Michigan Court Of Appeals Holds Res Gestae Witness Evidence Not Error

On October 22, 2015, the Michigan Court of Appeals held in a criminal case involving assault with intent to commit murder that the trial court and the prosecution did not commit error with respect to evidence offered against defendant concerning a res gestae witness.

In People v Steanhouse, Docket No. 318329, the Michigan Court of Appeals addressed a number of issues involving a res gestae witness at trial, including:

  1. whether the prosecution committed error by failing to acknowledge a res gestae witness during their case-in-chief and by objecting to the defense calling this witness during its case-in-chief, thereby depriving defendant of his right to present a defense;
  2. whether the trial court erred in excluding a res gestae witness's hearsay statement; and
  3. whether the trial court erred in allowing the prosecution to use a witness's prior inconsistent statement as substantive evidence of defendant's guilt.

The Court first recited the facts of the case:

Defendant and Antonin (“Anton”) Valoppi were good friends and often smoked marijuana in the basement of the home that Anton shared with his parents, Rory and Suzanne Valoppi. In September 2011, the Valoppis’ residence was robbed. Two weeks later, defendant told Anton that he knew the individuals who had broken into the Valoppis’ home and offered to retrieve the stolen items if Anton paid him. According to defendant, he discovered that Derrin Evans had committed the robbery and retrieved the items from him. Defendant partially returned the stolen property to Anton, who gave him “reward” money in return. Defendant testified that he subsequently gave a portion of the “reward” money to Evans.

On October 16, 2011, defendant came to the Valoppi residence to smoke marijuana with Anton. Anton and Rory did not recall anyone except defendant entering their home. However, defendant testified at trial that he and Evans both went to Anton’s home to smoke marijuana. When defendant arrived, Anton and defendant went into the basement. Anton then went upstairs to retrieve his box of marijuana and returned to the basement. The next thing that Anton remembered was waking up with his throat “hanging open” and seeing defendant standing in front of him while staring at him, “wait[ing] for [him] to die.” Defendant made no attempt to help Anton.

Anton ran upstairs to get help and told Rory “[t]hat his friend tried to kill him.” While Rory and Suzanne were helping Anton, Rory saw defendant run up the stairs and out the side door of their home even though Rory shouted at defendant for help. Suzanne asked Anton what happened, and Anton replied, “A.J. stabbed me.” In response to questions by the 911 operator, Anton indicated that A.J. Steanhouse committed the assault and provided defendant’s address. Anton did not actually see who assaulted him, but he believed that defendant was the only other person in the basement when the assault occurred. Additionally, Anton believed that he was struck in the head with a wrench before his throat was slit, drawing this inference from the fact that he sustained a skull fracture and that he later found a wrench with “hair sticking out of [it].”

According to defendant, Evans was the perpetrator of the assault. When Anton, who was “past [sic] over the level of being high,” went upstairs, Evans told defendant that he was going to rob and kill Anton. After Anton returned to the basement, Evans attacked him, cut his throat, grabbed some marijuana and pills, and left the residence. Defendant then rolled Anton over, at which time the knife came out of his neck, and called Anton’s name, waking Anton up. Defendant testified that Anton accused defendant of stabbing him, and defendant excitedly repeated that he was not the one who assaulted Anton. Defendant then ran upstairs and left the residence because he was “under the influence and high” and shocked and hurt that Anton would believe that defendant “would do something like this to him . . . .”

After the incident, Evans provided two statements during separate interviews with a police detective. In his first statement, provided after the detective indicated that defendant had implicated Evans as the perpetrator of the assault, Evans stated that he was not present at the scene of the assault. Evans provided his second statement four months later while he was in custody for a separate offense. After the detective informed him again that defendant had implicated him in Anton’s assault, and the detective stated that he knew that Evans was present when the crime was committed, Evans admitted that he was present in the basement of Anton’s home at the time of the assault, but he claimed that defendant slit Anton’s throat, after which Evans ran up the stairs and left the residence . . . .

On the first day of the trial, before jury selection and outside the presence of the prospective jurors, Evans’s appointed counsel informed the trial court that he had discussed the Fifth Amendment right against self-incrimination with Evans, and that he believed that Evans could incriminate himself if he testified given the inconsistencies between his two statements and his potential testimony that he was present at the scene of the crime. Evans’s attorney stated that he had advised Evans not to testify, and that Evans had decided to invoke his Fifth Amendment privilege. Based on Evans’s invocation of his Fifth Amendment privilege, the trial court ruled that Evans was an unavailable witness and did not compel Evans to testify. Subsequently, defendant moved to admit the statements that Evans made to the police pursuant to MRE 804(b)(3) and MRE 804(b)(7). The trial court ruled that Evans’s statements were not admissible under either hearsay exception, finding that neither of Evans’s statements was against his penal interest and that the statements lacked sufficient indicia of trustworthiness . . . .

