People v. Dortch , 84 Mich. App. 184 ( 1978 )

Bronson, J.

Defendant was convicted on February 13, 1976, by a jury of first-degree murder, MCL 750.316; MSA 28.548, and conspiracy to commit murder, MCL 750.157a; MSA 28.354(1). He appeals of right raising one issue.

The testimony of Terry Langford was the only evidence against defendant. At defendant’s preliminary examination, Langford testified that he was contacted by defendant and offered $1,000 to kill defendant’s son in a scheme to collect life insurance proceeds. Langford described how he picked up defendant’s illegitimate son and his mother on a pretense of delivering money from Dortch, took them to an isolated area and shot them both twice with a sawed-off shotgun. Langford testified as part of a plea bargain in which he was allowed to plead guilty to second-degree murder, with a recommended sentence of 20-40 years.

At trial, Langford testified that he did not recall any events on the date of the crime. The prosecution moved to introduce Langford’s preliminary examination testimony as substantive evidence. The trial court ruled that the motion was premature because defense counsel had not had the opportunity to cross-examine Langford. On cross, Langford denied the killing, the conspiracy and the truth of his prior testimony, but did not testify as to anything else. The trial court then ruled that the preliminary examination testimony could be read into evidence. The importance of Langford’s preliminary examination testimony is illustrated by the trial judge’s comment in ruling on defendant’s motion for directed verdict that, absent Lang-ford’s preliminary examination testimony, he would have directed a verdict for defendant.

It is not disputed that the preliminary examination testimony was hearsay.¹ See Ruhala v Roby, 379 Mich 102; 150 NW2d 146 (1967). Thus, the question before us is whether the testimony is admissible under some exception to the hearsay rule.

MCL 768.26; MSA 28.1049 provides:

"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.”

Although this statute, by its terms, only allows into evidence prior testimony when the witness cannot be "produced”, or is "mentally incapable” of testifying, cases interpreting it have given it an expansive reading. See, e.g., People v Goldman, 349 Mich 77; 84 NW2d 241 (1957) (refusal to testify), People v Pickett, 339 Mich 294; 63 NW2d 681 (1954) (witness invoked Fifth Amendment), People v Walton, 76 Mich App 1; 255 NW2d 640 (1977) ("recalcitrant” witness); People v Thomas, 61 Mich App 717; 233 NW2d 158 (1975) (lack of memory), People v Szeles, 18 Mich App 575; 171 NW2d 550 (1969) (refusal to testify).

However, People v White, 401 Mich 482; 257 NW2d 912 (1977), decided after trial in the case at bar, alters our perspective. In White, Charles Hodges, a codefendant who pled guilty and testified at the defendant’s first trial, was called by the prosecutor at the defendant’s second trial. At that trial, Hodges began by stating that he could not remember his earlier testimony. After the prior testimony was read to refresh his memory, Hodges testified that his prior testimony was a lie. The Court held² that the prior testimony was not admissible under the prior testimony exception to the hearsay rule; Hodges was not "unavailable”, he had simply changed his testimony.³

A similar scenario evolved in the case at bar. Langford, on direct examination, indicated a lack of memory concerning events on the days in question.⁴ The prosecutor moved to admit Langford’s prior testimony as substantive evidence, but the trial judge deferred ruling on the motion until after cross-examination of Langford. On cross, the only testimony evoked was Langford’s assertion that the prior testimony was not the truth and his denial that he committed the killings or conspired to commit them. The trial judge then ruled the prior testimony admissible.

The rationale of White mandates reversal in the case at bar. Had Langford’s testimony consisted solely of a professed loss of memory, his prior testimony would have been admissible. See People v Thomas; supra; MRE 804(b)(1). However, here, as in White, the witness eventually changed his testimony and repudiated his prior statement. We are compelled by White to hold that Langford was not "unavailable” for purposes of the former testimony exception to the hearsay rule.

We also hold that Langford’s testimony was not an admissible statement against interest. See Peopie v Ernest Edwards, 396 Mich 551; 242 NW2d 739 (1976).

In Edwards, the Court held that statements against penal interest are admissible as an exception to the hearsay rule where the declarant is unavailable for trial.⁵ The Court’s rationale was that such evidence is inherently reliable and should be admitted when necessary. In the case at bar, Langford’s former testimony was given as part of a bargain in which he was allowed to plead guilty to second-degree murder and granted immunity from prosecution. As a result of the favorable bargain, Langford’s testimony was not against his interests; it was in his interest to testify as he did. Because the statement was not so far against Langford’s interest that a reasonable person would not make it unless it were true,⁶ it lacked the requisite indicia of reliability upon which the exception is based. Therefore, the testimony was not admissible under the Edwards exception.

