PEOPLE v BLACKSTON
Docket No. 134473
Supreme Court of Michigan
Argued March 4, 2008. Decided June 25, 2008.
481 MICH 451
In an opinion by Justice CORRIGAN, joined by Chief Justice TAYLOR and Justices WEAVER and YOUNG, the Supreme Court held:
The defendant is not entitled to a new trial because the trial court acted within its discretion when it excluded the witnesses’ recantations and denied the defendant‘s motion for a new trial. Any error that may have occurred was harmless.
1. Evidence impeaching hearsay declarants that meets the criteria of
2. It is unnecessary to decide whether the defendant‘s claim of error was preserved or whether it is constitutional in nature, because any error was harmless under each of the possibly applicable standards. Had the recanting statements been admitted, they could have been used only for the purpose of impeaching the credibility of Simpson and Zantello and, at the most, would have caused the jury to discredit their testimony inculpating the defendant. The defendant would have been left to rely on his primary alibi defense, which depended solely on the highly suspect testimony of his three sisters and of Williams, who admitted that he had been a large-scale cocaine dealer at the time but denied commissioning Miller‘s murder. The jury would have been left with the untainted testimony of Miller‘s girlfriend and her sister, who both stated that the defendant had confessed to them and apologized for his involvement in Miller‘s murder. In light of the volume of untainted evidence against the defendant, any error did not affect the outcome of the case.
Reversed and remanded to the Court of Appeals for further proceedings.
Justice MARKMAN, joined by Justices CAVANAGH and KELLY, dissenting, would affirm the Court of Appeals, stating that the trial court abused its discretion in excluding the recanting statements because, far from being marginally probative, they would have impeached two critical prosecutorial witnesses. This error was not harmless, regardless of which test applied, because the evidence against defendant was by no means overwhelming, the exclusion of the recanting statements of the prosecutor‘s two critical witnesses may very well have been outcome determinative, and the error may have resulted in the conviction of an actually innocent defendant. The exclusion of the statements seriously affected the fairness, integrity, and public reputation of the proceeding because, by restricting the jury‘s access to all the available evidence, it presented the jury with a highly distorted view of the evidence against the defendant and, thus, deprived him of a fair trial.
EVIDENCE - HEARSAY - IMPEACHMENT - UNFAIR PREJUDICE.
Evidence impeaching a hearsay declarant is not automatically admissible under
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Juris Kaps, Prosecuting Attorney, and Eric Restuccia, Assistant Attorney General, for the people.
Patrick K. Ehlmann for the defendant.
OPINION OF THE COURT
CORRIGAN, J. At issue in this case is whether defendant is entitled to a new trial on the basis of his argument that two unavailable witnesses’ written recantations were improperly excluded from defendant‘s second trial. A transcript of the witnesses’ testimony from the first trial was admitted as evidence at the second trial and defendant sought to admit the recanting statements for purposes of impeachment. The Van Buren Circuit Court denied defendant‘s motion to introduce the statements. The court also denied defendant‘s motion for a new trial, in which defendant argued that the statements were improperly excluded. The Court of Appeals reversed and ordered a new trial. We conclude that defendant is not entitled to a new trial because the trial court acted within its discretion when it excluded the recantations and denied defendant‘s motion for a new trial. Further, any error that may have occurred was harmless. Accordingly, we reverse the Court of Appeals judgment and remand to that court for consideration of any remaining issues advanced by defendant in his claim of appeal.
FACTS AND PROCEEDINGS IN THE CIRCUIT COURT
In 2001 and 2002, juries twice convicted defendant, Junior Fred Blackston, for the first-degree murder of Charles Miller.1 In 1988, Miller was executed and buried in a field near defendant‘s home in Allegan County. Miller‘s disappearance remained unsolved until codefendant Charles Lamp ultimately led the police to Miller‘s body in 2000. At defendant‘s first trial, code-
Defendant testified at the first trial but not at the second. Defendant agrees that the victim was at defendant‘s house on the night he was murdered. Through alibi witnesses, defendant asserted that he did not leave the house with Miller, Lamp, and Simpson. The defense contended that defendant remained home with his 1½-year-old daughter. The child‘s mother—defendant‘s girlfriend at the time, Darlene (Rhodes) Zantello—was pregnant. All parties agreed that she left her 1½-year-old daughter with defendant when Zantello went to the hospital that night because she was experiencing pain. Lamp and Simpson testified that defendant brought his daughter along and left her sleeping in the back seat of the car during the crime.
