*1 297 Wright 1977] v WRIGHT PEOPLE Opinion the Court Recordings— Conversations—Tape 1. Searches and Seizures — Precedent. Search Warrant —Case suppress tape recording to not It was not error for a trial court police narcotics a defendant a conversation between to obtain a been a failure search officer because there had requiring precedent a warrant for third- warrant where case monitoring party conversations came after the electronic prospective given recording and was effect the conversation only. Recordings Tape Testi- —Rebuttal Law — 2. Evidence —Criminal Manipulation mony Crime — of Commission of —Proof Evidence. taped between a defendant and a conversation admission as rebuttal narcotics officer into evidence prove prejudicial to the commis- where the tended error its introduction as rebuttal evidence of the crime itself and sion attempt by prosecution by prosecution was an greatest impact jury. manipulate on the its case for the 3. Evidence —Rebuttal Evidence —Definitions. broadly evidence introduced defined as Rebuttal evidence [1, [2] [3] [4] [5, [7] [8] Admissibility 25 Physiological Admissibility 2] 29 29 Am Jur 29 Am Jur 29 Am Jur 81 Am Jur result 1306. Am Am 29 Am Jur 21 Am Jur Am Jur Jur Jur will be admissible 2d, Drugs, 2d, 2d, 2d, Evidence 250. 2d, Evidence 535. 2d, Evidence 831. 2d, Witnesses References of sound or of lie 2d, 2d, Statutes §§ Evidence § psychological Evidence §§ Criminal Law § detector test taken Narcotics and recordings § § § for Points 294, §§ in evidence. 53 ALR3d 269. 408, truth and 295. in evidence. 430. 587. 436. Poisons in Headnotes deception upon stipulation §§ 58 ALR2d 1024. 16, 1005. 17, tests. 23 20. ALR2d party contradict, explain disprove repel, one evidence produced party tending directly the other weaken or impeach the same. *2 4. Evidence —Foundation—Prior Inconsistent Statements. necessary proof lay It is of a foundation for statements. Delivery Attempted Delivery
5. Criminal of Law — Heroin — of Heroin —Controlled Substances Act —Statutes. delivery attempted There can be no crime heroin in Michi- gan expressly merges because the Act Controlled Substances (MCLA attempt completed 335.304; with the offense MSA 18.1070[4]). Attempt Attempts—Stat- 6. Criminal Law —General Statute — utes. general attempt applies only express provi- statute where no (MCLA punishment attempt sion is made for law of an 28.287). 750.92; MSA 7. Evidence —Lie-Detector Tests.
Results of tests lie-detector are inadmissible as evidence. by Beasley, J. Surprise—Presentation 8. Witnesses —Criminal Law — of Evi- dence —Prior Inconsistent Statements. Surprise witness, alone, standing require should not exclu- impeaching surprise; sion of the evidence which causes the no weapon important is more to effective cross-examination than surprise. Appeal Calhoun, from Creighton Coleman, R. J. 7, 1976, Submitted December at Rapids. Grand (Docket 24830.) No. Decided March 1977. Wright
Ronnie was convicted of delivery her- oin. Defendant appeals. Reversed.
Frank J. Kelley, Attorney General, A. Robert Derengoski, General, Rae, John J. Solicitor Prose- cuting Attorney, and Sindt, Conrad Assistant Pros- ecuting Attorney, people. People Wright Opinion op the Court Jr.,
Leonard State Esquina, Assistant Appellate Defender, for defendant. Burns, J., Quinn
Before: R. B. P. and Beas- ley, JJ. Burns, appeals
R. B. his P. Defendant convic- heroin, 335.341; tion MCLA by jury delivery 18.1070(41). MSA surrounding circumstances defendant’s ar-
rest alleged involved the sale defendant codefendant packets” of seven "dime heroin ato police trooper. state The defense mainly estab- lished through the codefendant’s question, she was not at the residence and that part drug she did not sale. any take Defendant did not testify.
