People v. Howard

¶1(dissenting). I cannot agree with the majority’s interpretation of the affidavit filed in support of defendant’s motion for new trial. Although it may be ambiguous, one reasonable interpretation of the affidavit is a confession by Lott, a former codefendant, which exonerates defendant. The circuit court could have required Lott to testify to resolve any ambiguity in the affidavit as presented. Anything less deprives defendant of the "full and fair hearing” to which this claim is entitled. People v Mosden, 381 Mich 506; 164 NW2d 26 (1969).1

¶2If, at the hearing, Lott admits his participation and exonerates defendant, defendant would be entitled to a new trial.2 Because he was jointly tried with defendant, Lott could not be forced to *601waive his Fifth Amendment privilege against self-incrimination3 at trial. This testimony would be newly discovered and could not have been produced with reasonable diligence at trial. People v Terry Burton, 74 Mich App 215, 224; 253 NW2d 710 (1977).

¶3Defendant testified that he played no part in the breaking and entering. Several witnesses supported his version of his whereabouts on that night. But defendant produced no testimony showing what occurred during the breaking and entering and who was responsible except through cross-examination of the main prosecution witness, an admitted participant testifying under a grant of immunity. Lott’s testimony would contradict this testimony, not be merely cumulative of it.

¶4Lott’s testimony would also render a different result probable on a retrial. The people’s case was based on the testimony of an admitted participant, given under a grant of immunity and contradicting several statements made earlier by this witness to the police. This Court has not hesitated to grant a motion for new trial under similar circumstances. People v McAllister, 16 Mich App 217; 167 NW2d 600 (1969), People v Cummings, 42 Mich App 108; 201 NW2d 358 (1972), People v Terry Burton, supra.

¶5The people contend that the affidavit did no more than attack the credibility of the admitted participant and will therefore not support the grant of a new trial. As a general rule, new evidence which merely impeaches testimony given at trial will not support a motion for a new trial. People v Serra, 301 Mich 124, 133; 3 NW2d 35 (1942). But, Lott’s testimony would do more than impeach that version of the events. It cannot be seriously contended that Lott’s testimony would *602not be substantive evidence to be considered by the jury in determining what occurred and who was responsible. Just because his testimony contradicts the other participant’s trial testimony does not make it "merely impeachment” evidence. Even though one effect of Lott’s testimony would be to impeach the people’s witness it would still be substantive evidence of defendant’s innocence. See, McCormick, Evidence (2d ed), § 47, p 99.

¶6I would remand for a full and fair hearing on defendant’s motion for new trial.