Zantello testified at the first trial that, when she returned home from the hospital that night, defendant was not present but returned later with Simpson. Zantello overheard Simpson say “that was like a movie with all that blood.” She also recalled hearing the men mention an ear being cut off, a pre-dug hole or grave, and that defendant “almost blew his whole head off.”
Rebecca (Krause) Mock, Miller‘s girlfriend at the time of his death, and Mock‘s sister, Roxann (Krause) Barr, also testified that, in 1990, defendant had admitted his involvement in the murder to them. They said
Defendant‘s three sisters each confirmed his alibi. Each sister attested that she had visited defendant‘s house—and had found him home with his daughter—on the night of September 12, 1988, when Miller disappeared. Defendant also produced Williams, who claimed to have known nothing about Miller‘s death. The investigators acknowledged that they had been unable to link Williams to Miller‘s murder.
The second jury trial took place in 2002. In the interim, both Simpson and Zantello proffered written statements2 recanting their former testimony. Simpson claimed that only he and Lamp participated in the murder and that he had implicated defendant for personal advantage under pressure from the prosecutor. Zantello claimed that an abusive boyfriend had pressured her; he sought to gain favor with the prosecutor in a separate case against him. In her recanting statement, she denied having overheard Simpson and defendant talking about the murder and claimed that defendant was home when she returned from the hospital.
Neither Simpson nor Zantello testified at the retrial. Simpson refused to testify. Zantello stated that she could not remember the night of the crime, her previous statements to the police, her previous testimony, or the contents of her recanting affidavit, which she had completed only three months earlier. The trial court declared both witnesses unavailable. It admitted their testimony from the first trial under
Defendant was convicted again of first-degree murder and again moved for a new trial. For the first time, he argued that the recanting statements should have been admitted under
APPEAL
Defendant appealed and the Court of Appeals reversed and remanded for a new trial, concluding that the statements should have been admitted under
This Court vacated the Court of Appeals opinion and remanded for that court to “fully evaluate the harmless error question by considering the volume of untainted evidence in support of the jury verdict, not just whether the declarants were effectively impeached with other inconsistent statements at the first trial.” We also directed the Court of Appeals to consider whether the error, if any, was harmless beyond a reasonable doubt.6
STANDARD OF REVIEW
The correct standard of appellate review of defendant‘s claimed evidentiary error has generated considerable debate in this case. The prosecution originally conceded that any error was preserved constitutional error—because it implicated defendant‘s confrontation rights—and therefore subject to review for whether it was harmless beyond a reasonable doubt.9 But the Court of Appeals found it unnecessary to decide whether the error was constitutional in nature. It held that reversal was required even under the less stringent standard for nonconstitutional error, concluding that it was more probable than not that the error was outcome determinative.10 Our order of remand presumed that the standard governing preserved constitutional error applied.11 The prosecution now argues that any eviden-
A trial court‘s decision to grant or deny a motion for a new trial is reviewed for an abuse of discretion.13 A trial court may be said to have abused its discretion only when its decision falls outside the principled range of outcomes.14
ANALYSIS
First, we conclude that the trial court acted within its discretion in denying defendant‘s motion for a new trial. At trial, defendant moved that he be “allowed somehow” to introduce the unavailable witnesses’ statements as impeachment evidence.15 At the new-trial hearing, he argued that
In this case, the court ruled that the recantations would have qualified for admission under
The court also concluded that the recantations were highly prejudicial; Zantello and Simpson did not merely recant their former accusations, but provided lengthy explanations for why they had lied. Simpson‘s statement in particular amounted to an epistle advocating defendant‘s acquittal. The court opined that Simpson‘s statement likely would not have been admissible even if he had testified. At a minimum, Simpson would have been vigorously cross-examined regarding the statement had he testified. Yet, because he rendered himself unavailable at the second trial, he foreclosed the possibility of cross-examination regarding his wide-ranging assertions.18
We conclude that the court‘s decision was principled and supported by Michigan law. The trial court reasonably excluded the statements because they were highly unfairly prejudicial. Most significantly, to the extent that the statements’ irrelevant or unfairly prejudicial content could have been redacted as suggested by the Court of Appeals, their remaining contents would have been largely cumulative.
