People v. Whalen

342 N.W.2d 917, 129 Mich. App. 732

• Court: Michigan Court of Appeals
• Decided: October 24, 1983
• Docket: Docket 53718
• Status: Published

Opinions

J. M. Graves, Jr., J.

Defendant, Michael Barry Whalen, appeals as of right his conviction of second-degree murder, MCL 750.317; MSA 28.549, alleging numerous errors for our consideration. Defendant was tried before a jury in a joint trial with codefendant Patrick McDonald. McDonald, who had been charged with manslaughter, had waived his right to a jury trial and was acquitted by the trial judge. The first issue raised by defendant concerns the admission at trial of the preliminary examination testimony given by Patricia (Moyer) Whalen. The preliminary examination was held on July 5, 1979, and the trial commenced on August 21, 1979. Patricia Moyer, a res gestae witness to the homicide, married the defendant on July 31, 1979. At the trial the defendant asserted that the marital privilege, MCL 600.2162; MSA 27A.2162, precluded his wife from being called as a witness. When the prosecutor then offered the preliminary examination testimony of Patricia Moyer, the defendant objected on the ground that the testimony consisted of impeachment by the prosecution of its own non-res gestae witness. The trial court overruled this objection and admitted the preliminary examination testimony into evidence.

Defendant first argues that none of the preliminary examination testimony should have been admitted because the defendant did not consent to having his wife testify against him. MCL 600.2162; MSA 27A.2162 embodies the marital privilege. The relevant portion of that statute reads, "[a] husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent”. The spousal privilege in Michigan, like the modern common-law privilege, is narrow in its justification and ought to be correspondingly narrowly construed in its scope. People v Wadkins, 101 Mich App 272, 283; 300 NW2d 542 (1980). We hold that the testimony of a spouse, given at a preliminary examination at a time when the spouse was not married to the defendant, is admissible at the trial when the defendant asserts the marital privilege. Such preliminary examination testimony is clearly admissible pursuant to either MCL 768.26; MSA 28.1049, or MRE 804(a)(1), 804(b)(1). MCL 768.26; MSA 28.1049 reads:

"Testimony taken at an examination, preliminary hearing, or at a former trial of the case, or taken by deposition at the instance of the defendant, may be used by the prosecution whenever the witness giving such testimony can not, for any reason, be produced at the trial, or whenever the witness has, since giving such testimony become insane or otherwise mentally incapacitated to testify.”

A witness may actually attend the trial and yet still be "unavailable” as that term is implied in MCL 768.26; MSA 28.1049. See People v Burgess, 96 Mich App 390, 401; 292 NW2d 209 (1980). MRE 804(a)(1) states:

"(a) Definition of unavailability. 'Unavailability as a witness’ includes situations in which the declarant—

"(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement * * *.”

MRE 804(b)(1) provides:

"(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

"(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.”

If the marital privilege is asserted at trial, the defendant’s spouse is "unavailable” as a witness within the meaning of both the aforementioned statute and rules of evidence. Consequently, if the spouse testified at the preliminary examination at a time when the spouse was not married to the defendant, or, alternatively, if the spouse testified at the preliminary examination while married to the defendant and the marital privilege was not properly asserted, the preliminary examination testimony is admissible at trial when the marital privilege is asserted by the defendant. Such a holding is consistent with decisions rendered by courts of several of our sister states. See Wells v Commonwealth, 562 SW2d 622, 624 (Ky, 1978); Simms v State, 492 P2d 516, 520-521 (Wy, 1972); State v Woods, 130 Kan 492, 493; 287 P 248 (1930).

Defendant presents further argument concerning the admission at the trial of a certain portion of the preliminary examination testimony of Mrs. Whalen. During direct examination at the preliminary hearing, the witness testified that she had not previously discussed with the defendant anything about the incident in question. Following this response, the prosecutor showed the witness two pieces of paper marked "Witness. Statement”. He then asked her to read from that document a particular question and answer. The witness refused to read it and stated that she knew what it said. The prosecutor proceeded and asked her if she knew Sergeant Dwyer. The witness responded affirmatively and admitted making a statement to him at the police station. She further admitted that the "Witness Statement” was an accurate recording of her discussion with Sergeant Dwyer. Mrs. Whalen stated that the signature thereon was hers, but that not all of the statements she made at that time were true. The testimony continued:

"Q. Now, specifically, do you recall me having you read a specific question and answer from the statement?

"A Uh-huh.

”Q. Do you recall giving — being asked this question and giving this answer?

"First of all, let me read the question. 'Question: Is there anything else you can tell me about the fight?

