People v. Rodgers , 388 Mich. 513 ( 1972 )

388 Mich. 513 (1972) 201 N.W.2d 621

PEOPLE
v.
RODGERS

No. 4 September Term 1972, Docket No. 53,729.

Supreme Court of Michigan.

Decided October 31, 1972.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.

Samuel A. Turner, for defendant on appeal.

T.E. BRENNAN, J.

This case deals with the admissibility in evidence of a written memorandum.

Defendant on trial for armed robbery interposed the defense of alibi. The prosecution sought to impeach one of the alibi witnesses by showing that the witness had made a prior inconsistent statement to one Taylor, a detective.

During the cross-examination of the alibi witness, one King, a foundation for the admission of the prior inconsistent statement was laid — that is to say King was asked if he had made the prior statement, and he denied having made it.

The making of the prior inconsistent statement being put in issue, Taylor was called to establish that the prior inconsistent statement was made.

The following then occurred:

"Q. Can you tell me what Mr. King told you that evening relating to the facts in this case?

"A. Mr. King related to me —

"Mr. Sherman [counsel for defendant]: That would be hearsay, Your Honor. I would object. It is out of the presence of the Defendant.

"The Court: What purpose is it on?

"Mr. Bianco [assistant prosecuting attorney]: Impeachment, Your Honor.

"The Court: The objection is overruled.

"Mr. Bianco: Thank you.

"Q. (By Mr. Bianco) 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.

"Q. All right, I'm going to show you a piece of paper and ask you if you can identify that.

"A. Yes.

"Q. All right, can you tell me what it represents to you?

"A. That is a statement of Mr. King given to me by him.

"Q. All right, will you read that to the jury?

"Mr. Sherman: Well, I'd like to see that. I think I am entitled.

"Mr. Bianco: Don't talk to me about it.

"The Court: All right, Mr. Sherman.

"Mr. Sherman: Thank you, Your Honor. May I have the voir dire as to this, Your Honor?

"The Court: Yes.

"EXAMINATION BY MR. SHERMAN:

"Q. Now, Detective Taylor, when was the first time you talked to Sam King?

"The Court: Use a lectern while you're questioning the witness.

"Q. (By Mr. Sherman) When was the first time you talked to Sam King about this case?

"A. The very first time I talked to him?

"Q. Yes.

"A. Back the night of the armed robbery.

"Q. The night of the armed robbery? Did you take a statement from him then?

"A. No, I didn't.

"Q. You did not? When was the next occasion that you talked to him?

"The Court: Now, Mr. Sherman, that isn't voir dire. If you want to voir dire the witness as to the use of this document, that's not so.

"Mr. Sherman: Well, Your Honor, his statement was, as I recall, that he interviewed — the first time he interviewed Sam King was on the 13th of June or the 16th of June.

"Mr. Bianco: He said the 14th of June. He didn't say it was the first time, he said it was when he took this statement.

"Mr. Sherman: I wanted to find out whether he has taken other statements.

"The Court: That would be the subject of cross examination.

"Q. (By Mr. Sherman) Where was this statement taken?

"A. This statement was taken at 2249 South Electric in the City of Detroit.

"Q. And had you acknowledged ever taking a statement from Mr. King to me before?

"A. I don't recall.

"Q. 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.

"Mr. Sherman: I have nothing further but I object to the use of that statement.

"The Court: On what grounds?

"Mr. Sherman: On the grounds that the statement is solely hearsay given out of the presence of the Defendant, unsigned, uncooperative in any respect.

"The Court: It isn't offered in evidence.

"Mr. Sherman: Well, it is being offered by impeachment, Your Honor, and there is no basis for the admission of this statement.

"The Court: It isn't offered.

"Mr. Sherman: Well, he is asking him to read it.

"The Court: That's present recollection, the classic case of present recollection.

"Go ahead.

"Mr. Bianco: Thank you, Your Honor.

"The Witness: This is the statement of Samuel King taken by Detective Charles Taylor at 2249 South Electric, Detroit, Michigan. Time: 1:30 A.M. Saturday, June 14, 1969: ``I went to the game that night. I saw Larry there but it wasn't until after the game. Anyway, the game was over I don't know what time it was but Larry did not go to the Castle with me. We were parked in the Castle parking lot. Larry might have come over sometime during the time he was at the Castle and got in my car and got right back out but he didn't go to the Castle with me. They told me to say that he was with me but I told them I wasn't going to lie for them and I didn't want to get involved.'

"That is what he told me.

"Mr. Bianco: You realize you're still under oath?

"The Witness: Yes, sir.

"Mr. Bianco: And that's what he told you?

"The Witness: Yes, sir." (Emphasis added.)

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).

There was nothing to prevent Taylor from testifying verbally. He could have related his conversation with King. If he could not recall the conversation, he could have been shown the memorandum to refresh his memory. If he could not then testify without the aid of the memorandum, the written memorandum might then have been introduced in evidence and read to the jury provided a proper foundation was laid. Jaxon v City of Detroit, Department of Street Railways, 379 Mich. 405, 413 (1967).

Under the circumstances here, the writing was inadmissible. The dissenting opinion of Judge LEVIN in the Court of Appeals contains an exhaustive analysis. We adopt it.

Reversed and remanded for new trial.

T.M. KAVANAGH, C.J., and ADAMS, T.G. KAVANAGH, SWAINSON, and WILLIAMS, JJ., concurred with T.E. BRENNAN, J.

BLACK, J., did not sit in this case.