T.M. KAVANAGH, C.J.
Defendant is over 60 years of age. It is alleged that on two separate occasions, May 23, 1970 and May 31, 1970, he raped his 15-year-old daughter, Barbara Jean McGillen.
MCLA 750.520; MSA 28.788.
He was first tried and convicted of the May 31, 1970 offense by a jury. Subsequently, a different jury also found him guilty of the May 23, 1970 offense. Defendant separately appealed both convictions.
On its own motion, the Court of Appeals consolidated both cases for hearing on the merits. They subsequently affirmed both convictions in an unpublished opinion, Docket Nos. 11802, 13077, July 27, 1972. This Court granted leave to appeal in both cases, 388 Mich. 801 (1972), and they were jointly briefed and argued. To properly identify and discuss the different issues raised in each case, this Court will rule on each case by separate opinion. The following will deal with the defendant's first conviction, based on the May 31, 1970 offense.
ISSUE I
During the trial of this case, the prosecution put on the stand the arresting officer. The officer sought to testify as to statements made by the defendant at the time of his arrest. A Walker hearing was held by the trial judge and the statements given by the defendant were ruled to have been voluntary. The defendant challenges this finding.
People v Walker (on rehearing), 374 Mich. 331; 132 N.W.2d 87 (1965).
As this Court stated in People v Robinson, 386 Mich. 551, 557; 194 N.W.2d 709 (1972), "the sole purpose of the Walker hearing is to determine the fact of voluntariness and a reviewing court is concerned only with the correctness of that determination. * * * `On this appeal we are required to "examine the whole record and make an independent determination of the ultimate issue of voluntariness."'"
If after such a review we do not possess a definite and firm conviction that a mistake was committed by the trial judge in his ruling, we will affirm that ruling. People v Hummel, 19 Mich. App. 266; 172 N.W.2d 550 (1969).
The Walker hearing in this case was held on February 19, 1971. At that time the arresting officer testified that he first learned of this alleged incident on the morning of June 6, 1970. At approximately 8:00 that morning, he received two telephone calls, the first from Mr. Porsche, the family with whom the prosecutrix was staying at the time, and the second from the wife of the defendant. Both requested that he come out to the Porsche residence. He also testified this was his first dealing with this case.
On June 3, 1971, at which time a second Walker hearing was held prior to the second trial for the May 23, 1970 offense, the officer recanted this testimony. On this date he testified that he first learned of this alleged crime on the evening of June 5, 1970. At that time he received a telephone call from another officer who had interviewed Barbara McGillen that evening and asked him to look into the matter.
The officer then stated that when he arrived at the Porsche residence he spoke briefly with Mr. Porsche. He then had the defendant enter his car at which time he read to the defendant his Miranda rights from a printed card. He then testified that the defendant agreed to waive these rights, and upon questioning the following dialogue took place.
During the second Walker hearing, the officer testified that this conversation included no mention whatsoever of the crimes alleged in these cases.
Miranda v Arizona, 384 U.S. 436; 86 S Ct 1602; 16 L Ed 2d 694, 10 ALR3d 974 (1966).
"Q. What questions did you ask about this incident?
"A. I asked direct questions — whether or not he had sexual intercourse with his daughter Barbara and his answer to that was — no.
"Q. Did you ask him anything else?
"A. I asked if he attempted to have sexual intercourse with Barbara and his answer to that was no also.
"Q. Did you ask him anything else?
"A. Then I asked if he had done anything at all with his daughter Barbara that might be considered indecent and he made the statement he was trying to help her so she would be ready when she started dating boys."
The officer then testified that he spoke briefly with Barbara McGillen and later her mother. He then placed the defendant under arrest and proceeded to drive the 17-18 miles to the State Police Post. Shortly after leaving the Porsche residence, the officer stated that the defendant told him he wanted an attorney. The officer also testified as follows:
"Q. You never discussed anything about this case after he told you he wanted to call me or an attorney?
"A. I may have asked him questions knowing I would not be able to use the answers. "Q. But from the answers you could lead to other things?
"A. It might.
"Q. Even if you could not use the answers, is this correct?
"A. It is theoretically possible.
"Q. Not theoretically possible, it is very possible if you ask the questions and know you could not repeat the answers to that question, it could lead to something else.