Simpson‘s recantation, which is unsworn,19 is an eight-page missive, more than half of which is devoted to recounting hearsay statements purportedly made by
With respect to Zantello‘s recanting statement, she claims to have previously perjured herself as a result of cajoling statements by a former boyfriend, who never testified and was never cross-examined about his involvement. Although Zantello testified briefly at the second trial, she was unable to answer the prosecutor‘s questions because she did not “recall what [she] said” and did not want to “incriminate [her]self because of [her] former testimony” inculpating defendant. Both witnesses were thus unwilling or unable to testify regarding the contents of the statements that they signed just seven and three months, respectively, before the retrial.
For these reasons, the trial court reasonably concluded that the statements’ potential for prejudice was
Specifically, Simpson‘s statement admits that he made inconsistent statements to police beginning in 1989 “when doing so served [his] best interest[s]. (ie: getting-deals [sic] on other non-related offenses).” He states that he lied at the first trial to avoid perjury charges and gain immunity from prosecution. He also reiterates that Lamp had threatened to kill him or his family if he implicated Lamp. He proceeds to give an account of events on the night of the murder in which he asserts that Lamp, not defendant, killed Miller. Simpson‘s cross-examination during the first trial, which was read at the second trial, had similarly revealed that Simpson told varying stories over the years regarding who was responsible for the murder in order to gain personal advantage. His testimony also revealed that he had been threatened by Lamp. Simpson also explicitly acknowledged during the first trial that, if he did not accuse defendant of the murder at
Zantello‘s statement similarly repeats assertions that she made at the first trial and that were read into the record at the second trial. At the first trial and in her recanting statement, Zantello confirmed that she originally told the police that she knew nothing about the murder and did not overhear defendant and Simpson talk about any murder. Indeed, as with Simpson, the primary permissible use of Zantello‘s recantation would have been to show the jury that she had reverted to a previous version of her story, not that she was claiming defendant‘s innocence for the first time. Accordingly, it is significant that defense counsel succeeded in confronting Zantello with the fact that she had recanted by explicitly asking her at the second trial whether she remembered making a statement that defendant “was home when [she] got home and that [she] had lied under oath originally because [she] had been threatened.” She simply answered: “No, I do not.”
Under these circumstances, the admissible portions of both statements were largely cumulative to the remaining evidence relevant to Simpson‘s and Zantello‘s credibility, which was presented at both trials and, with regard to Zantello, which was expanded on during her live testimony at the second trial. Therefore, the trial judge—who had become familiar with the witnesses over the course of two trials—did not abuse his discretion when he denied defendant‘s motion for a new trial on the basis of defendant‘s argument that admission was required under
Further, the trial court‘s discretionary decision in this case differs from that of the trial court in United States v Grant, 256 F3d 1146, 1155 (CA 11, 2001), on which the dissent relies. In Grant, a co-conspirator never testified because he had been deported before the trial took place. Id. at 1153. The co-conspirator‘s previous, arguably inculpatory statements were read into the record; the statements circumstantially linked the defendant to the conspiracy but did not directly name him as a conspirator. Id. at 1152-1153. At trial, defense counsel properly moved under
The circumstances of Grant differ from those of the case before us in crucial respects. First, the exculpatory statements in Grant were significantly more probative because they appear to have been the co-conspirator‘s only exculpatory statements. For this reason, in contrast to the instant case, they were not cumulative. Second, although the prosecutor in Grant observed on appeal that the exculpatory statements were unreliable because they were made only after the co-conspirator was deported, the trial court in Grant did not find that the co-conspirator explicitly attempted to manipulate the trial process by injecting collateral issues into the trial or gained an advantage by changing his story. Rather, as noted earlier, the court concluded that the statements did not directly contradict each other. In sum, without regard to whether we agree with the Grant court‘s holding, we conclude that Grant is distinguishable.22
