People v. Forgash

38 Mich. App. 474 (1972) 196 N.W.2d 873 PEOPLE v. FORGASH Docket No. 10620. Michigan Court of Appeals. Decided February 23, 1972. Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Eugene C. Penzien, Prosecuting Attorney, for the people. Wilson & Stone, for defendant. Before: R.B. BURNS, P.J., and FITZGERALD and V.J. BRENNAN, JJ. Leave to appeal denied, 387 Mich 799. V.J. BRENNAN, J. 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 *476 was alleged to have occurred either on the evening of Saturday, February 21, 1970, or the early morning of Sunday, February 22, 1970. 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[1] of the defendant with the court ruling that it was admissible for impeachment purposes. The full text of the statement admitted is as follows: "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 somethink 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. *477 In this case, there was an insufficient contradiction between the witness's testimony and his prior statement to warrant the introduction of that statement for impeachment purposes. On the stand the witness testified that he had no recollection whatsoever regarding whether or when he gave the defendant his telephone number on a piece of paper. The witness's prior statement to the police officer was not a definite statement to the contrary but rather was qualified. Most of the text of the witness's statement to the police was given in definite, positive terms; however, the sentence dealing with giving the defendant his telephone number was decidedly qualified. This is not a sufficient contradiction from which the jury could infer anything regarding the truthfulness of the witness.[3] While there is some precedent that prior statements of witnesses may be admitted in criminal cases under the theory of past recollection recorded,[4] the statement here introduced does not even meet the qualifications for admission into evidence under that theory. In order for a statement to be admitted under that theory there must be some showing that the statement was accurate when given. It is generally desirable that the statement be made contemporaneous with the events described therein, or at least shortly thereafter. Koehler v Abey, 168 Mich 113 (1911). The statement here introduced was made almost four months after the events described, and therefore its admission into evidence may not be supported on this theory. We do not reach the question of the possible violation of defendant's rights of confrontation and *478 cross-examination by the admission of statements under the "past recollection recorded" theory. While this is a serious constitutional question, a broad prohibitive rule may not be the best course to follow. For example, in a metropolitan area such as Wayne County, a pathologist who is required to perform autopsies on numerous victims of homicide during the course of any given year could not possibly retain an independent recollection of each examination. Yet his testimony is an indispensable factor in establishing the corpus delicti in any prosecution of such homicide cases. A blanket exclusion of testimony based on "past recollection recorded" might well render any prosecution impossible. We see other situations where such testimony would have to be admitted, but to enumerate now is unnecessary. Reversed and remanded. FITZGERALD, J., concurred. R.B. BURNS, P.J. (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. NOTES [1] 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. [2] Referring to defendant, Richard Forgash. [3] See Hill v Harbor Steel & Supply Corp, 374 Mich 194, 215 (1965). [4] 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).