"A. It could — yes.
"Q. In spite of the fact he said he wanted to speak to an attorney, you continued questioning him, is that correct?
"A. I am sure I must have asked him questions, some questions about the matter. * * *
"Q. Were any questions asked him at the State Police Post in Bay City?
"A. I probably asked him more questions there, yes.
"Q. You asked him more questions there?
"A. Yes.
"Q. What questions did you ask him there?
"A. I don't recall exactly. He had indicated he had an attorney, he had in fact, called you upon our arrival at the post.
"Q. What questions did you ask him while at the post?
"A. I don't recall.
"Q. Did you ask him any questions about this incident at the post?
"A. I probably did — yes.
"Q. But you don't know what they were?
"A. They would have been of a general nature.
"Q. You don't know what they were?
"A. No."
The defendant did not testify during the first Walker hearing. At the second Walker hearing he gave the following version of the arrest and questioning.
Defendant states that when the officer arrived he spoke briefly to himself and Mr. Porsche. Neither conversation was about the alleged incidents. The officer spoke with Barbara and Mrs. McGillen, then called him over to the car and placed him under arrest. Defendant then testified:
"Q. Where were you when he asked you whether or not you ever had intercourse with your daughter Barbara?
"A. We was on the road, started down the road.
"Q. Where were you when he asked any of the questions?
"A. About Barbara Jean — we was on the road.
"Q. Where were you when he first told you of your right to have an attorney?
"A. On the road — he looked for the card in the yard and did not have one, he looked around the car, got in the car and started talking about the rights — you can have an attorney appointed.
"Q. You were aware of that at Porsche's or on the road?
"A. On the road.
"Q. Where were you when you told him about you were taking Barbara to dances and to various places so she would get acquainted and get ready for dating boys?
"A. On the road."
The defendant further testified that he did not understand what the officer said and did not know if he had to answer these questions. He further testified:
"Q. Did you ever make a statement to him, in answer to any question, that you were only trying to help her?
"A. Not the way he told it in court. He told it in court that I admitted having intercourse with her and I never done no such thing, I told him. We was — he was talking all the way bribing me all the way down about laying blocks and asking what I was doing, how many blocks can you lay and I told him I have laid 700 after dinner. He said, I am a block layer, a much bigger man than you are. He said, I can't do it. I did not tell him, he ain't got the move to lay blocks, but I didn't. I said, we had taken her out twice a week, Marie and I had taken her out to a fish supper and dance once a week over a year, to have her meet people, the young generation, so she would be ready to meet the people and the boys.
"Q. Is — this is what you told him?
"A. That's right."
When questioned about the exact nature of the response given by the defendant to the third incriminating question, the officer testified at the first Walker hearing as follows:
"Q. That was his only reply to that question?
"A. Yes.
"Q. You never asked him any other questions regarding this after that?
"A. I am sure I asked those three key questions several times and I always got the same answer.
"Q. You always got the same answer?
"A. Yes."
However, on this crucial point, the officer's testimony at the second Walker hearing again changes to the following:
"Q. You merely asked and got an answer to that question of what?
"A. It wasn't a direct answer — he said, he was trying to help her.
"Q. Not a direct answer — he was trying to help, in what way?
"A. So she would be ready when she started dating boys.
"Q. Did you ask what he meant by that question — that answer?
"A. I believe I did.
"Q. What did he say he meant by it? "A. I don't recall if he explained exactly what he meant by it.
"Q. Did you ask any further questions?
"A. I asked a lot of questions — I asked him quite a number of questions."
The law in this state was expressed by the United States Supreme Court in Miranda, supra, pp 473-475:
"Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent. * * *
"If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v Illinois, 378 U.S. 478, 490, n. 14 [ 84 S Ct 1758; 12 L Ed 2d 977 (1964)]."
See also, People v Tubbs, 22 Mich. App. 549; 177 N.W.2d 622 (1970); People v Matthews, 22 Mich. App. 619; 178 N.W.2d 94 (1970). In this case the arresting officer admits that the defendant requested an attorney and that he continued to question the defendant although he knew that such action was impermissible. Fortunately for the police, however, the defendant's incriminating answer to the officer's third question was given prior to his request for counsel. Defendant asserts that the warnings were unclear to him, he did not understand them, and that these questions were asked after he requested counsel. Simply put, the question is who is this Court to believe.
