Opinion
Docket No. 53339.
Decided May 19, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and William E. Molner, Assistant Attorney General, for the people.
Terence R. Flanagan, Assistant State Appellate Defender, for defendant on appeal.
Defendant, Wendell Albert Fuzi, was charged with the first-degree murder (felony) of Gordon Clark in Wexford County. MCL 750.316; MSA 28.548. Defendant's motion for change of venue was granted. He was found guilty as charged by an Isabella County jury. He was sentenced to life imprisonment to be served in solitary confinement at hard labor.
In exchange for her testimony in this case and in a Manistee County case where defendant was charged with the murder of William Mowrey, Susan Mishler was granted immunity from prosecution in the two cases.
People v Fuzi # 2, 116 Mich. App. 277; 323 N.W.2d 358 (1982). Defendant was convicted of first-degree premeditated murder in that case.
Ms. Mishler testified that defendant came to her home on the evening of May 10, 1979. They drove around Cadillac for a while and picked up William Mowrey. After discussing where they might be able to get some money, they drove to the apartment of 77-year-old Gordon Clark. Mowrey and defendant went up to the apartment. Mishler stayed in the car. About 15 minutes later, Mowrey and defendant came running back to the car and all three drove to Berry Lake. Mowrey appeared sick but defendant was laughing. Defendant said he had knocked down the old man and had taken a wallet from the apartment. Mowrey and defendant divided the money and defendant threw the wallet in the lake. Mishler drove Mowrey and defendant home and returned to her own home. Later that evening, defendant and Mishler's friend Norma Ray came to Mishler's house. All three drove to Clark's apartment. Norma Ray and defendant went into the apartment and came out with another wallet. They all went home.
The next morning, Mishler, Mowrey and defendant drove to a wooded area in Manistee County where defendant killed Mowrey. Defendant told Mishler that he had to kill Mowrey because Mowrey "knew too much". The jury was instructed that evidence of the killing of Mowrey was admitted for the limited purpose of showing defendant's consciousness of guilt for the killing of Mr. Clark.
Defendant was apprehended in a Wexford County breaking and entering on August 3, 1979. At that time, defendant led police to the wooded area in Manistee County where Mowrey's body was located. Defendant also told the police that Gordon Clark had been murdered. Although Clark's death was originally attributed to a heart attack, his body was disinterred in August, 1979, and an autopsy revealed that his death had been caused by blows to his body from a blunt object.
Evidence of various confessions by defendant was admitted. Defendant testified at trial that he had been drinking alcohol and taking drugs on May 10, 1979. He could not recall many of the events of May 10, 1979. The theory of the defense was insanity.
The first issue raised by defendant on appeal concerns the trial court's ruling that evidence of Mishler's knowledge of, and involvement in, several killings other than the Clark and Mowrey homicides, for which she had been granted immunity, could not be introduced at trial. Sometime prior to trial, Mishler had given a list of 13 homicides which had allegedly occurred in various Michigan counties to Nelson Gelinas, a police investigator. Mishler had admitted involvement in at least some of the alleged homicides. Of the 13 homicides, the police had been able to confirm only the Clark and Mowrey killings. The other homicides were not related to the Clark and Mowrey cases. Mishler notified the trial court in this case that she would assert her Fifth Amendment privilege against self-incrimination if questioned about the other homicides. The trial court ruled that neither Mishler nor Gelinas could be questioned about the other homicides. Defendant argues that the effect of this ruling was to deny him his constitutional right to the confrontation of witnesses. US Const, Am VI; Const 1963, art 1, § 20.
In United States v Cardillo, 316 F.2d 606 (CA 2, 1963), the court discussed the assertion of a witness's privilege against self-incrimination and its effect on an accused's right to confront witnesses. If a witness's assertion of the privilege merely precludes inquiry into collateral matters bearing only on the witness's general credibility, the witness's testimony may be used against the defendant. If assertion of the privilege prevents inquiry into matters about which the witness testified on direct examination, the witness's testimony should be stricken in whole or in part. Id., 611. If the purpose of the attempted cross-examination is a particular attack relating to the specific events of the crime charged, a restriction of such cross-examination may result in a denial of a defendant's Sixth Amendment right. United States v Garrett, 542 F.2d 23 (CA 6, 1976). It is not permissible, for example, to curtail an accused's attempt to establish a witness's bias or interest in the outcome of the prosecution. Id.
The relevant inquiry, therefore, is whether the intended cross-examination, to which the witness pleads the Fifth Amendment, relates only to general credibility. If the accused's legitimate purpose is to go beyond an attack on the witness's general credibility, the witness's assertion of the Fifth Amendment and the consequent restriction on the scope of cross-examination may constitute reversible error.
