People v. Kilbourn , 454 Mich. 677 ( 1997 )

563 N.W.2d 669 (1997) 454 Mich. 677

PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Robert Wesley KILBOURN, Defendant-Appellee.

Docket No. 106190, Calendar No. 15.

Supreme Court of Michigan.

Argued March 6, 1997. Decided June 17, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Jeffrey L. Sauter, Prosecuting Attorney, and William M. Worden, Sr. Assistant Prosecuting Attorney, Charlotte, for People.

James Bonfiglio, Okemos, for Defendant-Appellee.

Opinion

WEAVER, Justice.

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 Kilbourn, 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 loud noises coming from the direction of the Kilbourn residence. According to Pamela McNamara's testimony at trial, she and her husband saw several people at the Kilbourn 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 Kilbourn, 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 Kilbourn residence.

II

Robert Kilbourn, Sr., the defendant's father, was called as a witness in the State's case in chief. Mr. Kilbourn 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. Kilbourn, 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 Kilbourn residence, Mr. Kilbourn 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. Kilbourn could not remember if he had discussed the phone call with any of his sons.

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

Q. [In][o]ne of those conversations did you indicate to Detective Benden that Robert Wesley Kilbourn [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:

Q. Sir, did you have a discussion with Robert Kilbourn, 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. Kilbourn 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 Kilbourn, 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. Kilbourn was inadmissible hearsay. The trial judge overruled the objection, holding that it was admissible for impeachment purposes to contradict Mr. Kilbourn, Sr.'s, previous in-court denial of making the statement. The trial judge instructed the jury that the testimony of Detective Benden regarding Mr. Kilbourn, Sr.'s, prior inconsistent statement could only be used to evaluate the credibility of Mr. Kilbourn, 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, limited to the issue of admissibility of the prior inconsistent statement.

III

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 Kilbourn, 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 statement[s] by Robert Kilbourn, 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 N.W.2d 557 (1994). However, it apparently misread the rule 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 F.2d 94 (C.A.5, 1981). People v. Stanaway provided an exception to this rule: 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, the defendant was charged with three counts of third-degree criminal sexual conduct, M.C.L. § 750.520d(1)(a); M.S.A. §28.788(4)(1)(a), involving sexual intercourse with the complainant when she was fourteen years old. During the prosecution's case in chief, Stanaway's nephew was called to testify. When asked by the prosecutor if he had made a statement to Officer Peters regarding an incriminating statement Stanaway had made to the witness, the witness denied ever having made such a statement. The prosecution then called Officer Peters to the stand. The officer testified, over hearsay objections, that the nephew told the officer that Stanaway had said he had had sexual relations with a young girl and would be in a lot of trouble if caught. This Court held that the prior inconsistent statements could not be used to impeach credibility under MRE 613. The reasoning behind this is that the witness had no direct knowledge of any of the alleged incidents and was out of town at the time the incident would have occurred.

The rule set forth in People v. Stanaway is that the impeachment should be disallowed 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.

This is a very narrow rule and does not apply in the instant case. Although the substance of the statements used to impeach the credibility of the witness were indeed relevant to a central issue of the case, the second prong of the test was not met because there was other relevant testimony from the witness for which his credibility was relevant. Robert Kilbourn, Sr., testified about a number of events that took place before the shooting, and indeed was a key actor in some of these events.

The facts here are distinguishable from the situation in United States v. Ince, 21 F.3d 576 (C.A.4, 1994).^[2] In United States v. Ince, the court held that the probative value of the contradicting witness' testimony for impeachment value was "nil." The court noted in Ince that the witness' in-court testimony did not affirmatively damage the government's case, and the prosecution had no need to attack her credibility. Id. at 581.

Here, there was at least one direct conflict between Mr. Kilbourn's testimony at trial and that of another witness. Mr. Kilbourn testified that when he phoned Mrs. McNamara he only asked the McNamaras to contact him before calling the police, and that he made no threats. Mrs. McNamara, on the other hand, testified that Mr. Kilbourn had made a threatening phone call to her. We find that the officer's testimony was admissible, because it could properly be used to impeach the credibility of Mr. Kilbourn.

IV

Defendant also alleges that the testimony of Officer Benden was inadmissible because the testimony was designed to impeach Robert Kilbourn, Sr., on a collateral matter. The record shows that no objection was made at trial on the grounds now asserted on appeal.^[3] It is well established that objections to admissibility not properly raised at trial cannot be later asserted on appeal. Marietta v. Cliffs Ridge, Inc., 385 Mich. 364, 374, 189 N.W.2d 208 (1971).

V

We reverse the Court of Appeals opinion vacating defendant's conviction. We remand this case to the Court of Appeals for consideration of those issues that defendant had raised and the Court of Appeals did not address.

MALLETT, C.J., and BOYLE and RILEY, JJ., concurred with WEAVER, J.

