PEOPLE OF MI V MICHAEL ELLIS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 3, 2004
Plaintiff-Appellee,
v
No. 246709
Wayne Circuit Court
LC No. 01-007703-01
MICHAEL ELLIS,
Defendant-Appellant.
Before: Jansen, P.J., and Meter and Cooper, JJ.
METER, J. (concurring).
I agree with the majority’s opinion in all respects except for the analysis of the
prosecutorial misconduct issue.
While I ultimately agree with the majority that the prosecutor’s questioning of defense
witnesses did not constitute an error requiring reversal, I write separately to express my belief
that the holding of People v Gray, 466 Mich 44, 46-48; 642 NW2d 660 (2002), should be
extended to non-alibi witnesses. The reasoning in Gray and in People v Phillips, 217 Mich App
489, 492-496; 552 NW2d 487 (1996), applies to non-alibi witnesses as well as alibi witnesses. I
believe, despite suggestions to the contrary in People v Grisham, 125 Mich App 280, 287-288;
335 NW2d 680 (1983), that there simply is no persuasive reason to differentiate between the two
classes of witnesses. As noted in Gray, supra at 48-49, “[t]he trier of fact must have the
necessary information to assess the credibility of witnesses and determine the reliability of the
evidence presented.” Allowing the prosecutor the opportunity to impeach a defense witness
regarding the failure to come forward with exculpatory evidence, while safeguarding
concomitantly the defense’s opportunity to bolster the witness’s credibility by offering
understandable reasons for the delay, comports with this statement from Gray. It should be left
to the jury to determine the ultimate import of any failure by a witness to come forward with
exculpatory evidence; no foundational burden should be imposed on the prosecutor.
I would find that the prosecutor’s questions at issue were permissible impeachment
devices.
/s/ Patrick M. Meter
-1-
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