People v. Kilbourn

563 N.W.2d 669, 454 Mich. 677
CourtMichigan Supreme Court
DecidedJune 17, 1997
Docket106190, Calendar No. 15
StatusPublished
Cited by32 cases

This text of 563 N.W.2d 669 (People v. Kilbourn) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Kilbourn, 563 N.W.2d 669, 454 Mich. 677 (Mich. 1997).

Opinions

Weaver, J.

In this case we consider whether a witness’ prior inconsistent statements, which implicated the defendant, are admissible for impeachment purposes. The Court of Appeals found that the prior inconsistent statements were inadmissible hearsay that could not be used for the purpose of impeachment, reversed defendant’s convictions and remanded the case for a new trial. We reverse the judgment of the Court of Appeals, and remand with instructions.

i

After a jury trial in the Eaton Circuit Court, Robert Kilboum, the defendant, was convicted of two counts of assault with intent to do great bodily harm less than murder.1 The events giving rise to the charges related to the firing of a firearm into the home of Pamela and Gary McNamara. Testimony at trial established that on the evening of August 18, 1991, at approximately 8 o’clock, Mr. and Mrs. McNamara were walking outside their home when they heard [679]*679loud noises coming from the direction of the Kilboum residence. According to Pamela McNamara’s testimony at trial, she and her husband saw several people at the Kilboum residence that appeared to be fighting. Mrs. McNamara immediately called the Eaton County Sheriff’s Department. Two deputy sheriffs responded to the call. No arrests were made. Mrs. McNamara testified that soon thereafter she received a threatening phone call from Robert Kilbourri, Sr.

Pamela McNamara further testified that on that same evening, at approximately 11 o’clock, she and her husband were awakened by a loud crashing noise in their kitchen. As Mr. McNamara got up from bed to investigate the noise, a gun went off, and a bullet passed directly over his head. Both Mr. and Mrs. McNamara retreated to the floor for safety. They heard an additional four to five shots being fired near or at their home.

Shortly thereafter, Deputy Michael Schnepp and Deputy Leland Taylor arrived at the McNamara residence in response to a “911” call from Mr. McNamara. At trial, Deputy Schnepp testified that when he arrived at the McNamara residence, he found both Mr. and Mrs. McNamara in their home, visibly terrified. After investigating the McNamara home, Deputy Schnepp discovered a broken axe handle just outside the broken kitchen window. He also observed several bullet holes in the McNamara home. Both Mrs. McNamara and Detective Leonard Benden testified that a trail of damage revealed that the miscreants had withdrawn from the McNamara residence in the direction of the Kilboum residence.

[680]*680n

Robert Kilboum, Sr., the defendant’s father, was called as a witness in the State’s case in chief. Mr. Kilboum testified that on the day of the incident, he and his three sons — including the defendant — defendant’s girlfriend and friend, were at his trailer drinking, talking, and partying. According to Mr. Kilboum, he and his guests drank approximately three fifths and half a gallon of whiskey that evening. After police finished their inquiry into the report of domestic violence and noise at the Kilboum residence, Mr. Kilboum testified that he called the McNamaras simply to ask them to first call him before calling the police. He testified that Pamela McNamara became irate with him on the telephone, and that he did not threaten her in any way. Mr. Kilboum could not remember if he had discussed the phone call with any of his sons.

During the prosecutor’s direct examination of Mr. Kilboum, the following exchange regarding prior conversations between Mr. Kilboum, Sr., and Detective Bender occurred:

Q. [In] [o]ne of those conversations did you indicate to Detective Benden that Robert Wesley Kilboum [defendant] was responsible for the shooting?
A. No, I don’t.
Q. You don’t recall that?
A. No. I recall telling Detective Benden that Robert would turn himself in. That’s when Detective Benden told me that Craig had already called and admitted doing the shooting.

Later in the state’s case in chief, on redirect examination, the following exchange between the prosecutor and Detective Benden occurred:

[681]*681Q. Sir, did you have a discussion with Robert Kilboum, Sr. on the telephone when you were trying to get everyone together to talk to them?
A. I had quite a few conversations with Mr. Kilboum on the phone.
Q. Directing your attention [to] the 26th of August 1991, did you receive a phone call from him?
A. Yes.
Q. On that date did he [Robert Kilboum, Sr.] indicate who was responsible for the shooting?
A. Yes.
Q. What did he state?
A. That little Bob [defendant] was the one who shot into the house.

Defendant objected to this questioning on the basis that the officer’s testimony regarding statements purportedly made by Mr. Kilboum was inadmissible hearsay. The trial judge overruled the objection, holding that it was admissible for impeachment purposes to contradict Mr. Kilboum, Sr.’s, previous in-court denial of making the statement. The trial judge instmcted the jury that the testimony of Detective Benden regarding Mr. Kilboum, Sr.’s, prior inconsistent statement could only be used to evaluate the credibility of Mr. Kilboum, Sr., and not to decide defendant’s guilt or innocence.

A jury found defendant guilty of two counts of assault with intent to do great bodily harm less than murder. The trial court judge sentenced defendant to 60 to 120 months in prison. The Court of Appeals reversed defendant’s convictions and remanded the case for a new trial. We granted leave to appeal, lim[682]*682ited to the issue of admissibility of the prior inconsistent statement.

in

In reversing defendant’s conviction, the Court of Appeals held that the testimony by Detective Benden regarding out-of-court statements purportedly made by Robert Kilboum, Sr., which implicated defendant as the person who had shot into the victims’ house, was inadmissible. The Court of Appeals held that the statements were hearsay and “did not become admissible for impeachment purposes merely because the prosecutor had previously elicited a denial of the purported statements] by Robert Kilboum, Sr.” Unpublished memorandum opinion, issued September 22, 1995 (Docket No. 155397). In support of this, the Court of Appeals relied on People v Stanaway, 446 Mich 643; 521 NW2d 557 (1994). However, it apparently misread the rale set forth by this Court.

Under the current provision of MRE 607 the government can impeach its own witness. The general rule is that evidence of a prior inconsistent statement of the witness may be admitted to impeach a witness even though the statement tends directly to inculpate the defendant. United States v Miller, 664 F2d 94 (CA 5, 1981). People v Stanaway provided an exception to this mle: A prosecutor cannot use a statement that directly tends to inculpate the defendant under the guise of impeachment when there is no other testimony from the witness for which his credibility is relevant to the case.

In People v Stanaway,

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Bluebook (online)
563 N.W.2d 669, 454 Mich. 677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kilbourn-mich-1997.