People v. Coates , 40 Mich. App. 212 ( 1972 )

40 Mich. App. 212 (1972) 198 N.W.2d 837

PEOPLE
v.
COATES

Docket No. 11242.

Michigan Court of Appeals.

Decided April 26, 1972.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Patricia J. Boyle, Assistant Prosecuting Attorney, for the people.

McCall, Matish, McGuire & Sapala, for defendant on appeal.

Before: HOLBROOK, P.J., and T.M. BURNS and DANHOF, JJ.

T.M. BURNS, J.

Defendant, charged with breaking and entering an occupied dwelling house contrary to MCLA 750.110; MSA 28.305, was convicted upon a jury verdict and sentenced to 10 to 15 years in prison. Defendant appealed as of right and his conviction was affirmed in People v Coates, 11 Mich App 537 (1968). Defendant then filed a delayed motion for a new trial, which the trial judge denied on October 14, 1970. An application for leave to take delayed appeal was filed, which was granted by this Court on June 24, 1971.

Defendant first contends that the trial court erred in allowing plaintiff to read in the presence of the jury the prior inconsistent statements of an alleged accomplice.

Bernard Vinson, the alleged accomplice of the defendant, testified at trial that although he had brought the defendant with him in the car, he entered the dwelling house alone, having let defendant out of the car before he got to the scene of the crime. After laying a foundation, the prosecutor introduced a prior inconsistent statement made by the witness to the effect that both he and the defendant had committed the crime charged. Defendant now contends that it was error for the trial court to allow the prosecution to impeach its own witness.

MCLA 767.40a; MSA 28.980(1) grants to the prosecution the right to impeach witnesses that it is under a duty to call. Although the prosecutor must indorse all res gestae witnesses, he does not have to indorse or call accomplices. Defendant therefore asserts that the statutory exception to the rule that a party may not impeach his own witness contained in MCLA 767.40a; MSA 28.980(1) does not apply.

Our review of the record reveals that there was no objection to the prosecution's questions impeaching the accomplice's testimony. We will not, therefore, discuss this issue since it was not properly preserved for appeal.

Defendant also contends that the accomplice's repeated responses to the effect that he recalled none of the questions or answers he had previously given to the police prevented the prosecution from further impeachment through the use of prior inconsistent statements.

Defendant relies on People v Durkee, 369 Mich 618, 625 (1963). In Durkee, however, the witness could not even remember being questioned. That is not the case here; defendant could remember being questioned, he just could not remember the specifics of the individual questions and the answers he gave. We see no reason for the exclusion of impeachment testimony under these circumstances, and defendant presents no authority requiring us to do so. We find no merit in defendant's position.

Defendant's next contention is that his constitutional right to confrontation was abridged by the admission of the accomplice's prior inconsistent statements. However, the statements here were not used as substantive proofs but only for impeachment purposes, which is entirely proper. People v Redman, 17 Mich App 610, 613 (1969). However, the trial court failed to instruct the jury that the testimony was to be used for impeachment purposes only. Defendant contends that this is error despite the fact that no request for such instruction was made.

MCLA 768.29; MSA 28.1052 provides in part:

"The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused."

This Court in People v Guilinger, 30 Mich App 711, 715 (1971), refused to give a limiting instruction on the use of testimony used to impeach a res gestae witness.

"Although cognizant of the lack of agreement by this Court on the issue presented, until directed by the Michigan Supreme Court we choose to follow the rule that, absent request, reversible error is not committed by the trial court's failure to give a limiting instruction on the use of testimony introduced to impeach a res gestae witness."

In the instant case it was an accomplice's testimony that was impeached rather than merely that of a res gestae witness. However, the Court in Guilinger, supra, in arriving at its decision, analyzed several cases which involved accomplices rather than res gestae witnesses. In its opinion, the Court found no basis for distinguishing the two situations. Nor do we. We therefore hold that the failure to give the instruction is not reversible error absent any request therefor.

Defendant finally contends that the trial judge erred by indicating to the jury, in his instructions, that he had been requested by the defendant to instruct them relative to defendant's failure to testify.

This Court in People v Thomas, 7 Mich App 519, 533 (1967), while acknowledging that identification of the party requesting an instruction is improper, found no deprivation of substantial rights or a miscarriage of justice. See also People v Waters, 16 Mich App 33, 37 (1969); People v Carter, 28 Mich App 83, 103 (1970). While we agree that it was improper for the trial court to identify defendant as the party requesting the instruction, we find no prejudice to the defendant through the court's inadvertent error.

Affirmed.

DANHOF, J. (concurring).

I concur in the decision of Judge BURNS, recognizing in doing so that it is inconsistent with People v Danles, 15 Mich App 510 (1969) which I signed. Danles was based on People v Eagger, 4 Mich App 449 (1966), which at that time was the sole pronouncement of this Court on requiring the trial court, absent a request, to instruct the jury that prior inconsistent statements of a witness could be used for impeachment purposes only. Subsequent to Danles we have had People v Virgil Brown, 15 Mich App 600 (1969), People v Budary, 22 Mich App 485 (1970) [which this writer authored], the second People v Virgil Brown, 28 Mich App 248 (1970) [this writer being a member of the panel], and finally People v Guilinger, 30 Mich App 711 (1971). I now concur with the decision of this Court in Guilinger, supra, p 715, which stated:

"We choose to follow the rule that, absent request, reversible error is not committed by the trial court's failure to give a limiting instruction on the use of testimony introduced to impeach a res gestae witness."

I concur with Judge BURNS in applying the same rule to the testimony of an accomplice.

Judge HOLBROOK concurs in this opinion for the reason that he also signed People v Danles, 15 Mich App 510 (1969).