In plaintiff rebuttal this testimony, offered into tape recording purported evidence that to contain an on-the-scene conversation between de- fendant, codefendant, and the which officer tended to establish that the offense had been committed. Defense on timely objected counsel numerous grounds tape, to admission this and these objections are renewed on appeal.
We
that
first note
the trial court did not err in
not
tape recording
to
suppressing
for failure
Beavers,
People
v
obtain a
554;
warrant.
393 Mich
(1975),
We agree with
that
tape
testimony
admission
as
rebuttal
amounted to
this
prejudicial
error on the facts of
App 297
300
74 Mich
Opinion op the Court
traditionally
forbidden
Michigan courts have
case.
its case for
prosecution
manipulate
to
greatest
impact
jury:
on the
up
testimony
proper
divide
on
is not
to
"[I]t
case,
nothing
rest their
people propose
to
which
of the crime itself
prove
the commission
which tends
surroundings
classed as
can be
rebut-
or its immediate
ting
circumstances,
if
ordinary
at all”.
evidence under
(1885).
321, 323;
the to be 318, 320; 239 Rehearing), NW2d Mich (1976). clearly plain- trial reveals that transcript of procedure, tiff did not follow fur- ther reveals that the introduction complete surprise the defense. Accordingly, we reverse the conviction. allegations
Another of of error defendant’s re- quires elaboration because of possibility that question arise on retrial and may because of calling advisability of an anomalous statutory provision to the attention of bench and bar. judge
The trial instructed the it jury that could reach possible guilty three verdicts: of delivery of heroin; heroin; guilty possession or not guilty. Defense timely excepted counsel to the failure of on judge requested instruct certain other verdicts, among them "attempted of her- delivery oin”.
It is necessary to observe that there can be no crime "attempted delivery heroin” in Michi- gan. The relevant section of the Controlled Sub- Act, 335.304; 18.1070(4), stances MCLA MSA de- actual, fines "delivery” as "the constructive attempted from 1 person transfer another added.) controlled (Emphasis By substance”. express section, and unequivocal language of this Legislature seen merge attempt fit to with completed offense. general statute,
Additionally, attempt MCLA 28.287, 750.92; MSA is inapplicable. The statute expressly it only applies recites "when no express provision punish- is made law for the attempt”. 335.304; ment such In MCLA MSA 18.1070(4) made; thus, such provision has been *5 App 297 74 Mich 302 Beasley, J. by Dissent substance is a controlled delivery” "attempted Banks, 51 Richard People v sequitur. non See (1974). 461 685; 216 NW2d App Mich Defendant comment. requires issue One further polygraph the admission complains now about stipulation upon trial at into the record evidence parties. of the 64, 68; 155 NW2d Frechette, 380 Mich
People v "There can be no follows: 830, (1968), as 832 holds the re- jurisdiction this in present doubt at Stone v inadmissible.” are of lie-detector tests sults (1951), 172, 174 606, 611; 50 NW2d Earp, 331 Mich context of specific in the unmistakable just as polygraph stipulations: the direc- the fact at unmindful of "We are not court, agreed to submit parties
tion of the trial the direction, agreement, court tests, voluntary but whether coercion, tests do not results of such competent evidence.” attain the stature Michigan. in the law These cases are still enumerated, prejudi- previously For the reason is conviction testimony, defendant’s cial rebuttal reversed. J., concurred.