Lamp‘s testimony would be subject to the utmost scrutiny, given his undisputed involvement in the murder, his plea agreement, and defendant‘s theory, supported by many of the impeaching statements that were not admitted, that Lamp had done the shooting himself. Further, much of the interlocking testimony concerned the allegation that defendant killed Miller and cut off his ear at the direction of drug dealer Benny Williams. However, police testified that they had no evidence connecting Williams to the murder, Williams testified that he did not know Miller and had not received one of his ears, and police also testified that there was no physical evidence indicating that Miller‘s ear had been cut off. Regarding Mock and her sister, there was testimony that they and defendant were always drinking when they were together. Further Mock, her sister, and Z[a]ntello, who was supposedly present during some of the discussions, gave differing accounts of what defendant said. Lastly, we conclude that the evidence overwhelmingly supported that defendant knew something about the murder, but his role, and the extent of his knowledge and participation or assistance, largely depended on Simpson‘s testimony.23
First and foremost, the court erred as a matter of law by considering the recanting statements for improper purposes. It erroneously concluded that defendant‘s theory that Lamp committed the shooting without defendant‘s aid would have been supported “by many of the im-
circumstances of this case and those of Vaughn are different in no way requires the conclusion that the trial court abused its discretion here.
The Court of Appeals mischaracterizes the untainted evidence by essentially dismissing the very significant testimony of Mock and Barr. The sisters both described a specific night and location at Lion‘s Park where defendant tearfully apologized and admitted to them that he had participated in Miller‘s murder.25 Mock recalled that defendant specifically told her that defendant pulled the trigger and cut off Miller‘s ear. Barr recalled defendant saying that defendant was present at the murder but thought that he said Lamp had pulled the trigger. Barr also testified that, around the time of the murder, she had been at someone‘s house and “they were saying that Charles’ ear was in the freezer.” Most significantly, Mock attested that, in April 1990, in light of defendant‘s confessions, Mock convinced him that he should speak with the police. Defendant initially agreed
CONCLUSION
We hold that the trial court did not abuse its discretion when it denied defendant‘s motion for a new trial on the basis of defendant‘s argument that
TAYLOR, C.J., and WEAVER and YOUNG, JJ., concurred with CORRIGAN, J.
MARKMAN, J. (dissenting). Following a jury trial, defendant was convicted of first-degree murder. However, the trial court granted defendant‘s motion for a new trial because the jury was misinformed regarding the extent of the immunity granted to a witness in exchange for that witness‘s testimony against defendant. After the first trial, but before the second trial, two witnesses, in signed written statements, recanted the testimony that they had provided in the first trial against defendant. Although the trial court admitted these witnesses’ testimony from the first trial, the trial court excluded their recanting statements. Following a second jury trial, defendant was again convicted of first-degree murder. The Court of Appeals reversed and remanded for a new trial, concluding that the trial court had abused its discretion in excluding the recanting statements and that the error was not harmless. The majority here today reverses the Court of Appeals, concluding that the trial court did not abuse its discretion in excluding the statements and that any error was harmless. Because I agree with the Court of Appeals that the trial court abused its discretion in excluding the statements and that this error was not harmless, I dissent.
I. FACTS AND PROCEDURAL HISTORY
In 2001, following a jury trial, defendant was convicted of first-degree murder for the shooting death of Charles Miller in 1988. During this first trial, Guy Simpson, an alleged accomplice who was given full
Lamp, who testified pursuant to a plea agreement under which he pleaded guilty of manslaughter and received a 10- to 15-year sentence, also testified that defendant shot Miller while Lamp and Simpson were present, and that defendant cut off Miller‘s ear. Lamp further testified that defendant killed Miller for Williams. He admitted that he had once threatened to kill Simpson if Simpson talked to the police. Lamp eventually took the police to the location where Miller‘s remains were found.