" 'Answer: Yes. When Mike Whalen first came out to the car, he told me, "Yeah, I stabbed the guy,” just like that. Also, on the way home Mike said that when he was leaving the restaurant there was a guy that had a hold of Louie Fenazzio. Mike confronted the guy and he said he was a police officer and told Mike to stay there, and put a gun to Mike’s chest. Mike said, "Show me some ID,” and the guy did and Mike threw it out into Eight Mile and said, "You’re going to have to kill me and you’ll get killed too.” Then someone hit the police officer and Mike came out to the car.

" 'As we were leaving, Frank and Louie were coming out and Mike asked them if the guy was alive or dead. They said they didn’t know, and that’s all I know. I really didn’t see the fight.’

"Do you recall being asked that question and did you give that answer?

"A. Okay. One thing—

"Q. First of all, answer that and then we’ll proceed from there.

"Do you recall being asked that question and giving that answer?

"A. The only — they—

"Q. Will you just answer the question?

"A. Sgt. Dwyer told me everything.

"The Court: Ma’am, we have our little particular procedures and he is going to give you an opportunity to answer more fully, but first, we have to ask you the questions in a certain order because we have rules of evidence.

"The Witness: Say it again.

”Q. (By Mr. Janice, continuing): Do you recall being asked that question and giving that answer?

"The question and answer which I have just read to you, ma’am, do you recall being asked that question and giving that answer? Just answer that yes or no.

"A No.”

Defendant argues that the aforementioned impeachment testimony, originally presented at the preliminary examination, was improperly admitted at trial. We agree that the admission of the impeachment testimony at trial was improper and violated MRE 607. Generally, the calling party may not impeach his own witness. MRE 607; People v White, 401 Mich 482, 508; 257 NW2d 912 (1977). However, MRE 607(2)(A) provides that the calling party may impeach the credibility of a witness "if (A) the calling party is the prosecutor and he is obliged to call the witness”. MRE 607(2)(C) provides that the calling party may impeach the credibility of a witness if "the witness’s testimony was contrary to that which the calling party had anticipated and was actually injurious to the calling party’s case”.

In the case at bar, the impeachment testimony was not admissible within the scope of MRE 607(2)(A). The only witnesses that the prosecutor is required to call are res gestae witnesses. MCL 767.40; MSA 28.980; People v Brooks, 96 Mich App 96, 98; 292 NW2d 139 (1980). There is no question that Mrs. Whalen was a res gestae witness as that term is defined in People v Hadley, 67 Mich App 688, 690; 242 NW2d 32 (1976). She was present with defendant at the scene of the crime at the time of the alleged homicide and drove away with defendant from the crime scene. Nevertheless, even though Mrs. Whalen was a res gestae witness, the prosecutor was not obliged to call her at trial because at the time of the trial Mrs. Whalen was the defendant’s wife. In People v Raider, 256 Mich 131, 135; 239 NW 387 (1931), the Court, in discussing exceptions to the prosecutor’s duty to endorse and call res gestae witnesses, stated that the wife of an accused need not be endorsed on the information nor be called by the prosecution if her name is endorsed on the information. As the prosecutor was not obliged to call Mrs. Whalen, he was not entitled to impeach her credibility pursuant to MRE 607(2)(A). As the Court noted in People v Fidel, 37 Mich App 338, 342-343; 194 NW2d 732 (1971):

"We hold here that the right of the prosecution to impeach its own witness is derivative of, and co-extensive with, the obligation to call that witness. Absent the obligation, a witness thus called becomes the people’s witness and subject to the settled rules concerning the examination of any witness voluntarily called by either party.”

The impeachment testimony was not admissible within the scope of MRE 607(2)(C). To fall within the ambit of this second exception, the prosecutor must be surprised by the testimony given, and that testimony must be actually injurious to the prosecutor’s case. People v Hawkins, 114 Mich App 714, 724-726; 319 NW2d 644 (1982). In order to be "surprised” at the witness’s testimony, the prosecutor must have been unable to reasonably anticipate the proffered testimony. People v Coyle, 104 Mich App 636, 643; 305 NW2d 275 (1981). In the instant case, the prosecutor obviously anticipated the testimony of Mrs. Whalen offered at the trial through use of the preliminary examination transcript because the prosecutor had already heard the identical testimony at the preliminary examination hearing. Further, Mrs. Whalen’s testimony was not actually injurious to the prosecutor’s case. The focus of the rule "is whether what was said, not what was not said, injured the calling party’s case. * * * Where the witness’s testimony is neutral, however, although it disappoints the calling party’s expectations, it does not aid his opponent and thus it is not actually injurious.” Coyle, supra, p 643. Prior to her impeachment at the preliminary examination, Mrs. Whalen testified that she had not previously discussed with the defendant anything about the incident in question. Thus, her testimony was neutral and perhaps disappointing to the prosecutor, but it was not actually injurious to the prosecutor’s case.