Quinn, (dissenting). hold that majority J. Beasley, evidence, the purpose error to admit it was codefend- the alibi impeaching a which ant, recording of conversation par- defendant, and the officer codefendant holding upon rests the failure ticipated. requiring with the rule comply prosecutor before the introduction foundation (On Gunne, Re- v statements. 603, 318, 320; 239 NW2d hearing), 66 Mich People Wright 303 v Beasley, Ebel (1976), Saginaw County 604 Board of Road Commissioners, 598, 608; 386 194 Mich 365, NW2d (1972), Hills, Scholnick v Bloomfield 187, 195; (1957). NW2d The purpose of this latter rule said be "to avoid *6 the impeached”. witness to be This holding also upon rests an prosecutor inference that the im properly manipulated proofs its order of great impact est on jury. the disagree
I with both reasons underlying the majority’s holding; surprise the of a witness does require not a ruling prosecutor that the unfairly presented evidence, the and the facts of this case do not compel an inference prosecutor that improperly manipulated proofs. the order of
Surprise witness, alone, standing does not require a ruling prosecutor that unfairly pre- sented the evidence. "surprise” standard was People Gunne, enunciated by case of supra at 320: purpose "The requiring of the rule asking of questions foundational is to surprise avoid of the wit- impeached. ness to be once purpose accomplished This is questions posed. are Answers the witness required. are not deny may He questions answer such prior that made, statements were may explain
he attempt statements in an nullify or impeaching lessen their nature.” The primary purpose of both cross-examination impeachment is discovery of truth. No weapon is more important to effective cross-exami- nation surprise. than The situations in which the element served to reveal the truth are legion. The rule adhered to by majority been criticized for interfering with pursuit truth: App 297 Beasley, (Eng, Bing Brod & Queen’s Case "The rule of [2 England ago abrogated in where it was 1820)] long by most Ameri- expounded adhered to first but is still quite part on the insecure in courts. While it rests can rule, it the best evidence
ground required by it ground being on justification also finds some often, Very witness. inherently fair the conscientious places great a however, rule the enforcement way cross-examination in the of effective obstacle witness, explains and that fact slippery and dishonest English England. precedent should its abolition enlight- a more compel of the rule and a modification country as some decisions have approach in this ened recognized. moment, precedents recent despite At the these continue to example most state courts England, regard to Queen’s Case without much apply the rule of But relaxation of the rule. justifying considerations application of the rule is encoun- rigid relaxation (6th ed), 183- 4 Jones on Evidence tered some cases.” omitted.) (Citations 185. *7 appro- is especially the rule Reconsideration require exclu- priate interpreted if the rule is question. previous sion of the evidence now forth in of the officer had set testimony police time, parties alleged to the place detail the that the codefend- testimony, conversation. After took denied that the conversation ever freely ant if further place. Form is exalted over substance of that regarding tape required foundation same conversation.1 very divulge court the
The record before this does not the for rebuttal why prosecutor reason reserved Nevertheless, this Court tape question. the regarding inference of fact power draw an However, disagree GCR 820.1. I reason. that majority. the inference drawn with tape authenticity is considered The examination of the separate matter. Wright Beasley,
The record indicates both the introduction reproduction quality tape of the have been challenged grounds. on various Given these evi- problems, prosecutor may dent have decided tape possible. should be if avoided at all Such a decision would be reasonable since the tape’s presented information would still be through police testimony officer who participated taped in the conversation. prosecutor’s underlying
The factors decision changed when one codefendant chose to take the stand. The codefendant’s conflicted di- rectly with that of officer; she denied that either she or her codefendant were at the place alleged by essence, In the officer. her testi- mony presented alibis for both herself and her codefendant. In circumstances, these it would be prosecutor reasonable for the to consider the merit offering tape by way in evidence of rebuttal impeach this alibi witness. Rather than im- proper prosecutorial manipulation, I would con- appropriate get sider this an effort to at the truth. summary, In I do not believe that under the case, facts of this there was a lack of tape foundation for admission of the into evidence improper manipulation and neither would I find proofs by prosecution. the order of But, if, as majority precedent requires finds, the able a find- ing of a lack of foundation for introduction of the evidence, into then the time has come for our Supreme revisit, Court to reconsider and reverse prohibits ill-founded, archaic rule that trial *8 attorneys using from the element of destroy perjured testimony.
I would vote to affirm the and, conviction there- respectfully fore, must dissent.