Rebecca Mock and her sister, Roxann Barr, testified that one night when they were all drinking, defendant admitted being present when Miller was killed. However, Mock and Barr offered differing accounts of what exactly defendant said, including whether he stated that he killed Miller.2
Three of defendant‘s sisters supported his alibi defense. They all testified that he was at home on the night that Miller was killed. According to Lamp and
After the first trial, the trial court granted defendant‘s motion for a new trial because the jury had been misinformed regarding the extent of the immunity that was granted to Simpson in exchange for his testimony against defendant. After the first trial, but before the second trial, Simpson and Zantello provided signed and written statements recanting the testimony that they had presented against defendant at his first trial.
Simpson‘s signed and written statement explained that Lamp was the one who shot Miller, and that defendant was not even present when Lamp did so. Simpson stated that defendant was at home when he left with Miller and Lamp, and that defendant was still at home when Lamp dropped him off at defendant‘s house later that evening after Lamp shot Miller in front of Simpson. As far as he knew, defendant was at home that entire evening. Simpson further stated that the prosecutor threatened to charge him with obstruction of justice if he did not testify against defendant, but promised him “full immunity” if he testified against defendant, even though Simpson asserted that he told the prosecutor that defendant was innocent. He also explained that all his statements to the police implicating defendant were given while he was incarcerated for unrelated crimes and were given to benefit himself while he was facing criminal charges. Finally, he ex
Similarly, Zantello explained in a signed written and notarized affidavit that the first statement that she gave to the police was the truth; that is, defendant was at home when she arrived home that evening and she did not know anything about Miller‘s murder. She explained that about 10 months after the murder, she was arrested for disorderly conduct and was instructed to implicate defendant in Miller‘s murder. She further explained that her boyfriend at the time of defendant‘s first trial, Robert Lowder, was released from jail even though he had two felony charges pending against him. Lowder told her that if she testified against defendant, he would not go to prison for his felony charges. The prosecutor in charge of Lowder‘s case was also the prosecutor in charge of defendant‘s case, and she was afraid of Lowder. The two felony charges pending against Lowder were for beating her. Finally, she admitted that she never overheard any conversations about Miller‘s murder, and that defendant had always told her that he was not involved in Miller‘s murder.3
At defendant‘s second trial, the court ruled that Simpson and Zantello were unavailable on the basis of their unwillingness to testify and alleged memory problems.4 Although the trial court admitted these wit
The trial court denied defendant‘s motion for a new trial, holding that although the witnesses’ recanting statements were admissible under
On remand, the Court of Appeals held that the error was not harmless beyond a reasonable doubt, and, thus, again reversed and remanded for a new trial. People v Blackston (On Remand), unpublished opinion per curiam of the Court of Appeals, issued May 24, 2007 (Docket No. 245099). In response to the prosecutor‘s second application for leave to appeal, we ordered and heard oral argument on whether to grant the application or take other peremptory action. 480 Mich 929 (2007). The majority now reverses the Court of Appeals.
II. STANDARD OF REVIEW
A trial court‘s decision to exclude evidence is reviewed for an abuse of discretion. Elezovic v Ford Motor Co, 472 Mich 408, 419; 697 NW2d 851 (2005). A trial court‘s decision to deny a motion for a new trial is likewise reviewed for an abuse of discretion. Barnett v Hidalgo, 478 Mich 151, 158; 732 NW2d 472 (2007). The court abuses its discretion when it chooses an outcome falling outside the principled range of outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
I agree with the majority that it is unnecessary to determine whether the error here was preserved, constitutional error or unpreserved, non-constitutional error. However, unlike the majority, I reach this conclusion because I believe that even assuming that the error was unpreserved, non-constitutional error, and thus that the most difficult standard for defendant to satisfy is applicable, the error here was not harmless and defendant is entitled to a new trial. As will be discussed
III. ANALYSIS
A. EXCLUSION OF EVIDENCE
As discussed earlier, although the trial court admitted Simpson‘s and Zantello‘s testimony from the first trial, it excluded their subsequent recantations. I agree with the Court of Appeals that the trial court abused its discretion when it excluded this evidence.
When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant‘s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination. [Emphasis added.]
