People v. Forgash
People v. Forgash
Opinion of the Court
Defendant was convicted by a jury of breaking and entering with intent to commit larceny (MCLA 750.110; MSA 28.305). The crime was alleged to have occurred at the premises of the Michigan Steel Products Company in Bay City. Certain evidence was found near the scene of the breaking which tended to link the defendant to the crime. The evidence consisted of' a pair of prescription sunglasses which the defendant admitted to be his, but which defendant claimed he lost while he was an employee of Michigan Steel Products. Also found was a partially depleted package of Camel cigarettes (defendant’s brand) and a piece of paper on which was written the name “Jerry” and a telephone number, which paper was tucked inside the cellophane of the cigarette package. The crime
. At defendant’s trial, one Gerald Kosecki testified that the number on the piece of paper was his telephone number and that the defendant was at his home on the evening of Saturday, February 21,1970. Mr. Kosecki could not recall, however, whether he had given the defendant his telephone number at that time. Upon the failure of Mr. Kosecki’s memory, the prosecutor showed him a statement which Mr. Kosecki had given to the state police on June 11, 1970, and which was written in Mr. Kosecki’s hand. The witness testified that the statement did not refresh his recollection. The statement was then introduced into evidence over the objections
“Dick [2 ] and Pete came over to my place Saturday, February 21st and I and the wife had company. I was drinking a few beers before they came over. Dick went out and got a few more — 6 or 12. He was only gone a few moments and my wife smelled some-think like wiring burning. Dick looked at it but I told him he could come back maybe the next day and look at it, so I believe I wrote down my phone number to call me before he did come over. I never seen him the next day. He was over but I wasn’t home.”
The defendant on appeal argues that the introduction of this statement into evidence constitutes reversible error, and we agree.
While there is some precedent that prior statements of witnesses may be admitted in criminal cases under the theory of past recollection recorded,
We do not reach the question of the possible violation of defendant’s rights of confrontation and
We see other situations where such testimony would have to be admitted, but to enumerate now is unnecessary.
Reversed and remanded.
The fact that defense counsel later used the fact that “Miranda” warnings were printed at the top of the sheet to discredit Kosecki by suggesting that he was a suspect is irrelevant. Counsel’s objection had been preserved and he was merely attempting to make the best of a bad situation.
Referring to defendant, Richard Forgash.
See Hill v Sarbor Steel & Supply Corp, 374 Mich 194, 215 (1965).
People v Hobson, 369 Mich 189 (1963), has been cited for that proposition; however, only three of the seven justices participating in that case concurred in the opinion which advances that proposition. See Zirkalos v Zirkalos, 326 Mich 420, 424 (1949).
Dissenting Opinion
(dissenting). I cannot agree with my colleagues that the statement of Gerald Kosecki was inadmissible for impeachment purposes.
At one time Kosecki told the police that the defendant had been to his home the night of the alleged robbery and he thought he had “wrote down” his phone number for the defendant. At trial he testified that he could not recall whether or not he had given the defendant his phone number. In my opinion there is a contradiction between the testimony of the witness and the statement. The statement was properly admitted to impeach Kosecki’s testimony.
I would affirm.
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