Opinion
Docket No. 48965.
Decided May 20, 1981. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter E. Deegan, Prosecuting Attorney, and Peter R. George, Chief Appellate Attorney, for the people.
Chari Grove, Assistant State Appellate Defender, for defendant on appeal.
Before: N.J. KAUFMAN, P.J., and ALLEN and D.C. RILEY, JJ.
On August 20, 1979, defendant was convicted by a jury of first-degree murder, contrary to MCL 750.316; MSA 28.548. On August 27, 1979, the trial court sentenced defendant to life imprisonment with credit for time previously served in the St. Clair County jail. Defendant appeals as of right, pursuant to GCR 1963, 806.1.
Defendant was charged with the murder of his former wife, Kathleen Brand. Prior to trial, a Walker hearing was held to determine the admissibility of certain inculpatory postarrest statements made by defendant to Detective Donald Savalox of the Michigan State Police and Detective Ralph Cerpial of the Algonac Police Department. These statements were made after the officers told defendant that no attorney was available in response to his request for one. The trial judge ruled that any statements made by defendant after his request for counsel were inadmissible under People v Parker, 84 Mich. App. 447, 452; 269 N.W.2d 635 (1978), lv den 406 Mich. 884 (1979), and People v Lewis, 47 Mich. App. 450; 209 N.W.2d 450 (1973).
People v Walker (On Rehearing), 374 Mich. 331; 132 N.W.2d 87 (1965).
Prior to the prosecution's resting its case, at defense counsel's request, a separate record was made outside the presence of the jury to determine whether the testimony of two prosecution witnesses, St. Clair County Sheriff's Deputies Daniel Eastwood and Thomas J. Carr, would fall within the scope of evidence excluded by the trial court's Walker hearing ruling. After taking testimony from these witnesses, the trial court ruled that their testimony concerning defendant's postarrest statements would be inadmissible under the court's prior ruling.
Defendant never denied the shooting, his sole defense being insanity. In support of this claim, defendant presented both lay and expert witnesses.
After the defense rested, the prosecutor presented several rebuttal witnesses, including Deputies Daniel Eastwood and Thomas J. Carr. Eastwood and Carr testified concerning defendant's postarrest statements in which he admitted killing Kathleen Brand. It is undisputed that the trial court had previously excluded those statements from the prosecutor's case in chief. On appeal, defendant argues that the admission of these statements constituted improper rebuttal testimony and violated the trial court's previous order.
Preliminarily, we note that no objection was raised at trial to the admission of the deputies' testimony. Accordingly, we need not reach this issue absent a finding of manifest injustice. People v Moss, 397 Mich. 69, 70; 243 N.W.2d 254 (1976), People v Coles, 79 Mich. App. 255, 262; 261 N.W.2d 280 (1977). We find that no manifest injustice was occasioned by the admission of this testimony and hold that defendant has failed to preserve this issue for appeal. Nevertheless, we further note that the admission of this testimony was not erroneous.
The testimony of Officers Eastwood and Carr related to defendant's actions and statements following his arrest for the charged crime. This evidence was offered not for its substantive value but to rebut and impeach the testimony of defendant's witnesses (and Dr. Tanay's videotaped interview with defendant) which indicated that the defendant was a psychotic who believed that he was controlled by demons at the time of the crime. Through the deputies' testimony, the prosecutor specifically brought out the fact that defendant never mentioned demons after his arrest but stated that he had committed the crime because he was angry at his former wife for living with another man. Since the officers' testimony tended to refute or impeach evidence raised by defendant, it was proper rebuttal testimony. People v Meadows, 80 Mich. App. 680, 686; 263 N.W.2d 903 (1977).
In People v Murphy, 100 Mich. App. 413, 415; 299 N.W.2d 51 (1980), lv gtd 410 Mich. 920 (1981), this Court held that testimony of two police officers relating to defendant's sanity was prematurely allowed and should not have been admitted into evidence until after defendant had introduced evidence that he was insane. Because a defendant is presumed sane until he introduces some evidence to the contrary, People v Sargeant, 65 Mich. App. 691; 238 N.W.2d 175 (1975), the proper place for the testimony of Officers Eastwood and Carr was in rebuttal, rather than in plaintiff's case in chief. See Murphy, supra.
Although the trial judge specifically ruled that defendant's postarrest statements were inadmissible as substantive evidence during the prosecutor's case in chief, the rebuttal testimony was not offered to prove that the crime was committed. Consequently, its admission did not contravene the trial court's previous ruling. It should be noted that the trial judge specifically instructed the jury regarding the purpose of the rebuttal testimony as follows:
"This now leads us to the point in the trial where we have rebuttal testimony and the testimony that you are about to hear is intended to be in answer to the evidence presented by the defense which related to defendant's mental state. This rebuttal testimony is inadmissible for any other purpose such as for proof that the crime was in fact committed.
"You will consider the testimony for the purpose of determining the defendant's mental state on September 19th and only for that purpose."
Accordingly, the evidence was properly admitted on rebuttal.
Defendant contends that the deputies' testimony that defendant related the incidents "like a kid that hit a homerun" constituted inadmissible lay testimony on the issue of defendant's sanity without a proper foundation as required by People v Cole, 382 Mich. 695; 172 N.W.2d 354 (1969). This argument is without merit. We conclude that the officers' isolated characterization of defendant was more of a comment on defendant's demeanor than an opinion of his sanity. We also note that neither of these statements was purposely elicited by the prosecutor.
Affirmed.