At the motion for a new trial, the trial court agreed that the recanting statements were admissible under
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
“Evidence is not inadmissible simply because it is prejudicial. Clearly, in every case, each party attempts to introduce evidence that causes prejudice to the other party.” Waknin v Chamberlain, 467 Mich 329, 334; 653 NW2d 176 (2002). “Relevant evidence is inherently
Given that the excluded evidence at issue here would have impeached two critical prosecutorial witnesses, this evidence cannot possibly be considered “marginally probative evidence,” and, thus, cannot possibly be considered “unfairly prejudicial.” Therefore, the trial court‘s holding to the contrary “fall[s] outside th[e] principled range of outcomes,” Babcock, 469 Mich at 269, and thus constitutes an abuse of discretion.
Where a Michigan rule of evidence is modeled after its federal counterpart, it is appropriate to look to federal precedent for guidance, People v Barrera, 451 Mich 261, 267; 547 NW2d 280 (1996), although the latter is never dispositive. Both
Rule 403 is an “extraordinary remedy,” whose “major function... is limited to excluding matter[s] of scant or cumulative probative force, dragged in by the heels for the sake of [their] prejudicial effect.” The Rule carries a “strong presumption in favor of admissibility.” Wilson‘s inculpatory co-conspirator statements were important pieces of evidence in the government‘s case. The impeaching statements in the affidavit would serve to cast doubt on Wilson‘s credibility and would have significant probative value for that purpose. Whatever prejudice to the government that might occur from admitting the affidavit statements could not substantially outweigh their probative value, anymore than it could if those affidavit statements had been admitted for impeachment following live testimony of Wilson to the same effect as his co-conspirator statements. [Id. at 1155 (citations omitted).]
In Vaughn v Willis, 853 F2d 1372 (CA 7, 1988), plaintiff Terry Vaughn, an inmate, testified that defendant Henry Willis, a guard, helped several inmates rape Vaughn. Alvin Abrams, another inmate, testified during a deposition that he saw Willis help the inmates rape Vaughn. Before the trial in this civil action, Abrams wrote a letter to Willis‘s attorney stating that he would not testify at the trial and that he had made some mistakes during his deposition. Subsequently, Abrams was allowed to correct the mistakes made in his deposition, which simply pertained to the sequence in which the assailants entered Vaughn‘s cell, and again swore to
The Seventh Circuit Court of Appeals affirmed the trial court‘s decision to exclude the letter for several reasons. First, the letter‘s probative value was minimal because it was “very ambiguous.” Id. at 1379. Second, the letter had the potential of confusing the jury because it referred to mistakes that the witness had made in his prior testimony, but those mistakes pertained only to irrelevant details and had subsequently been corrected. Id. at 1380. The court‘s third reason for affirming the trial court‘s decision to exclude the letter was that the witness did not want this letter disclosed because he “fear[ed] for his safety and that of his family.” Id.
In the instant case, the trial court held that Vaughn is “more akin to our case in the sense that, although it wasn‘t prior trial testimony, it was prior testimony given in a deposition where there was a full right to cross examine, and the subsequent statement was a letter.” I respectfully disagree. Both Grant and the instant case involve a statement by a witness/accomplice followed by a recanting statement by that same witness/accomplice. Vaughn, on the other hand, involved a statement by an eyewitness, not an alleged accomplice, followed by a letter refusing to testify, not a recanting statement. Unlike the statements in Grant and in the present case, the letter in
Grant and the instant case are similar in another respect. In Grant, the prosecutor argued that the subsequent statement should be excluded because it would provide a “complete defense” and because it was “particularly unreliable.” Grant, 256 F3d at 1155. Similarly, in the instant case, the trial court excluded the subsequent statements because they were an “advocacy for acquittal” and because the witnesses’ “manipulative nature” made him “skeptical.” However, the court in Grant rejected these arguments, stating:
The evidence of the affidavit statements could do no more than impeach and could not provide “a complete defense” if the government requested the limiting instruction to which it would have been entitled. See Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 733, 145 L. Ed.2d 727 (2000) (“A jury is presumed to follow its instructions.“).
