People v. Gunne

237 N.W.2d 256, 65 Mich. App. 216, 1975 Mich. App. LEXIS 954

• Court: Michigan Court of Appeals
• Decided: October 27, 1975
• Docket: Docket 19135
• Status: Published

Opinions

T. M. Burns, P. J.

On January 2, 1974, defendant Dr. Hugh R. Gunne,¹ was convicted by a jury of conspiracy to commit first-degree murder² and assault with intent to commit murder.³ On January 16, 1974, defendant was sentenced to life imprisonment on the charge of conspiracy to commit murder and 25 to 50 years imprisonment on the charge of assault with intent to kill and murder. On that same date the trial court denied defendant’s motion for a new trial. This appeal followed.

The chief witness for the prosecution was Barbara Kimmel, the alleged victim of the charged crimes. After the jury had been excused, defense counsel sought to question Mrs. Kimmel about an outstanding capias warrant against her for failure to appear at a trial relating to a charge lodged against her in Washtenaw County. The trial court sustained the prosecutor’s objection on the ground that the question was an inquiry into a charge rather than a conviction and was thus impermissible.

Defendant’s attorney also questioned Mrs. Kimmel regarding certain criminal convictions. She admitted two convictions concerning occupying a hotel room with a male other than her husband but denied the existence of a third conviction concerning loitering at a place of illegal business. When defense counsel attempted to introduce extrinsic evidence of the loitering conviction, the trial court sustained the prosecutor’s objection on the ground that the 1968 conviction was had without benefit of counsel. There was also some discussion as to whether a conviction for violating an ordinance as opposed to a statute is a crime.

The defense called Barbara Bowman, a nurse who worked for the defendant, as an alibi witness. On cross-examination, the prosecutor attempted to introduce a tape recorded telephone conversation between the witness and a third party to show similar or prior acts in an effort to establish the motive of the defendant.⁴ After the trial court held that the tape could not be admitted for such purpose, the prosecutor offered to introduce the tape as a prior inconsistent statement of the witness Bowman contradicting her testimony on direct examination. It soon became apparent that the witness would exercise her Fifth Amendment privilege in response to any foundational questions necessary for the admission of the tape recording. Defense counsel then moved to strike the testimony of Bowman since cross-examination would not be available. The trial court denied the motion. When the prosecutor conceded that the foundation question might be incriminating, the trial court ruled that the introduction of the tape was permissible without the necessity of laying a foundation.

There are several assignments of error. We have considered them all. Although we specifically speak to only one issue, the others have not been disregarded. Rather we consider them to have raised issues of insufficient substance to merit decisional discussion. As to each we have found no deviation from sound and accepted trial procedure or established case law. The singular issue which we consider to be decisional, and indeed to mandate reversal, is whether the trial court erred reversibly when it admitted the tape recording of a prior inconsistent statement made by defense witness Barbara Bowman in order to impeach her direct testimony.

Defendant contends that the tape recording was inadmissible because the prosecutor had not laid the requisite foundation for impeachment of a witness by a prior inconsistent statement. As mentioned earlier, after the prosecutor admitted that the proposed foundation questions could be incriminating, the trial court held that the tape could be admitted without any foundation testimony. This was reversible error.

It has long been held in Michigan that in order to impeach a witness by showing a prior inconsistent statement of that witness a foundation must be laid by asking the witness preliminary questions. People v George Jones, 48 Mich App 102; 210 NW2d 145 (1973), Ebel v Saginaw County Board of Road Commissioners, 386 Mich 598, 608; 194 NW2d 365, 369 (1972), Scholnick v Bloomfield Hills, 350 Mich 187, 195; 86 NW2d 324, 328 (1957), Rodgers v Blandon, 294 Mich 699; 294 NW 71 (1940). This foundation requirement has been strictly enforced. See People v Jones, supra, concurring opinion of Judge Gillis at 111, Ebel v Saginaw Road Commissioners, supra, Rodgers v Blandon, supra. No foundation was laid for the impeachment of Barbara Bowman by proof of prior inconsistent statements, and therefore, the admission of the tape recording into the record as an attack on Bowman’s credibility was erroneous. People v Jones, supra, Ebel v Saginaw Road Commissioners, supra, 98 CJS, Witnesses, §480, pp 362-364. Since Barbara Bowman was the only person to corroborate a good deal of defendant’s own testimony, her testimony had an obviously important bearing on the defense and, therefore, we cannot say that the admission of the tape into evidence was harmless error beyond a reasonable doubt. People v Jones, supra, People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972). We hold that where, as here, a witness has exercised her Fifth Amendment privilege against self-incrimination in response to foundational questions put by the prosecutor, it is impossible to lay a foundation properly and therefore prior inconsistent statements cannot be shown. Cf. Ebel v Saginaw Road Commissioners, supra.

Reversed and remanded for a new trial.

Quinn, J., concurred.

1 Defendant was tried jointly with Stanley Kulczyski. Another alleged co-conspirator was not tried since his whereabouts were unknown.

2 MCLA 750.157a; MSA 28.354(1).

3 MCLA 750.83; MSA 28.278.

4 We note that the tape recording in question was made with the consent of the third party who subsequently turned the tapes over to the Dearborn Police Department. No warrant was ever issued for their making.