BRICKLEY, Justice (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 N.W.2d 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. [Op. at 672.]

The majority then finds that Mr. Kilbourn^[1] provided sufficient testimony so as to avoid a violation of Stanaway. Op. at 672.

I feel that this is too formal a reading of Stanaway. That case was a response to an attempted manipulation of the hearsay rules. A witness, the defendant's nephew, denied informing a police officer that the defendant had admitted involvement in the crime. Id. at 688-690, 521 N.W.2d 557. 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, 521 N.W.2d 557. 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, 521 N.W.2d 557.

The Court first noted that, other than the statement regarding the alleged admission, the nephew had not provided any relevant testimony. Id. at 692, 521 N.W.2d 557. Thus, the witness had failed to provide any testimony that made his credibility relevant. Id. at 693, 521 N.W.2d 557. 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, 521 N.W.2d 557. 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. Kilbourn's credibility into question. Mr. Kilbourn was asked questions that were cumulative, concerned undisputed facts, or were not directly relevant to the main issue in the case.^[2] Further, Mr. Kilbourn 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. Kilbourn did testify that Officer Benden told him that one of his other sons, Craig Kilbourn, 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. Kilbourn'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. Kilbourn'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 construed as evidence of a confession. Id. at 695, 521 N.W.2d 557. This concern grew from the fact that the officer testified that the defendant'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. Kilbourn had told him that the defendant had fired the shots. There was no mention of any admission by the defendant to Mr. Kilbourn. 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.

MICHAEL F. CAVANAGH, Justice (dissenting).

The majority states that it will not consider defendant's assertion that the testimony of Officer Benden was inadmissible because it was designed to impeach the witness on a collateral matter because "[t]he record shows no objection was made at trial on the grounds now asserted on appeal." Op. at 672. Because the majority's refusal to consider defendant's argument is contrary to prior Michigan Supreme Court cases as well as federal law, I respectfully dissent.

First, People v. Stanaway, 446 Mich. 643, 693, 521 N.W.2d 557 (1994), stated that "a prosecutor may not use an elicited denial as a springboard for introducing substantive evidence under the guise of rebutting the denial. People v. Bennett, 393 Mich. 445, 224 N.W.2d 840 (1975)." Therefore, Stanaway itself relied on the collateral-matter rule asserted in Bennett. As stated several times in Stanaway, the only objection to the impeachment testimony was on hearsay grounds. The Court stated:

While the prosecutor could have presented defendant's alleged admission by way of the nephew's statement, he could not have delivered it by way of the officer's testimony because the statement would be impermissible hearsay. [Id. at 693, 521 N.W.2d 557 (emphasis added).]

Second, in Bennett, supra, the exact position relied on by the majority was specifically rejected by the Bennett majority. The dissent in Bennett tried to make the same assertion the majority now makes when it stated that "[d]efense counsel objected to the rebuttal testimony in question, but only in general terms. He did not raise the [collateral] rationale in objection. In the absence of specifically framed objection, the trial court permitted defendant rebuttal...." Id. at 452, 224 N.W.2d 840. However, this did not stop the Court from holding that the prosecution cannot elicit a denial from a witness on a material matter so that it can later introduce evidence in rebuttal.

Finally, even the federal court case cited by the majority, United States v. Ince, 21 F.3d 576 (C.A.4, 1994), disallowed a collateral attack where the only objection was on hearsay grounds. The court stated:

[T]he trial judge should have recognized the Government's tactic for what it was— an attempt to circumvent the hearsay rule and to infect the jury with otherwise inadmissible evidence of [the defendant's] alleged confession. [Id. at 582.]

The entire reason that the matter in this case was collateral is because it involved a hearsay statement that otherwise would have been inadmissible. To hold that an objection on hearsay grounds was not specific enough flies in the face of Michigan Supreme Court precedent as well as federal law. For these reasons, I respectfully dissent.

MARILYN J. KELLY, J., concurred with MICHAEL F. CAVANAGH, J.

NOTES

[1] M.C.L. § 750.84; M.S.A. § 28.279.

[2] We note that the rule set forth in Stanaway is narrower than the similar rule in the federal courts. The federal courts have held that impeachment may not be used as a subterfuge to place otherwise inadmissible hearsay before the jury. United States v. Rogers, 549 F.2d 490 (C.A.8, 1976). However, Stanaway is limited to hearsay statements that are relevant to the central issue of the case, not merely "otherwise ... inadmissible hearsay." Id. at 693, 521 N.W.2d 557.

[3] At trial defendant objected to this testimony solely on the basis of hearsay.

[1] I will refer to the defendant's father as Mr. Kilbourn.

[2] While it is true that Mr. Kilbourn 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. Kilbourn a cumulative question or wished to provide Mr. Kilbourn 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.