People v. Losey

Per Curiam. Improper rebuttal testimony is again the focus of our inquiry. Despite our admonitions in People v McGillen #1, 392 Mich 251; 220 NW2d 677 (1974), and People v Bennett, 393 Mich 445; 224 NW2d 840 (1975), we find we must again reverse a conviction on this basis. I Maria Losey (also known as Helen Losey) was found dead in her home on February 11, 1977. She had suffered two .22 caliber bullet wounds. The defendant, her ex-husband, was charged with murder as an aider and abettor 1 and with conspiracy to commit murder. 2 At the subsequent jury trial, Ronald Heath testified that the defendant had asked him whether James Lafler could get rid of his wife. He brought Lafler to the defendant’s house for a meeting. Money was eventually transferred by the defendant to Lafler. Lafler discussed killing Mrs. Losey with Heath. Later, Lafler was seen with a .22 caliber rifle which he threw into the Kalamazoo *348 River, and he told William Snyder he had killed a Lansing woman. Snyder saw Lafler in possession of a check from the defendant. The jury convicted the defendant of the conspiracy charge, but acquitted him of murder. On June 27, 1978, he was sentenced to imprisonment for a period of from 40 to 60 years. The Court of Appeals affirmed the conviction. People v Losey, 98 Mich App 189; 296 NW2d 601 (1980). II On cross-examination of the defendant, the prosecutor inquired as follows: ”Q. Mr. Losey, do you know Maria Seeley? "A. The name doesn’t mean anything to me. ”Q. Do you know whether or not she may have been a friend of your ex-wife, Helen? "A. I have never heard the name Seeley. ”Q. You don’t specifically recall going to Helen’s house on Dibble Street on the 4th of February, 1977? "A. I don’t recall it, specifically. ”Q. Do you recall going there on or about the 4th of February, when Helen was talking on the 'phone? "A. No, I don’t recall it. ”Q. Do you recall Helen screaming on that day? ”Q. Do you recall Helen screaming at that time? "A. There’s been several times that she screamed into the 'phone. "Q. And was one of them about that time? "A. Could possibly have been. It happened several times. ”Q. Do you recall trying to take her pants off at that time? "A. No. *349 ”Q. Do you recall her speaking into the 'phone, 'He doesn’t believe me. I’m on my period?’ "A No. "Q. Do you recall her speaking into the 'phone, 'He wants to smell me?’ "A. You are getting a little preposterous. ”Q. Did you try to take her pants off on or about that day? "A. I have never tried to take her pants off.” The prosecutor then proposed Mrs. Seeley as a rebuttal witness for "the impeachment of the defendant”. Defense counsel objected that Mrs. Seeley’s testimony would not be within the "stringently limited” nature of rebuttal. Mrs. Seeley was permitted to testify. ”Q. Do you recall whether you talked to her on the telephone the first week of February, 1977? "A. Yes. ”Q. Do you recall the exact date? "A. The 4th. ”Q. Fourth of February? "A. Yes. "Q■ And do you recall if you called her or she called you? "A. I called her. ”Q. And do you recall what time this was? "A. I guess around 1 o’clock in the afternoon. ”Q. At any time while you were talking to Helen on the 'phone, did she become upset? "A. Yes. ”Q. And how did you feel , that she was upset? "A. Well, I asked her. I said, 'What is going on?’ "Q. Why did you ask that? "A. Because she was screaming. "Q. Do you recall what she was screaming? "A. She told me Orville was there. ”Q. And did she say why she was screaming? *350 "A. She said he was trying to take off her pants. "Q. Orville was trying to take off her pants? "A. Yes. ”Q. Did she say anything else about his trying to take off her pants? "A. Yes. ”Q. What did she say? "A. She told me he didn’t believe she got her period. "Q. Did you hear anyone else’s voice? "A. No. "Q. Did she say anything else other than he was trying to take off her pants? "A. No.” The Court of Appeals said: "Defendant claims that the rebuttal testimony was impermissible extrinsic impeachment on a collateral matter, since the prosecutor was bound by defendant’s denials on the matter. "The prosecution argues contrariwise that the inquiries made of defendant regarding the telephone conversation between his ex-wife and the rebuttal witness were relevant to defendant’s motive and that therefore, the matter was not collateral and the rebuttal testimony was proper. "The specific questions asked defendant concerning whether he had attempted to remove the victim’s pants while .she conversed with Maria Seeley on the telephone on February 4, and whether the decedent was screaming at that time. To rebut defendant’s denials that such had occurred, the prosecution called Maria Seeley, who testified that she spoke on the telephone with the victim on February 4. Seeley said the victim sounded upset and began to scream when her ex-husband attempted to remove her pants and told Seeley that defendant did not believe her explanation that she was 'on her period’ as her reason for resisting his overtures. "It is not seriously open to question that motive was an issue in the case, more narrowly defendant’s hatred *351 of his ex-wife on which evidence was previously adduced in the prosecution’s case in chief. The cross-examination above referred to was relative to motive and provided the vital connective link to a material issue being tried which would suffice to render the now objected to rebuttal testimony admissible. People v McGillen #1, 392 Mich 251, 266-268; 220 NW2d 677 (1974), People v Bauman, 332 Mich 198, 206-207; 50 NW2d 757 (1952). As such, we decline to reverse on this ground.” 