PEOPLE OF MI V SAMUEL PANNELL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 23, 2004
Plaintiff-Appellee,
v
No. 237024
Wayne Circuit Court
LC No. 00-009498-01
SAMUEL PANNELL,
Defendant-Appellant.
Before: Murphy, P.J., and Cooper and C. L. Levin*, JJ.
C. L. LEVIN, J. (concurring).
I concur in general with the majority’s analysis and disposition of the issues raised by
defendant, Samuel Pannell, in his appeal to this Court.
I write separately because I disagree with the majority’s application to the facts of this
case of the rule, respecting the use of an inconsistent statement, set forth in People v Kilbourn,
454 Mich 677, 682-683; 563 NW2d 669 (1997) and People v Stanaway, 446 Mich 643; 521
NW2d 557 (1994). I concur in the majority’s affirmance of the defendant’s convictions because
it cannot be said that it appears on examination of the record, that it is more probable than not
that the evidence in issue and its use by the prosecutor was outcome determinative. People v
Lukity, 460 Mich 484, 496; 596 NW2d 607 (1999).
Dushawn Walker’s home was next door to the home occupied by the victim, Bernard
Thomas. Walker was walking from his home to a nearby gas station when an automobile
occupied by Pannell and co-defendant Kevin Robinson pulled up in front of Thomas’ home.
Walker observed, as he was walking, some of what occurred.
Walker was initially a suspect and gave a statement to the police that the passenger had
something shiny in his hand. Walker, a reluctant witness, testified at trial, however, that he saw
the passenger, identified by other evidence as Pannell, reach into his pocket, but denied that he
observed or said to the police that there was something shiny in the passenger’s hand. Over
objection, the judge permitted use of the statement to the police to impeach Walker’s credibility,
and ruled that the statement could not be used as substantive evidence that the passenger in fact
had something shiny in his hand.
* Former Supreme Court justice, sitting on the Court of Appeals by assignment.
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In closing argument, the prosecutor adverted to Walker’s testimony that he had observed
a car pull up in front of Thomas’ home, and two persons get out of the car. The prosecutor
asserted that the passenger had something shiny in his hands. Pannell’s lawyer objected, and the
judge reminded the jury that he had previously instructed that the evidence regarding the shiny
object could be used only for impeachment purposes, not as substantive evidence.
In further closing argument, the prosecutor adverted again to Walker’s testimony that the
passenger had something shiny in his hand, adding, “this is hearsay. The testimony that you had
on the record is the impeachment testimony of Mr. Walker.” And, again, that Walker had
observed the passenger with something shiny in his hand. Still later, the prosecutor said, “I think
Dushawn Walker is telling the truth,” adding that the jury may not assume that the passenger had
something shiny in his hand, like a gun or a beer car, and could only use “that” to say whether
they believe Walker today in what he testified.
The rule set forth in Kilbourn and Stanaway has been summarized as follows:
Where a witness’ prior inconsistent statement implicates the defendant in a
criminal case, its admissibility may be subject to challenge, even for impeachment
purposes. Thus, where the substance of the impeaching statement is relevant to
the central issue of the case, and there is no other testimony from the witness for
which his or her credibility was relevant, the impeachment is not allowed.
However, this is a “very narrow rule,” and impeachment is generally allowed if
the witness testifies to other relevant facts, and his or her credibility becomes
relevant due to conflicts with the testimony of other witnesses. James K.
Robinson, Ronald S. Longhofer, Courtroom Handbook on Michigan Evidence,
1999.
The statement that the passenger had a shiny object was relevant to the central issue in
the case, whether Pannell or Robinson shot Bernard Thomas in the head, or whether both were
responsible for the gunshot to his head. Although the prosecutor admonished that the jury may
not assume that the passenger had something shiny in his hand, like a gun, that was the inference
that he suggested.
There was no testimony from Walker for which his credibility was relevant other than
whether the passenger had a shiny object in his hand. Walker provided background testimony
which was undisputed, that two men drove up to Thomas’s home, that he observed and heard
them pounding on Thomas’ front door, and, shortly thereafter, he heard a gun shot. And when
he walked back to his house, possibly twelve minutes later, the car was gone. No one disputed
Walker’s testimony in this regard, and the prosecutor urged Walker’s version to the jury, and
added, “I think Dushawn Walker is telling the truth.”
A prosecutor may not, in a criminal case, introduce an inconsistent hearsay statement
concerning the central issue in the case, when he does not challenge the credibility of the witness
in regard to any aspect of his testimony except his testimony regarding the central issue. That is
the point of Kilbourn and Stanaway. The principle underlying the rule stated in those cases was,
in effect, violated in this case, although a more specific objection in that regard was not made by
Pannell’s counsel.
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Nevertheless, Pannell’s conviction must be affirmed because, in addition to Ms. Brewer’s
testimony that Pannell told her upon returning from the scene, that he had shot Bernard Thomas,
there is the expert testimony tending to show that Pannell had nitrates on his clothing, thus
pointing to him as the shooter.
Brewer’s testimony, to be sure, was impeached by her acknowledgment that Robinson
was her long-time fiancée and the father of her baby, which made her a most interested witness
in the outcome, and to some extent, undermined her testimony that, in effect, exculpated
Robinson as the shooter. The nitrate evidence was persuasive, and for that reason, it cannot be
said that the misuse of the inconsistent statement was outcome determinative.
/s/ Charles L. Levin
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