The government‘s second fallback argument is that Wilson‘s affidavit statements were properly excluded from evidence because they were particularly unreliable.... The government maintains that because the statements in
the affidavit were so unreliable, admitting them would not have affected the outcome of the trial—sort of a harmless error argument. The government‘s argument on this point is more than a little inconsistent with its Rule 403 argument that the affidavit statements were terribly prejudicial to its case. Putting that inconsistency aside, however, Rule 806 made the statements admissible for impeachment purposes, and the point of admitting inconsistent statements to impeach is not to show that they are true, but to aid the jury in deciding whether the witness is credible; the usual argument of the party doing the impeaching is that the inconsistent statements show the witness is too unreliable to be believed on important matters. See United States v. Graham, 858 F.2d 986, 990 n. 5 (5th Cir.1988) (“[T]he hallmark of an inconsistent statement offered to impeach a witness‘s testimony is that the statement is not hearsay within the meaning of the term, i.e., it is not offered for the truth of the matter asserted, see
Fed.R.Evid. 801(c) ; rather, it is offered only to establish that the witness has said both ‘x’ and ‘not x’ and is therefore unreliable.“). Given all the circumstances of this case, that strategy might well have worked to undermine the probative effect of Wilson‘s co-conspirator statements to such an extent that the verdict on the conspiracy charge would have been different. For that reason, we reverse Grant‘s conviction on that charge. [Id. at 1155-1156.]7
These same arguments should likewise be rejected in this case. The subsequent statements here are not admissible to prove that defendant was not the shooter. Instead, they are admissible to show that two of the prosecutor‘s witnesses are not credible. As the Court of Appeals explained:
[T]he statements were not offered to prove the truth of what was in them, but to attack the witnesses’ credibility. As in Grant, the very reason the court excluded the statements, because it questioned the veracity and credibility of the witnesses, made the statements all the more probative on the credibility issue. Defendant should have been free to show the jury that the witnesses were unworthy of belief. Credibility is always a question for the jury, and the court erred in concluding that it would have been proper to insulate the jury from the witnesses’ contradictory statements. [Blackston (On Remand), supra at 7-8.]
The probative value of the recanting statements was not substantially outweighed by the danger of unfair prejudice under
B. HARMLESSNESS OF ERROR
I also agree with the Court of Appeals that the error was not harmless. Simpson testified that defendant was the shooter. However, Simpson testified against defendant in exchange for full immunity; before testifying at the first trial, he indicated that he wanted to testify truthfully but was concerned that he would be charged with perjury if his testimony conflicted with his previous statement; Simpson has told several different versions of the events; in his very first statement to the police, Simpson said that Lamp was the shooter and that defendant was not even there, which is consistent with his most recent statement; Simpson testified that defendant cut off Miller‘s ear, but the police testified that there was no physical evidence indicating that Miller‘s ear had been cut off; Simpson testified that defendant killed Miller for Williams, but Williams testified that he did not know Miller and the police indicated that there was no evidence that Williams was in any way involved with Miller‘s death; and Lamp threat
Lamp also testified that defendant shot Miller. However, Lamp also testified against defendant in exchange for a plea agreement; Lamp testified that defendant cut off Miller‘s ear, but the police testified that there was no physical evidence indicating that Miller‘s ear had been cut off; Lamp testified that defendant killed Miller for Williams, but Williams testified that he did not know Miller, and the police indicated that there was no evidence that Williams was in any way involved in Miller‘s death; Lamp threatened to kill Simpson if he said anything to the police to endanger his plea agreement; defendant had an affair with Lamp‘s wife; and, finally, Simpson has stated that Lamp shot Miller.
Zantello testified that defendant was not at home when she arrived at home and that she overheard defendant and Simpson talking about blowing somebody‘s head. However, in her very first statement to the police she said that defendant was home when she arrived there and that defendant was not involved in Miller‘s murder, which is consistent with her most recent statement; and she testified that she overheard defendant and Simpson talking about cutting off somebody‘s ear, but the police testified that there was no physical evidence indicating that Miller‘s ear had been cut off.
Mock testified that defendant told her that he shot Miller. However, Mock was a suspect in Miller‘s murder; Barr, who witnessed the same conversation, testified that defendant did not say that he was the shooter9 and that they were all drunk when this confession allegedly
There are also inconsistencies between the testimonies of Lamp, Simpson, Mock, and Zantello regarding who showed up when at defendant‘s house on the night that Miller was murdered. See note 2, supra. Finally, three of defendant‘s sisters testified that defendant was home the night that Miller was killed.