In this case, the only purpose for which defendant sought to introduce the evidence of Mishler's knowledge of and involvement in unrelated criminal activity was to attack her general truthfulness. There was no contention at trial that the evidence had any other relevance. On appeal defendant does not propose any other theory of relevance. Upon careful review of the record, we find that this evidence is relevant, if at all, only to Mishler's general credibility.
Because the evidence of Mishler's unrelated criminal activity did not relate to matters beyond her general credibility, the trial court's ruling that she could not be questioned concerning that activity did not unconstitutionally restrict defendant's confrontation of this witness. Defense counsel took full advantage of the many opportunities to introduce evidence which seriously attacked her credibility. The trial court had discretionary authority to allow questioning of Mishler concerning specific instances of her conduct for the purpose of attacking her character regarding truthfulness. MRE 608(b)(1). In this case, however, the trial court's exercise of discretion, in light of Mishler's legitimate assertion of her Fifth Amendment privilege, can in no way be characterized as abusive. Moreover, because Gelinas was not a character witness, there was no triggering of the trial court's discretion to determine the admissibility of his testimony concerning the unrelated criminal activity of Mishler. MRE 608(b)(2). We are not persuaded that the trial court's suppression of evidence of Mishler's unrelated criminal activity was erroneous.
MRE 608 provides: "The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self-incrimination when examined with respect to matters which relate only to credibility."
It is well-established that a witness may not be impeached by producing extrinsic evidence of collateral facts. People v Teague, 411 Mich. 562; 309 N.W.2d 530 (1981). A witness's credibility may not be attacked by extrinsic evidence of specific instances of the witness's conduct. MRE 608(b).
Defendant also argues that he was denied a fair trial by the introduction of evidence of prior consistent statements made by Mishler. Two police officers were called as rebuttal witnesses and were questioned concerning the similarity between Mishler's testimony and her various prior statements. There was no defense objection to the testimony of those rebuttal witnesses.
While evidence of prior consistent statements is inadmissible unless some well-recognized exception applies, the absence of objection at trial will preclude reversal based on the improper introduction of such evidence unless the defendant can demonstrate that a manifest and serious error resulting in a denial of fundamental justice has occurred. People v Therrien, 97 Mich. App. 633; 296 N.W.2d 8 (1979). Even if such bolstering evidence is admitted over well-founded defense objection, the error may be harmless. People v Davis, 106 Mich. App. 351; 308 N.W.2d 206 (1981).
The instant record contains absolutely no suggestion that the calling of these rebuttal witnesses was deliberate misconduct on the part of the prosecutor. We do not find that admission of the now-challenged testimony was offensive to the maintenance of the integrity of the judicial system. Additionally, we find overwhelming evidence supporting defendant's conviction, including his confessions, the killing of Mowrey as evidence of defendant's consciousness of guilt, psychological testimony establishing defendant's sanity, and the trial testimony of Mishler. We are not persuaded that, absent this rebuttal testimony, even one juror would have likely voted to acquit defendant. Admission of this testimony was, therefore, harmless error. In our judgment, the error was not so manifest and so serious as to constitute fundamental injustice.
Finally, defendant argues that the jury instructions were erroneous in that they did not set forth as an essential element of first-degree felony murder the intention to kill, the intention to do great bodily harm, or the wanton and willful disregard of the likelihood that the natural tendency of defendant's conduct was to cause death or great bodily harm.
In People v Aaron, 409 Mich. 672, 722-723; 299 N.W.2d 304 (1980), the Supreme Court noted that Michigan had thus far recognized the common-law felony-murder doctrine, which defines malice as including the intent to commit the underlying felony. Under pre- Aaron law, therefore, the jury instructions in this case were proper.
In Aaron, the Supreme Court abrogated the common-law felony-murder doctrine and held that malice — defined as the intention to kill, the intention to do great bodily harm, or the wanton and willful disregard of the likelihood that the natural tendency of the defendant's behavior is to cause death or great bodily harm — is an essential element of any murder. Id., 728. The Court's holding, however, applies only to trials in progress on the date of the Aaron opinion (November 24, 1980) and to those trials occurring after that date. Id., 734. When defendant's May, 1980, trial took place, the common-law felony-murder doctrine was still in effect in Michigan. See People v Wilson, 411 Mich. 990 (1981) and People v Brady Smith, 108 Mich. App. 338; 310 N.W.2d 235 (1981).
Affirmed.