The impeachment testimony was improperly admitted at trial. In a fact situation moderately analogous to the instant case, the Michigan Supreme Court stated in People v White, 401 Mich 482, 509-510; 257 NW2d 912 (1977):

"We do not approve of the practice of the people in a criminal case calling a witness they are under no duty to call, and who they have reason to know will deny all knowledge of the event and thereby add nothing of substance to the people’s case, for the sole purpose of placing before the jury highly damaging evidence that the jury must be instructed may be considered only for impeachment purposes. Cf. People v Giacalone, 399 Mich 642; 250 NW2d 492 (1977). We seriously doubt the effectiveness of the limiting instruction in such a case. Cf. Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968).”

The admission of the impeachment testimony was prejudicial error and mandates reversal. We apply the test articulated in People v Christensen, 64 Mich App 23, 33; 235 NW2d 50 (1975):

"In order to hold that the error in this case does not require reversal, however, we must also be able to say that it was 'harmless beyond a reasonable doubt’. If it is reasonably possible that in a trial free of the errors complained of, even one juror might have voted to acquit the defendant, then the error was not harmless and the defendant must be retried. If, on the other hand, the proof was so overwhelming, aside from the taint of error, that all reasonable jurors would find guilt beyond a reasonable doubt, then the conviction must stand.”

See also People v Robinson, 386 Mich 551, 563-564; 194 NW2d 709 (1972), and People v Thompson, 111 Mich App 324, 329; 314 NW2d 606 (1981). In the case at bar, the evidence of defendant’s guilt was not overwhelming. Of the 31 witnesses who testified for the prosecution, only 4 were able to state with varying degrees of certainty that defendant struck or lunged at the deceased while the deceased engaged in a fight with a third party, codefendant McDonald. Although the deceased died from a stab wound, no witness testified that defendant committed the stabbing. Indeed, none of the witnesses saw defendant with a knife in his hand at any time during the fatal altercation. The impeachment testimony contained alleged admissions by defendant that he had stabbed the deceased. We find it reasonably possible that at least one juror might have voted to acquit the defendant had the impeachment testimony been excluded.

Defendant alleges that he was denied effective assistance of counsel. The standard to determine whether a defendant had effective assistance of counsel in a criminal trial is (1) whether defense counsel performed at least as well as a lawyer with ordinary training and skill in the criminal law and conscientiously protected his client’s interests, undeflected by conflicting considerations, and (2) whether defense counsel made a serious mistake but for which the defendant would have had a reasonably likely chance of acquittal. People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977); People v Davis, 123 Mich App 553, 561-562; 332 NW2d 606 (1983). We find that defendant received effective assistance of counsel according to the aforementioned standards. The record does not disclose the specific relationship between defendant, codefendant Patrick McDonald, and Jay Arvey, who was arrested at the scene of the crime with a bloody knife in his pocket but was not charged with the death of the deceased. If defense counsel had attempted to blame either McDonald or Arvey with the stabbing, it was possible that McDonald or Arvey, or both of them, would have retaliated by accusing defendant of committing the stabbing. Thus, defense counsel’s decision not to blame McDonald or Arvey for the homicide was an appropriate trial strategy. This Court is reluctant to substitute its judgment for that of trial counsel in matters of trial strategy. People v Lotter, 103 Mich App 386, 390; 302 NW2d 879 (1981).

We also reject defendant’s argument that there was insufficient evidence for a rational trier of fact to find the essential elements of second-degree murder proven beyond a reasonable doubt. In viewing the evidence presented by the prosecutor in a light most favorable to the prosecution, a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 ; 285 NW2d 284 (1979). The record discloses credible evidence that the defendant was involved in the second fight and lunged toward the deceased shortly before the deceased fell to the floor with a stab wound in his chest.

After reviewing all of the evidence presented at trial, including that presented by the defense, we also reject defendant’s contention that the trial court erred in denying the defense motion for a directed verdict at the close of proofs. People v Thompson, 114 Mich App 302, 307; 319 NW2d 568 (1982). Finally, we find no merit in defendant’s argument that the trial court erred in denying defendant’s motion for a new trial. The verdict was not against the great weight of the evidence. Determinations of weight and credibility were made by the jury which heard the testimony and observed the witnesses, and an appellate court will not substitute its judgment for that of the jury. People v Atkins, 397 Mich 163, 172; 243 NW2d 292 (1976). The trial court did not abuse its discretion in denying defendant’s motion for a new trial. People v Nichols, 69 Mich App 357, 362; 244 NW2d 335 (1976).

Defendant’s remaining allegations of error having been rendered moot, we do not consider them. White, supra, p 513.

Reversed and remanded for a new trial.

M. J. Kelly, J., concurred.