and found "[t]estimony is relevant if it has a legitimate tendency to establish or disprove a material fact.” At trial, Pennington indicated that he was not aware of Jenkins or this vehicle. In his prior statement, however, he stated that a friend told him Jenkins was involved. Consequently, that portion of his statement is directly relevant to impeach his testimony professing a lack of knowledge.

Furthermore, this portion of Pennington’s statement is not substantially more prejudicial than probative under MRE 403:

Although relevant, evidence may be excluded if *278its 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.

MRE 403 requires a balancing to be performed between the probative nature of the evidence and its prejudicial effect. Generally, substantial discretion is granted to the trial judge in performing this balancing test.

The trial judge, not the appellate judge, is iii the best position to assess the extent of the prejudice caused a party by a piece of evidence. The appellate judge works with a cold record, whereas the trial judge is there in the courtroom. [United States v Long, 574 F2d 761, 767 (CA 3, 1978).][7]

In this instance, Pennington’s statement is probative because it serves to impeach his in-court claim of a lack of knowledge and it is not prejudicial because another witness, Emanuel Pride, testified that Jenkins committed the crime.

Q. I want to direct your attention, now back to February 20th of 1989. Were you with Demowens Harris and Carlos Brunner on that day?
A. Yes.
Q. Did something happen to Mr. Harris?
A. Yes.
Q. What happened to Mr. Harris?
A. He was shot.
Q. Were you there when he was shot?
A. Yes.
Q. Did you see who shot him?
A. Yes.
Q. Is he in the courtroom?
*279A. Yes.
Q. Can you point him out for the jury, please? Pointing at Steven Jenkins?
A. Steven Jenkins.

Because Emanuel Pride testified that he saw Jenkins fire the gun, Pennington’s statement that a friend told him that Jenkins shot Demowens was merely redundant. Consequently, its admission could not have been prejudicial. When the balancing is done under MRE 403 the admission of the portion of Pennington’s statement was not substantially more prejudicial than probative. Moreover, even if it was error to admit this portion of the statement the error was harmless because what was disclosed had already been revealed by Emanuel Pride.

Given that Emanuel Pride testified unwaveringly that defendant gunned down the person standing next to him, any error in admitting Pennington’s prior inconsistent statement was harmless. Although the majority attempts to portray Pride’s testimony as inconsistent with that of another witness, Carlos Brunner, the truth is that their trial testimony was not inconsistent. Simply because Pride was able to testify with greater specificity about what occurred in those crucial seconds does not mean that his testimony was inconsistent with the more general testimony of Brunner.

IV

The trial court did not commit error requiring reversal by allowing Pennington to be impeached. His testimony at trial was unanticipated and injurious to the prosecution’s case. It is my belief that under the then-existing MRE 607(2)(C) as well as *280under the present version of MRE 607, impeachment was proper.

It is also my belief that officer Gale’s testimony was properly admitted. The prosecution used officer Gale to further impeach Pennington’s in-court testimony. Although officer Gale read part of Pennington’s statement, this statement could not be considered hearsay because it was not being offered for the truth of the matter asserted, but merely to impeach Pennington’s prior testimony.

I would affirm the Court of Appeals decision.

Boyle and Weaver, JJ., concurred with Riley, J.

This very issue was addressed in a dissent I wrote in People v Dunn, 446 Mich 409, 433; 521 NW2d 255 (1994).

Furthermore, a remand of this case is an empty gesture because recent amendments of MRE 410 permit the evidence at issue to be presented at trial. MRE 410 now.bars statements made during plea negotiations only if the statements are made to attorneys. In the instant case, the officers in question were obviously not attorneys, and they disavowed any pretense of possessing the authority of a government attorney. The evidence at issue, therefore, is admissible on remand. United States v Bernal, 719 F2d 1475, 1478 (CA 9, 1983); Rachlin [v United States, 723 F2d 1373, 1376 (CA 8, 1983)]. Hence, the granting of a new trial is simply "an empty gesture.” People v Sanford, 402 Mich 460, 498; 265 NW2d 1 (1978) (Ryan, J., concurring).

This use of properly authenticated prior written statements for impeachment is not uncommon. In People v Taylor, 159 Mich App 468, 474-475, n 8; 406 NW2d 859 (1987), the prosecution used a prior letter written and signed by the defendant to impeach his testimony. The Court found that the letter was properly authenticated under MRE 901 even though the defendant would not admit writing it.

While defendant would not admit writing the letter, he also said that he would not deny writing it. He acknowledged that the letter was in his handwriting and that it bore his signature. *273He then went on to explain the letter by saying that it was written because he "wanted to get out of it.” That constitutes "evidence sufficient to support a finding” of authenticity under MRE 901(a).

" 'Hearsay’ is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801 (emphasis added). The majority conveniently omits acknowledging that an out-of-court statement is only hearsay if offered "to prove the truth of the matter asserted.” If the statement is not offered for its truth, the statement cannot be hearsay.

Hileman v Indreica, 385 Mich 1; 187 NW2d 411 (1971).

MRE 613(b) and FRE 613(b) are essentially identical.

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 *274is afforded an opportunity to interrogate the witness 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). [MRE 613(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 to interrogate the witness 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). [FRE 613(b).]

Incredibly, the majority questions why this example "does not indicate what exception to the hearsay rule is being invoked” and goes on to conclude that Graham must be applying the recorded recollection exception found in MRE 803(5). Ante at 257, n 20. Rather than requiring a hearsay exception to admit the prior inconsistent statement, however, Graham understands that the statement is being offered to impeach and not for the truth of the statement. Therefore, the statement is not hearsay and no exception is necessary.

Although Long is a federal case, FRE 403, which deals with the prejudicial effect of evidence, is identical to MRE 403.