Additionally, the statement against penal interest exception requires the declarant to be unavailable for trial. People v Edwards, supra; MRE 804(b)(3). As we held above, because Langford changed his testimony at trial, he was "available”.⁷ The penal interest exception therefore does not apply. Langford’s prior testimony was inadmissible hearsay. Defendant’s conviction must therefore be reversed.

M. F. Cavanagh, P. J., concurred.

1 Michigan Proposed Rules of Evidence 801(d)(1) would have changed the law by providing that prior inconsistent testimony of a witness who testifies at trial or hearing and is subject to cross-examination is not hearsay. That proposed rule was, however, not adopted. See MRE 801(d).

2 The prosecutor did not advance this argument, but the Court expressly ruled on it. See People v White, supra, at 510.

3 In White and the rejection of proposed rule 801(d)(1)(A), the Supreme Court has reversed the trend toward liberal admissibility of former testimony. McCormick, for example, argues persuasively in favor of wider admission of former testimony:

"The traditional restrictions upon the admission of evidence of former testimony are understandable as the reflections of an earlier era when there were no court reporters, and as logical deductions from the premise that cross-examination is the only substantial safeguard for the reliability of this evidence. But when we view them in comparison with doctrines admitting other types of oral declarations as exceptions to the hearsay rule, such as declarations against interest, declarations of present bodily or mental state, and excited or spontaneous utterances, which seem far less reliable, the restrictions upon declarations in the form of sworn testimony in open court or official hearing, seem fantastically strict. As Morgan said, 'Were the same strictness applied to all hearsay, evidence of reported testimony would constitute the only exception to the hearsay rule.’

"In the light of this broader view, therefore, it seems that the most immediate improvement would come from the wider acceptance among the courts of the attitude that the present scheme of admissibility of former testimony should be applied with a reasonable liberality favoring in case of doubt the admission of this type of evidence.” (Footnotes omitted.) McCormick on Evidence (2d ed, 1972), § 261.

See, also, MRE 801(d)(1)(A) and Commentary.

Furthermore, it is not clear that Hodges, the witness in White, was "available” even though he repudiated his former testimony. After a witness has consistently claimed a lack of memory on direct examination, should a sudden assertion of innocence or the bald statement that the former testimony was a lie preclude a finding that the witness is "unavailable” due to a lack of memory? It certainly seems possible that a witness can assert innocence and still have a lack of memory concerning the subject matter of his former testimony. In such a case, the determination of unavailability should be left to the sound discretion of the trial judge, who is in the best position to view the demeanor of the witness. See MRE 804(a)(3), defining an unavailable declarant as one who "has a lack of memory * * * .”

However, we are again met by the dichotomy posed in White: either the witness lacks memory completely or he has changed his testimony. In White, a statement that the prior testimony was a lie was a sufficient change in testimony to render Hodges "available”. Lang-ford’s similar assertion in the case at bar therefore constituted a "change” in testimony preventing admission of the former testimony.

4 "Q. If I understand your testimony then, Mr. Langford, and let me know if I am wrong, on September 17th and 18th of 1974— [A physician found the date of the victims’ deaths to be September 17 or 18. They were found on September 27.]

"A. — Now, you can’t say from September 20th or whatever, you have got to give me the exact date, because that’s been about a year or something ago, you know.

"Q. I know. It’s been longer than that.

"A. Yeah.

"Q. Let me ask you, September 17, 1974, being a Tuesday, where were you living at that time?

"A. Now, you asked me a question that I can’t recall, because of the fact that it’s been so long ago.

"Q. Do you recall your activities for that day?

"A. No, I don’t.

"Q. On September the 18th, the next day, Wednesday, 1974, can you remember on that day where you lived?

"A. No.

"Q. Can you remember where you were?

"A. No.

"Q. And one more day, September 19th, being a Thursday, can you recall where you lived?

“A. No.

"Q. Now, I asked you earlier as to another date, which was September 27, 1974, being a Friday, do you recall where you lived at that time?

"A. Do I recall where I lived at?

"Q. Yes, September 27, 1974, Friday?

"A. Yes, the. Milner Hotel.

"Q. And do you recall where you were living, your whereabouts?

"A. At the Milner Hotel.

"Q. Milner?

"A. Yes.

"Q. And do you recall where you were on the evening of that particular day, Friday?

"A. No, I don’t recall. All I know I was at the Milner Hotel where I was staying, but as far as my activities were concerned, I couldn’t tell you.

"Q. Okay, thank you.”

5 Cf. MRE 804(b)(3), requiring corroboration of exculpatory statements against the declarant’s penal interest.

6 See MRE 804(b)(3).

7 It is not clear whether "unavailability” is differently defined for different hearsay exceptions. See McCormick on Evidence (2d ed, 1972), § 253. Absent any Michigan authority defining "unavailability” in the context of the penal interest exception, we hold that the definition developed for admission of former testimony applies to the statement against interest exception as well. See MRE 804, which defines "unavailability” without differentiating it for various hearsay exceptions.