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Keywords

defendantstatuteappealtrialtestimonyfelonyprosecutorhearsay
defendantappealtrialtestimonyfelonyprosecutorgood faithjury triallife imprisonment

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People v. Etchison, 123 Mich.App. 448, 333 N.W.2d 309

Facts

Defendant was convicted by a jury of first-degree murder, assault with intent to commit murder, and felony-firearm, leading to two life sentences and an additional two years for the firearm charge. During the trial, defendant presented six alibi witnesses, including Roosevelt Hunt, who testified that they were with the defendant on the night of the crime. The prosecutor introduced rebuttal testimony from Officer Belote, which was challenged by the defense as improper hearsay.

Defendant was convicted by a jury of first-degree murder, M.C.L. § 750.316 ; M.S.A. § 28.548, assault with intent to commit murder, M.C.L. § 750.83 ; M.S.A. § 28.278, and felony-firearm, M.C.L. § 750.227b ; M.S.A. § 28.424(2). Thereafter sentenced to two terms of life imprisonment on the murder and assault charges and two years on the felony-firearm charge, defendant appeals as of right.

Issue

Whether the trial court erred in allowing improper rebuttal evidence, whether the prosecutor's misstatements during closing argument warranted reversal, and whether the court erred in refusing to instruct the jury on attempted felony-firearm and attempted assault with intent to commit murder.

1 2 3 4 First defendant claims that the trial court erred in allowing rebuttal evidence which did not contradict the exact testimony of an earlier witness. Defendant presented six alibi witnesses, one of whom was Roosevelt Hunt. They all testified that they were present with defendant at defendant's residence on the evening in question. The prosecutor asked Hunt if he remembered certain of the alibi witnesses being at the house. However, he did not ask Hunt if he remembered Ronnie Armstrong's being there. Officer Belote testified in rebuttal to Hunt's testimony.

Rule

The only type of contradictory evidence admissible on rebuttal is that which directly tends to disprove the exact testimony given by a witness. Additionally, an instruction under the general attempt statute is appropriate only where no express provision for attempt exists in the statute under which a defendant is charged.

The only type of contradictory evidence admissible on rebuttal is that which directly tends to disprove the exact testimony given by a witness. People v. McGillen # 1, 392 Mich. 251, 220 N.W.2d 677 (1974) ; People v. Lee Dyson, 106 Mich.App. 90, 307 N.W.2d 739 (1981) .

Analysis

The court found that the rebuttal testimony from Officer Belote was improper as it did not contradict Hunt's testimony directly. However, the court determined that the error did not result in a miscarriage of justice due to the presence of multiple alibi witnesses. Regarding the prosecutor's misstatements, the court ruled them as minor and harmless. The court also concluded that there is no offense of attempted felony-firearm and that the refusal to instruct on attempted assault with intent to commit murder was not reversible error.

The standard of review of improperly admitted rebuttal testimony is whether the error was so egregious as to result in a miscarriage of justice. People v. Bell, 101 Mich.App. 779, 300 N.W.2d 691 (1980) . We hold there was no reversible error. There was no evidence of lack of good faith by the prosecutor and the remark, occurring after a seven-day jury trial, should more properly be construed as inadvertent and isolated, rather than deliberately or grossly prejudicial.

Conclusion

The Court of Appeals affirmed the defendant's convictions, finding no reversible errors in the trial court's decisions.

Affirmed.

Who won?

The People (State of Michigan) prevailed as the court upheld the defendant's convictions.

Affirmed.

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