As shown in the above excerpts from the transcripts, the incriminating answer itself is highly ambiguous and in dire need of explanation. During the first trial, the officer testified that this was a direct statement given by the defendant in response to a direct question. Moreover, the same highly ambiguous, unresponsive answer was repeated several times. Yet upon the second trial, we learn such is not the case. The officer now admits the answer was unresponsive and in need of an explanation, even to him. He admits he continued questioning to ascertain what the defendant meant by this statement. He never does tell us what the response was. Why was this crucial fact not revealed at all during the first prosecution? It now appears that the defendant's definite, repetitive, concrete response may in reality be nothing more than the officer's repeated paraphrase of the entire conversation. This is not what the officer was asked. He was not asked to capsulize the conversation and give his synopsis. He was asked what the defendant said. It is only the defendant's statements that may be admissible against him, not the arresting officer's editorialized version of them.
Suffice it to say, that the officer's testimony, taken as a whole, shows not only a deliberate attempt on his part to by-pass the mandates of Miranda, but also reveals a lack of candor with the court, the attorneys and to our system of jurisprudence. The police are not advocates in a criminal prosecution. They contribute a vast service to society by investigating crime, apprehending the guilty, and by protecting the innocent. Far too often they are not given the praise and the honor due them. However, upon taking the witness stand in a criminal trial, their fealty is to our system of justice, not to the prosecutor's office or to the defense attorney. Their only obligation is to tell the truth, the whole truth, and nothing but the truth.
As Miranda, supra, dictates, the burden rests on the government to show that the defendant knowingly and intelligently waived his constitutional rights. We do not feel that burden has been met in this case. We accordingly hold that the statements given by the defendant were involuntary and reversible error was committed when they were introduced at trial.
ISSUE II
After the close of defendant's case, the prosecution called several witnesses to the stand for the purpose of rebutting a portion of the testimony given by the defense witnesses. Defendant now argues that this rebuttal testimony was introduced over the objection of the defendant, was improper, inadmissible, inflammatory, emotionally appealing and unfairly prejudicial.
During cross-examination, the defendant was asked by the prosecutor whether or not he believed in maintaining strict discipline within the family. In connection with this, he then asked whether or not the defendant had ever found it necessary to spank his children, and in particular, whether he ever struck Barbara McGillen with his hand. The defendant answered no to both questions.
Also, on the cross-examination of Marie McGillen, defendant's wife, the prosecutor asked whether or not the prosecutrix had complained to her mother about this incident shortly after it happened, and whether or not she had shown the torn skirt to her which had resulted from it. The witness testified that Barbara had not.
Testimony of Ronald McGillen —
Upon taking the stand, Ronald testified that Barbara came into their home after this incident, told him what had happened, showed him her torn skirt and had also complained to her mother, Marie McGillen. Defendant objected to this testimony on the ground that it was not proper rebuttal evidence and more properly belonged in the prosecutor's case in chief. Ronald then continued to testify that he had seen the defendant on more than one occasion strike some of the children. He then testified specifically as to the beating the defendant allegedly inflicted on Ronald's younger brother on an earlier occasion.
The complaining witness, Barbara, did not testify as to this conversation or meeting with her brother when she was on the stand. Her testimony could be read as actually negating this meeting with her brother.
As to defendant's objection that part of Ronald's testimony should have been presented in the prosecutor's case in chief, we feel that the rule expressed by Justice CAMPBELL in People v Quick, 58 Mich. 321-323; 25 N.W. 302 (1885) should be controlling in this case. Justice CAMPBELL stated:
"We have held on several occasions that the defendant has a right to know in advance of the trial what witnesses are to be produced against him, so far as then known, and to have any new witnesses endorsed on the information as soon as discovered. The object of this is not merely to advise a respondent what witnesses will be produced on the main charge. It is to guard him against the production of persons who are unknown, and whose character he should have an opportunity to canvass. It is as important to impeach a rebutting witness as any other. In the present case, however, the witnesses who were received as rebutting witnesses were not such. They were called to prove what belonged to the people's case in chief. Cases may sometimes arise where testimony which could not be had in the opening may be let in upon good cause shown thereafter. But it is not proper to divide up the testimony on which the people propose to rest their case, and nothing which tends to prove the commission of the crime itself or its immediate surroundings can be classed as rebutting evidence under ordinary circumstances, if at all. In this case that rule was repeatedly violated."