The evidence against defendant, in other words, was anything but overwhelming. All the prosecutor‘s witnesses had compelling motives to lie. Simpson, Lamp, and Mock were all suspects. Zantello was defendant‘s ex-girlfriend and, according to Zantello, her then-current boyfriend, who beat her, forced her to testify against defendant because the prosecutor—the same prosecutor prosecuting defendant‘s case—allegedly promised the boyfriend no prison time if she did so. Under these circumstances, excluding Simpson‘s and Zantello‘s written statements that indicated that defendant was innocent was not harmless error. These statements could very well have caused the jury to have reasonable doubt about defendant‘s guilt.
The prosecutor argues that the recanting statements are cumulative because the jury already heard evidence that Simpson and Zantello had made prior inconsistent statements. However, Zantello‘s earlier inconsistent statement made to the police just after the incident and while she was still living with defendant did not under
The jury heard evidence that Zantello‘s first statements to police were that defendant was home when she returned from the hospital, and that she knew nothing about Miller‘s disappearance except that defendant was not involved. However, these statements were given shortly after Miller‘s disappearance, and when Zantello was living with defendant. The jury could have easily decided that the earlier inconsistent statements did not undermine the trial testimony, reasoning that Zantello had given a statement in March, 1990 that incriminated defendant, and that at the time of trial, Zantello was no longer involved with defendant, and was therefore no longer willing to lie in his behalf. The fact that Zantello reaffirmed her earlier position shortly before the second trial would have undermined her trial testimony in a way that the earlier statements could not. [Blackston (On Remand), supra at 8.]
In addition,
[r]egarding Simpson, although he was impeached with having given prior inconsistent versions of what happened to Miller, as set forth above, and he admitted at the first trial that he had told Jody Harrington shortly after the shooting that only he and Lamp were involved, he also admitted telling police that he never made such a statement to Harrington. Further, Detective Sergeant Averill testified that Simpson had remained consistent in the version of events he claimed to have witnessed, and stated that Simpson‘s testimony at defendant‘s first trial had been consistent with this version of events. Had Simpson‘s inconsistent written statement... been admitted under
MRE 806 , the jury would have had a very different view of Simpson‘s credibility. [Id.]
Because the evidence against defendant is by no means overwhelming, and because the excluded evi
Even assuming that the issue was not properly preserved because, although defendant objected to the exclusion of the evidence on the basis of
Alternatively, the error certainly and seriously affected the fairness, integrity, and public reputation of the judicial proceeding. The jury was affirmatively apprised that two witnesses previously testified against the defendant (one testified that he saw defendant
IV. CONCLUSION
The trial court abused its discretion in allowing the jury to hear the hearsay testimony of two critical witnesses, while excluding their recanting statements, and in denying defendant‘s motion for a new trial. Therefore, I would affirm the judgment of the Court of Appeals that reversed the trial court and remanded this case for a new trial.
CAVANAGH and KELLY, JJ., concurred with MARKMAN, J.
Notes
In addition, Lamp testified that when he arrived at defendant‘s house, Simpson was already there and Miller arrived later. However, Simpson testified that when he arrived at defendant‘s house, Miller was there, and Lamp arrived later. Meanwhile, Mock testified that defendant and Lamp came to her house to pick Miller up, but that Miller was not ready then, so he went to defendant‘s house later. Finally, Zantello testified that Simpson was at defendant‘s house before Miller.
When a hearsay statement, or a statement defined in
(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
* * *
(d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
Given that the trial court excluded evidence, all that was required to preserve the issue under
If the error was constitutional, preserved error, the prosecutor would be required to prove that the error was harmless beyond a reasonable doubt. People v Anderson, 446 Mich 392, 406; 521 NW2d 538 (1994). If the error was non-constitutional, preserved error, defendant would be required to prove that it was more probable than not that the error was outcome determinative. People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999). As discussed in part II, it is unnecessary to determine whether the error was constitutional or non-constitutional, or preserved or unpreserved, because even assuming that it was unpreserved, non-constitutional error, defendant is entitled to relief.