People v. Kilbourn
People v. Kilbourn
Opinion of the Court
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 Kilboum, the defendant, was convicted of two counts of assault with intent to do great bodily harm less than murder.
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 McNamara and Detective Leonard Benden testified that a trail of damage revealed that the miscreants had withdrawn from the McNamara residence in the direction of the Kilboum residence.
Robert Kilboum, Sr., the defendant’s father, was called as a witness in the State’s case in chief. Mr. Kilboum 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. Kilboum, 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 Kilboum residence, Mr. Kilboum 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. Kilboum could not remember if he had discussed the phone call with any of his sons.
During the prosecutor’s direct examination of Mr. Kilboum, the following exchange regarding prior conversations between Mr. Kilboum, Sr., and Detective Bender occurred:
Q. [In] [o]ne of those conversations did you indicate to Detective Benden that Robert Wesley Kilboum [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:
*681 Q. Sir, did you have a discussion with Robert Kilboum, 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. Kilboum 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 Kilboum, 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. Kilboum was inadmissible hearsay. The trial judge overruled the objection, holding that it was admissible for impeachment purposes to contradict Mr. Kilboum, Sr.’s, previous in-court denial of making the statement. The trial judge instmcted the jury that the testimony of Detective Benden regarding Mr. Kilboum, Sr.’s, prior inconsistent statement could only be used to evaluate the credibility of Mr. Kilboum, 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, lim
in
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 Kilboum, 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 statements] by Robert Kilboum, 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 NW2d 557 (1994). However, it apparently misread the rale 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 F2d 94 (CA 5, 1981). People v Stanaway provided an exception to this mle: 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, MCL 750.520d(l)(a); MSA 28.788(4)(l)(a),
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
The facts here are distinguishable from the situation in People v Ince, 21 F3d 576 (CA 4, 1994).
Here, there was at least one direct conflict between Mr. Kilbourn’s testimony at trial and that of another witness. Mr. Kilboum 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. Kilboum 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. Kilboum.
rv
Defendant also alleges that the testimony of Officer Benden was inadmissible because the testimony was designed to impeach Robert Kilboum, Sr., on a collateral matter. The record shows that no objection was made at trial on the grounds now asserted on appeal.
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.
MCL 750.84; MSA 28.279.
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 F2d 490 (CA 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.
At trial defendant objected to this testimony solely on the basis of hearsay.
Concurring Opinion
(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 NW2d 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. [Ante at 683.]
I feel that this is too formal a reading of Stanaway. That case was a response to an attempted manipulation of the hearsay mies. A witness, the defendant’s nephew, denied informing a police officer that the defendant had admitted involvement in the crime. Id. at 688-690. 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. 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.
The Court first noted that, other than the statement regarding the alleged admission, the nephew had not provided any relevant testimony. Id. at 692. Thus, the witness had failed to provide any testimony that made his credibility relevant. Id. at 693. 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. 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. Kilboum’s credibility into question. Mr. Kilboum was asked questions that were cumulative, concerned undisputed facts, or were not
However, Mr. Kilboum did testify that Officer Benden told him that one of his other sons, Craig Kilboum, 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. Kilboum’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. Kilboum’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 constmed as evidence of a confession. Id. at 695. This concern grew from the fact that the officer testified that the defend
I concur in the reversal of the decision of the Court of Appeals.
I will refer to the defendant’s father as Mr. Kilbourn.
While it is true that Mr. Kilboum 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. Kilboum a cumulative question or wished to provide Mr. Kilboum 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.
Dissenting Opinion
(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 that no objection was made at trial on the grounds now asserted on appeal.” Ante at 684. 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 NW2d 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 NW2d 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:
*689 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 (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. 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, People v Ince, 21 F3d 576 (CA 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
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