During trial—after McIntrye testified that defendant stated, when he came home on the night of the incident, that he was at Anton’s home and that Anton was stabbed without specifying who stabbed Anton—the prosecutor introduced a brief excerpt of McIntyre’s police interview. During the interview, McIntyre initially told the detective that defendant did not admit that he stabbed Anton on the night of the assault, but she later told the detective that defendant admitted that he stabbed Anton. After she left the police station, McIntyre immediately called the detective and stated that she lied when she said that defendant admitted that he stabbed Anton. At trial, McIntyre testified that she lied to the police and asserted that defendant never told her that he stabbed Anton. She explained that she made the statement during the interview because she was tired and felt threatened, pressured, not safe, and uncomfortable when the detective mentioned her children and indicated that she could get into trouble even though she was not present during the offense.

During his closing argument, the prosecutor argued, without objection, that defendant’s admission to McIntyre that he stabbed Anton was substantive evidence of defendant’s guilt. The trial court, also without objection, instructed the jurors that they could consider prior inconsistent statements both for impeachment purposes and as substantive evidence. Afterward, defense counsel expressly approved the instructions provided by the trial court . . . .

The Court's analysis of each of defendant's arguments on appeal followed:

First, defendant raises three related claims concerning the prosecution’s responsibility to present Evans as a res gestae witness and the trial court’s exclusion of Evans’s testimony. He first contends that the prosecution violated its duty to present the res gestae of the case by failing to acknowledge that Evans was a res gestae witness and by objecting to defendant’s efforts to call Evans as a witness, thereby depriving defendant of his right to present a defense. We disagree . . . .

Although the prosecutor did not include Evans as a known res gestae witness on his witness list, the record shows that the prosecutor’s omission did not prejudice defendant, Carines, 460 Mich at 763, or violate his right to present a defense, People v Unger, 278 Mich App 210, 249-250; 749 NW2d 272 (2008). Because defendant implicated Evans in the assault, it is apparent that defendant was aware that Evans could be a res gestae witness. The prosecutor subpoenaed Evans and produced him for trial in the event that the trial court ruled that Evans constituted a res gestae witness and defendant desired to call him, thereby satisfying the prosecution’s obligations under MCL 767.40a even though he did not intend to present Evans as a witness. As discussed infra, the prosecutor properly notified the trial court before trial of the possible need for Evans to be informed of his Fifth Amendment right against self-incrimination. Dyer, 425 Mich at 578 n 5. Because Evans invoked his Fifth Amendment privilege against self- incrimination and refused to testify, neither the prosecution nor the defense could call Evans as a witness. People v Paasche, 207 Mich App 698, 709; 525 NW2d 914 (1994). Thus, there is no indication that the prosecution committed a plain error affecting defendant’s substantial rights by failing to include Evans on the witness list as a res gestae witness, notifying the trial court of the need to inform Evans of his Fifth Amendment right against self-incrimination, and failing to call Evans as a witness . . . .

. . . [T]he trial court’s preclusion of Evans’s testimony did not violate defendant’s right to present a defense. A defendant has a constitutionally guaranteed right to present a defense, which includes the right to call witnesses. Unger, 278 Mich App at 249-250. “However, an accused’s right to present evidence in his defense is not absolute.” Id. at 250; citing United States v Scheffer, 523 US 303, 308; 118 S Ct 1261; 140 L Ed 2d 413 (1998); Crane v Kentucky, 476 US 683, 690; 106 S Ct 2142; 90 L Ed 2d 636 (1986). “The accused must still comply with ‘established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’ ” People v Hayes, 421 Mich 271, 279; 364 NW2d 635 (1984), quoting Chambers v Mississippi, 410 US 284, 302; 93 S Ct 1038; 35 L Ed 2d 297 (1973). Likewise, as recognized by the Sixth Circuit, “[a] defendant’s right to force a witness to testify must yield to that witness’[s] assertion of his Fifth Amendment privilege against self incrimination, where it is ‘grounded on a reasonable fear of danger of prosecution.” United States v Gaitan-Acevedo, 148 F3d 577, 588 (CA 6, 1998) (quotation marks and citation omitted). Thus, when a witness legitimately exercises his Fifth Amendment right against self-incrimination and refuses to testify, neither the prosecution nor the defense can call him as a witness. Dyer, 425 Mich at 576; Paasche, 207 Mich App at 709. Through his own testimony and testimony elicited from a detective and McIntyre, defendant was able to present his defense theory that Evans was at the scene of the crime and committed the assault. Thus, the trial court did not deprive defendant of his right to present a defense. Unger, 278 Mich App at 249-250.

