Opinion
Docket No. 45038.
Decided June 17, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, and Paul Burakoff, Assistant Prosecuting Attorney, for the people.
James F. Bauhof, for defendant on appeal.
Before: R.B. BURNS, P.J., and J.H. GILLIS and D.C. RILEY, JJ.
After a jury trial held March 28, 29 and 30, 1979, defendant was convicted of breaking and entering into a store with intent to commit a larceny, MCL 750.110; MSA 28.305. On April 30, 1979, she was sentenced to serve three years probation and now appeals as of right.
Defendant first contends that the trial court reversibly erred by admitting evidence of her limited participation in a prior breaking and entering.
Evidence of similar acts may be admitted only under certain circumstances, such as to prove intent, plan, scheme, system, etc. MRE 404(b). Admission is also limited by the requirement that one or more of these purposes must be material or at issue. People v Major, 407 Mich. 394, 398-400; 285 N.W.2d 660 (1979). Further, even if the similar acts evidence is probative of a contested purpose, it must still be rejected if its probative value is outweighed by its prejudicial impact. People v Worden, 91 Mich. App. 666, 683; 284 N.W.2d 159 (1979), People v Wilkins, 82 Mich. App. 260, 270; 266 N.W.2d 781 (1978). Thus, if the information is incurably prejudicial, it may not be admitted under any circumstances.
A trial court's admission determination will not be reversed on appeal unless the lower court has abused its discretion. People v Duncan, 402 Mich. 1, 14-15; 260 N.W.2d 58 (1977). We believe that the trial court abused its discretion by admitting evidence of defendant's prior participation, as the prejudicial effect clearly outweighed any probative value.
The witness Higdon who was physically involved in the instant breaking and entering (as opposed to defendant who was allegedly only an aider and abettor) was the only one to testify regarding defendant's presence at a prior break-in. His testimony on defendant's participation conflicted with testimony that he gave at a prior in camera hearing. Further, a statement to police about defendant's prior participation was not turned over to the defense as required by a discovery order so that defense preparation and response was impaired. Augmenting the inherent prejudice of admitting Higdon's testimony under these circumstances was the statement by the judge indicating his belief in Higdon's description of defendant's prior involvement. We believe that this action was so prejudicial as to merit reversal and a new trial. People v Ronald Green, 74 Mich. App. 601, 604; 254 N.W.2d 788 (1977).
As implied earlier, we agree with defendant that the trial court erred in admitting two witnesses' statements that had not been turned over to the defense pursuant to a pretrial order.
In the instant case, the trial court entered a discovery order on September 6, 1977, which states:
"The prosecuting attorney shall furnish copies of all written, and summaries of all oral, statements to defendant's attorney at the time scheduled for arraignment, or shall mail same not later than ten (10) days following the scheduled arraignment, * * * which shall describe each statement by stating the date made and the name of the person to whom the statement was made. Failure to do so will result in suppression of said statement." (Emphasis added.)
Despite this order and the fact that the prosecution possessed crucial statements from witnesses Zugel and Higdon prior to trial, the trial court did not order suppression.
Discovery is becoming an increasingly important aspect of criminal trials. People v Thorton, 80 Mich. App. 746, 750; 265 N.W.2d 35 (1978), People v Aldridge, 47 Mich. App. 639, 644; 209 N.W.2d 796 (1973). A defendant's access to pretrial discovery should be encouraged if it will aid in the ascertainment of the truth and will insure defendant's fundamental right to a fair trial. People v Walton, 71 Mich. App. 478, 481-482; 247 N.W.2d 378 (1976). When a prosecutor suppresses pretrial statements that are material to defense preparation, nondisclosure will be considered at least prejudicial, Thorton, supra, at 750-752, and perhaps a violation of due process. See Brady v Maryland, 373 U.S. 83; 83 S.Ct. 1194; 10 L.Ed.2d 215 (1963).
In the instant case, the prosecution possessed evidence of a statement by witness Zugel, who was present at the time of the alleged crime, for over a year and a half prior to trial. It was material to defendant's defense because it contained no mention of whether or not defendant took part in any discussions concerning the break-in. Approximately four days prior to trial, the prosecution became aware of witness Higdon's statement made to police. This statement was also crucial because it referred to an earlier break-in in which defendant allegedly made statements similar to those which implicated her in the present case. It is of no consequence that this latter statement was made to the police rather than to the prosecution. See People v Florinchi, 84 Mich. App. 128; 269 N.W.2d 500 (1978). We believe that the trial court reversibly erred in failing to suppress evidence of the two witnesses' statements offered in violation of its own pretrial order.
Defendant also asserts that the court erred in allowing the prosecutor to question the witness Higdon about inconsistencies between his in-court and preliminary examination testimony. This issue will not be considered on appeal since the basis for objection on appeal differs from that asserted below. Marietta v Cliffs Ridge, Inc, 385 Mich. 364, 374; 189 N.W.2d 208 (1971).
At trial, defendant objected to this questioning since it called for the witness to give an opinion. On appeal, defendant argues that it was error to allow the witness to corroborate his testimony without any prior impeachment. We agree with defendant's latter contention since consistent statements are normally inadmissible to rehabilitate a witness unless that witness's credibility has first been attacked. See People v Harris, 86 Mich. App. 301, 305; 272 N.W.2d 635 (1978). However, since this issue was not properly preserved for appeal, we will not reverse on this basis.
Defendant's remaining issues are clearly without merit. See People v Hampton, 407 Mich. 354; 285 N.W.2d 284 (1979), People v Wirth, 87 Mich. App. 41; 273 N.W.2d 104 (1978), People v Whalen, 65 Mich. App. 687; 238 N.W.2d 376 (1975), People v Stedman, 41 Mich. App. 393; 200 N.W.2d 370 (1972).
One of the remaining issues asserted by the defendant involves the denial of his request for production of evidence of certain prior statements made by the witness Higdon to Barry County officials. Defendant did not make a record at trial establishing any prejudice caused by nonproduction, therefore, appellate review is barred. See People v Stedman, 41 Mich. App. 393; 200 N.W.2d 370 (1972). Had this issue been properly preserved we would have found nonproduction to be reversible error as we have with respect to other of witness Higdon's and witness Zugel's statements.
Reversed and remanded for new trial.
J.H. GILLIS, J., concurs in the result only.