98 Mich App 201-202. We entered an order directing the prosecutor to show cause why the defendant’s conviction should not be reversed on the basis that the introduction of improper rebuttal testimony prejudiced the defendant so as to deny him a fair trial. 411 Mich 864 (1981). Ill Witness Seeley’s testimony, whether considered relevant to an issue in the case or not, was inadmissible under at least one of the related rules governing rebuttal testimony. As this Court made clear in People v Quick, 58 Mich 321, 322-323; 25 NW 302 (1885), the prosecutor may not divide the evidence on which the people propose to rest their case, saving some for rebuttal. Insofar as the Court of Appeals is correct in holding that Ms. Seeley’s testimony was relevant to the question of motive, the rule of Quick was violated. 3 The issue of motive had been introduced in the prosecutor’s case in chief, and nothing in the defendant’s case made *352 Ms. Seeley’s testimony any more relevant to that issue. Of course, the rebuttal evidence also contradicts the defendant’s testimony on cross-examination, and its admission is defended on that ground. 4 However, as we said in People v Bennett, 393 Mich 445, 449; 224 NW2d 840 (1975), the device of eliciting a denial on cross-examination may not be used to inject a new issue into the case. Similarly, cross-examination cannot be used to revive the right to introduce evidence that could have been, but was not, introduced in the prosecutor’s case in chief. 5 *353 If, on the other hand, the rebuttal testimony was not admissible in the prosecutor’s case in chief because it was not relevant to motive, then its admission in rebuttal to contradict the defendant’s denials on cross-examination violated the firmly established rule that extrinsic evidence may not be used to impeach a witness on a collateral matter. People v Teague, 411 Mich 562, 566; 309 NW2d 530 (1981). In his response to our order, the prosecutor concedes that the rebuttal was error, but asks that we nevertheless affirm because the evidence against the defendant was "overwhelming”. We cannot accept the prosecutor’s characterization of the evidence as overwhelming. The evidence as to conspiracy relied largely on the testimony of the uncharged and immunized co-conspirator Heath. The other co-conspirator, Lafler, was acquitted of conspiracy by a different jury. We will therefore not speculate as to what effect this improper rebuttal might have had on the jury in this case. In lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the defendant’s conviction and remand this case to the Eaton Circuit Court for a new trial. Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. Footnotes [1] MCL 750.316; MSA 28.548. [2] MCL 750.157a; MSA 28.354(1). [3] We recognize that there may be occasional cases in which evidence that might have been admissible in the prosecutor’s case in chief could be admitted in rebuttal. The prosecutor may not become aware of the evidence until after having rested. Or evidence that would have been repetitive on a point thought not to be seriously contested might be allowed in rebuttal if the prosecutor is genuinely surprised by the defendant’s focusing on the point in defense. [4] Bauman, supra, 332 Mich 205-206, does lend support to the Court of Appeals analysis. There we said: "It is urged that the court erred in permitting witnesses Lawrence A. Geise and Anna Geise to testify as to a claimed quarrel between defendant and his wife in 1940; and in permitting the testimony of Waldo Pease as to a claimed quarrel between defendant and his wife during the year 1935. The record shows that on cross-examination defendant denied that he ever hit, kicked or threatened to kill his wife. It appears that Waldo Pease testified that 3-1/2 years before, he saw defendant chasing his wife down a sidewalk. 'She was running and screaming, hollering, "He is going to shoot me.” I seen something in his right hand. What it was I don’t know, I saw them running in this particular area, maybe 10 or 15 seconds.’ It also appears that Lawrence and Anna Geise testified that in the fall of 1940 defendant and wife visited their farm. When the Baumans left the house, Geise and wife heard Mrs. Bauman scream outside in the orchard. They looked out and saw Harold Bauman hitting and kicking his wife. Mrs. Bauman was lying down on the sand screaming, 'Don’t kill me, don’t kill me, Harold.’ This event took place 2 or 3 rods from the house. We note that defendant Bauman did not take the witness stand to deny any of this testimony given in rebuttal. The trial court permitted the introduction of this evidence for the purpose of impeaching defendant’s truth and veracity. In our opinion it was not error to permit the jury to hear this evidence. It was proper rebuttal evidence.” Bauman contains no legal analysis or citation to authority for its conclusion. We do not think the quoted portion of Bauman is consonant with what this Court has said in later cases, such as Bennett, supra. [5] There will, of course, be cases in which rebuttal evidence may properly be used to contradict testimony elicited on cross-examination where the cross-examination merely drew out the details of matters raised by defense witnesses.