Second, defendant argues that the trial court abused its discretion in excluding as inadmissible hearsay Evans’s statement to the police that he was present during the assault because it was admissible under the statement against penal interest exception to the hearsay rule, MRE 804(b)(3), or under the “catchall” exception to the hearsay rule, MRE 804(b)(7). We disagree . . . .

The totality of the circumstances does not demonstrate that Evans’s statement is trustworthy. It is evident Evans had personal knowledge of whether he was present when the assault occurred, and there is no indication that Evans’s statement was involuntary, especially given that the detective informed Evans of his Miranda rights before Evans made the statement. However, his admission was not spontaneous and was only provided to the police after the detective reiterated that defendant had implicated him in the assault and the detective stated that he knew that Evans was present during the assault. Additionally, Evans’s statements were not consistent, as he expressly denied being present when the assault occurred during his first statement to the police, when he was also aware that defendant had implicated him as the perpetrator. Evans’s admission that he was present was provided approximately four months after the assault while he was in custody for a separate offense. Accordingly, the trial court did not abuse its discretion when it precluded the admission of Evans’s statement under MRE 804(b)(7).

Third, defendant raises three claims related to the prosecution’s use of McIntyre’s prior inconsistent statement (i.e., that on the night of the assault, defendant told McIntyre that he stabbed Anton) as substantive evidence of defendant’s guilt. Defendant argues that his right to a fair trial was violated by the prosecutor’s use of McIntyre’s prior inconsistent statement as substantive evidence of his guilt and the trial court’s failure to provide a proper cautionary instruction. Additionally, defendant asserts that defense counsel’s failure to object to the trial court’s improper jury instruction constituted ineffective assistance of counsel. We reject defendant’s claims . . . .

The record shows that the prosecutor impermissibly used McIntyre’s statement as substantive evidence by arguing that the final piece of evidence was McIntyre’s statement to the police that, on the night of the assault, defendant told her that he stabbed Anton. The prosecution does not argue that McIntyre’s statement was admissible under a hearsay exception, nor do we believe that an exception applies. Compounding this error, the trial court instructed the jury at the end of the trial, in accordance with M Crim JI 4.5(2), that the jury could consider prior inconsistent statements as substantive evidence. Because McIntyre’s police statement implicating defendant in the assault was admissible only to impeach her testimony, the prosecution’s use of the statement as substantive evidence of defendant’s guilt, and the trial court’s instruction, constituted plain error. Carines, 460 Mich at 763-764, 768, 774. Likewise, given that a jury is presumed to follow a trial court’s instructions, People v Meissner, 294 Mich App 438, 457; 812 NW2d 37 (2011), it is probable that the jury impermissibly considered McIntyre’s statement as substantive evidence that defendant committed the assault.

However, in light of the extensive evidence admitted at trial linking defendant to the assault, we find that these errors did not prejudice defendant. Carines, 460 Mich at 763-764, 772, 774. McIntyre’s trial testimony and the admission of McIntyre’s police interviews in their entirety confirmed that she also told the defective that (1) defendant told her that Anton was stabbed but did not indicate who stabbed him, and (2) defendant told her that he did not commit the act, both of which were consistent with her written police statement and with her trial testimony. Additionally McIntyre testified that she lied to the detective when she told him that defendant had admitted that he stabbed Anton and that she immediately recanted her statement implicating defendant when she left the police station. Further, apart from McIntyre’s incriminating police statement, the consistent testimony of Anton, Rory, and Suzanne, as well as the physical evidence linking defendant to the crime, provided overwhelming evidence that defendant committed the assault. Therefore, the substantive use of McIntyre’s statement did not constitute a plain error that affected defendant’s substantial rights. Id. at 763-764, 774.

For the same reasons, we conclude that defense counsel’s performance did not constitute ineffective assistance. Defense counsel’s performance arguably fell below an objective standard of reasonableness when he failed to object to the prosecution’s improper use of McIntyre’s prior inconsistent statement as substantive evidence of defendant’s guilt, object to the jury instructions as given, or request a limiting instruction regarding the use of McIntyre’s statement. Vaughn, 491 Mich at 669-671. However, in light of the overwhelming evidence implicating defendant as the perpetrator of the assault, there is not a reasonable probability that the result of the proceedings would have been different but for counsel’s errors. Id.