Summary
In People v Grigsby [On Remand], 99 Mich. App. 672, 675 [ 299 N.W.2d 21 (1980)], it is clear that rebuttal testimony is limited to the refutation of relevant and material evidence, hence evidence bearing on an issue properly raised in a case.
Summary of this case from People v. HernandezOpinion
Docket No. 51295.
Decided August 27, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Frank J. Bernacki, Assistant Prosecuting Attorney, for the people.
John A. Lydick, Assistant State Appellate Defender, for defendant on appeal.
Defendant Grigsby was jury tried and convicted of armed robbery, MCL 750.529; MSA 28.797, sentenced to five to ten years imprisonment and appealed as of right. This Court granted plaintiff's motion to affirm and the Supreme Court vacated this Court's order and remanded for plenary consideration. 408 Mich. 904 (1980).
Complainant was robbed in his home by four or five armed men on January 4, 1976, between 7 p.m. and 8 p.m. Complainant testified that entrance was gained to his home after he admitted a man known to him as "Butch". Defendant was identified as one of the other perpetrators of the robbery. Defendant presented the alibi testimony of two of his aunts and his grandmother that defendant was at a family dinner between 7 and 8 in the evening of January 4, 1976. During defendant's cross-examination, the prosecuting attorney asked defendant if he had earlier told a police officer that he was with "Butch" until 8 p.m. on January 4, 1976. Defense counsel objected on the basis of relevancy. The trial court overruled defense counsel's objection. Defendant denied the truth of the statement, alleged that he had been harassed and explained that he thought the police officer had been talking about January 5, 1976. The police officer to whom defendant made the statement testified in rebuttal as to the voluntariness and accuracy of defendant's statement.
Defendant, on remand, contends that the cross-examination and subsequent rebuttal should have been included within the prosecution's case-in-chief. The prosecutor argues that the defendant was properly impeached with a prior inconsistent statement and that the rebuttal testimony was proper. We agree with the prosecutor and affirm defendant's conviction.
It is clear that rebuttal testimony is limited to the refutation of relevant and material evidence — hence evidence bearing on an issue properly raised in a case. It is also clear that a prosecutor may not elicit a denial of some statement not properly in the case and subsequently inject the issue into the case through rebuttal. People v McGillen #1, 392 Mich. 251; 220 N.W.2d 677 (1974), People v Bennett, 393 Mich. 445; 224 N.W.2d 840 (1975), People v Roeder, 79 Mich. App. 595; 262 N.W.2d 872 (1977), People v Karmey, 86 Mich. App. 626; 273 N.W.2d 503 (1978).
The case at bar is distinguishable from the above authorities because defendant did not deny making the statement and the statement itself was not inculpatory on its face. Only through an inference was the fact that defendant was with "Butch" on the night in question inculpatory, i.e., one must infer that the "Butch" who was involved in the robbery was the same "Butch" defendant claimed he was with on the night in question. Since the identification of "Butch" was tentative, the defendant's statement that he was with "Butch" had more probative value in disproving the defendant's alibi than as substantive evidence of defendant's guilt.
We also note that defense counsel did not object to the cross-examination or rebuttal testimony on the grounds now asserted. See People v Winfield, 39 Mich. App. 281; 197 N.W.2d 541 (1972), lv den 389 Mich. 766 (1973). Because the objection is not specific and the rebuttal testimony complained of is only inferential evidence of the defendant's guilt, we do not view the trial court's decision in the case at bar to be an abuse of discretion and, hence, reversible error. People v Ebejer, 66 Mich. App. 333; 239 N.W.2d 604 (1976). There is nothing in this case comparable to the courtroom dramatics injected in rebuttal in People v Kraai, 92 Mich. App. 398; 285 N.W.2d 309 (1979), requiring court intervention even without objection.
Defendant's other allegations of error are without merit.
Affirmed.