See also, People v Rose, 268 Mich. 529, 538-540; 256 N.W. 536 (1934).
The prosecution should adhere to this rule upon retrial of this case.
The defendant also alleges that the prosecutor's contradiction of his statement that he had never spanked his children, elicited from him on cross-examination, was also improper.
The general rule on this evidentiary question is expressed in 98 CJS, Witnesses, §§ 632, 633. It is there stated:
"A party is free to contradict the answers which he has elicited from his adversary or his adversary's witness on cross-examination as to matters germane to the issue. * * *
"As a general rule, a witness may not be contradicted as to collateral, irrelevant, or immaterial matters, and, accordingly, subject to some qualifications, where a party brings out such matters on cross-examination of his adversary's witness, he may not contradict the witness' answers."
This rule is followed in Michigan.
Driscoll v People, 47 Mich. 413;
11 N.W. 221 (1882);
Hamilton v People,
46 Mich. 186;
9 N.W. 247 (1881);
People v Hillhouse,
80 Mich. 580;
45 N.W. 484 (1890).
The prosecutor argues that this testimony given by Ronald McGillen and several other of defendant's children is material to the issue being tried, in that it was relevant to the amount of force the prosecutrix could reasonably have been expected to put forth in resistance to the alleged forcible rape by her father.
This Court agrees that such evidence is material in that context, where the prosecution must prove forcible rape, but would point out that it would not be true in a statutory rape prosecution. We do not agree, however, that the testimony actually given by this and several other prosecution witnesses fell within the rationale proposed by the prosecutor for the introduction of such evidence.
It would be relevant to contradict the testimony of the defendant as to whether or not he ever struck the prosecutrix and, by so showing, introduce evidence tending to show the state of mind of the prosecutrix at the time of this alleged incident. Any fear which Barbara had of her father would be relevant on the question of the amount of resistance she could be expected to put forth to her father's advances. It might also be relevant to show that defendant has struck other members of the family, but only so far as that act was committed in Barbara's presence, or was in some way communicated to her and had some effect on her mental attitude towards resisting her father's will.
Without this vital connective link, this rebuttal testimony becomes collateral to the issue being tried and inadmissible.
Also, where the nature of the rebuttal testimony itself, as presented in this case, is so inherently inflammatory and prejudicial, the trial judge, when the proper objections are raised, should consider whether or not any probative value it may have is outweighed by the inherent prejudice to the defendant and if so, exclude it from testimony. This is particularly so where, as in this case, the prosecutor proceeds to question the witness on all the emotionally appealing, prejudicial details of the father's "spanking". These details, it is noted, go beyond simple contradiction of the defendant's testimony in this case. Generally, the only type of contradictory evidence that is admissible is that which directly tends to disprove the exact testimony given by a witness.
The prosecution should bear this in mind on retrial.
Testimony of Remaining Rebuttal Witnesses —
Since this case must be remanded for a new trial, this Court need not separately rule on the testimony of the remaining rebuttal witnesses. It is noted, however, that generally the testimony presented violated one or the other of the rules set forth above, and in some instances was rebuttal on a point that this Court might well deem collateral and immaterial, yet highly prejudicial. If the testimony of these witnesses is relevant and material, the prosecutor can introduce it in his case in chief, or in rebuttal in proper form.
REMAINING ISSUES
The defendant raises several other issues on appeal, not the least of which is the question whether there was sufficient evidence to convict in this case, which this Court need not now decide because a new trial is already mandated. We would hope that if error was committed, it will be corrected upon retrial of the matter.
We would also point out that in this case the defendant was charged with forcible rape. Yet the jury instruction given by the trial court more appropriately defines the offense of assault with intent to rape. The judge failed to include in his instruction one essential element of the crime of forcible rape, that is penetration. This is reversible error.
Reversed and remanded.
T.G. KAVANAGH, SWAINSON, WILLIAMS, and LEVIN, JJ., concurred with T.M. KAVANAGH, C.J.