                                                                         Michigan Supreme Court
                                                                               Lansing, Michigan
                                                  Chief Justice: 	         Justices:



Opinion                                           Clifford W. Taylor 	     Michael F. Cavanagh
                                                                           Elizabeth A. Weaver
                                                                           Marilyn Kelly
                                                                           Maura D. Corrigan
                                                                           Robert P. Young, Jr.
                                                                           Stephen J. Markman




                                                                FILED JUNE 25, 2008

 PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellant,

 v                                                               No. 134473

 JUNIOR FRED BLACKSTON,

              Defendant-Appellee.


 BEFORE THE ENTIRE BENCH

 CORRIGAN, J.

       At issue in this case is whether defendant is entitled to a new trial on the

 basis of his argument that two unavailable witnesses’ written recantations were

 improperly excluded from defendant’s second trial. A transcript of the witnesses’

 testimony from the first trial was admitted as evidence at the second trial and

 defendant sought to admit the recanting statements for purposes of impeachment.

 The Van Buren Circuit Court denied defendant’s motion to introduce the

 statements. The court also denied defendant’s motion for a new trial, in which

 defendant argued that the statements were improperly excluded. The Court of

 Appeals reversed and ordered a new trial. We conclude that defendant is not
entitled to a new trial because the trial court acted within its discretion when it

excluded the recantations and denied defendant’s motion for a new trial. Further,

any error that may have occurred was harmless. Accordingly, we reverse the

Court of Appeals judgment and remand to that court for consideration of any

remaining issues advanced by defendant in his claim of appeal.

            FACTS AND PROCEEDINGS IN THE CIRCUIT COURT

      In 2001 and 2002, juries twice convicted defendant, Junior Fred Blackston,

for the first-degree murder of Charles Miller.1 In 1988, Miller was executed and

buried in a field near defendant’s home in Allegan County.                Miller’s

disappearance remained unsolved until codefendant Charles Lamp ultimately led

the police to Miller’s body in 2000. At defendant’s first trial, codefendants Lamp

and Guy Simpson testified against him. The prosecutor permitted Lamp to plead

guilty of manslaughter, while Simpson received complete immunity for his

testimony. Both codefendants testified that defendant, Lamp, and Simpson took

Miller to the field where defendant shot Miller and cut off his ear to show it to a

local drug dealer, Benny Williams, as proof that Miller was dead. Lamp testified

that he helped defendant plan and execute the murder after defendant learned that

Miller planned to rob Williams.




      1
         Because the trial court acknowledged that it had incorrectly informed the
first jury about the nature of a codefendant’s plea agreement, it granted
defendant’s first motion for a new trial.



                                        2

      Defendant testified at the first trial but not at the second. Defendant agrees

that the victim was at defendant’s house on the night he was murdered. Through

alibi witnesses, defendant asserted that he did not leave the house with Miller,

Lamp, and Simpson. The defense contended that defendant remained home with

his 1½-year-old daughter. The child’s mother—defendant’s girlfriend at the time,

Darlene (Rhodes) Zantello—was pregnant. All parties agreed that she left her 1½­

year-old daughter with defendant when Zantello went to the hospital that night

because she was experiencing pain. Lamp and Simpson testified that defendant

brought his daughter along and left her sleeping in the back seat of the car during

the crime.

      Zantello testified at the first trial that, when she returned home from the

hospital that night, defendant was not present but returned later with Simpson.

Zantello overheard Simpson say “that was like a movie with all that blood.” She

also recalled hearing the men mention an ear being cut off, a pre-dug hole or

grave, and that defendant “almost blew his whole head off.”

      Rebecca (Krause) Mock, Miller’s girlfriend at the time of his death, and

Mock’s sister, Roxann (Krause) Barr, also testified that, in 1990, defendant had

admitted his involvement in the murder to them. They said that defendant cried,

confessed his participation, and stated that he felt badly about their acts. The

police confirmed that shortly after defendant confessed Mock and Barr reported

defendant’s confession to them.




                                        3

      Defendant’s three sisters each confirmed his alibi. Each sister attested that

she had visited defendant’s house—and had found him home with his daughter—

on the night of September 12, 1988, when Miller disappeared. Defendant also

produced Williams, who claimed to have known nothing about Miller’s death.

The investigators acknowledged that they had been unable to link Williams to

Miller’s murder.

      The second jury trial took place in 2002. In the interim, both Simpson and

Zantello proffered written statements2 recanting their former testimony. Simpson

claimed that only he and Lamp participated in the murder and that he had

implicated defendant for personal advantage under pressure from the prosecutor.

Zantello claimed that an abusive boyfriend had pressured her; he sought to gain

favor with the prosecutor in a separate case against him.        In her recanting

statement, she denied having overheard Simpson and defendant talking about the

murder and claimed that defendant was home when she returned from the hospital.

      Neither Simpson nor Zantello testified at the retrial. Simpson refused to

testify. Zantello stated that she could not remember the night of the crime, her

previous statements to the police, her previous testimony, or the contents of her

recanting affidavit, which she had completed only three months earlier. The trial

court declared both witnesses unavailable. It admitted their testimony from the

      2
         Zantello submitted a sworn and notarized statement. Simpson signed his
statement, which included his assertion that the allegations therein were true, but
his statement was not sworn and notarized.



                                        4

first trial under MRE 804(b)(1), which establishes a hearsay exception for former

testimony of an unavailable witness.       Without citing any authority, defense

counsel moved to admit the written recantations to impeach the unavailable

witnesses. The court ruled the recantations inadmissible under MRE 613, which

addresses prior statements of present witnesses, because the inconsistent

statements in the recantations were not asserted before the former testimony. The

court also ruled that Simpson and Zantello were attempting to manipulate the trial

process by conveniently becoming unavailable to testify. Further, it ruled that

because the recanting statements could not be cross-examined the prosecutor

would be prejudiced by their contradictory claims regarding defendant’s

innocence.

      Defendant was convicted again of first-degree murder and again moved for

a new trial. For the first time, he argued that the recanting statements should have

been admitted under MRE 806, which permits impeachment of hearsay

declarants.3 The court agreed that the statements could have been admitted under


      3
          MRE 806 states:

             When a hearsay statement, or a statement defined in Rule
      801(d)(2)(C), (D), or (E), has been admitted in evidence, the
      credibility of the declarant may be attacked, and if attacked may be
      supported, by any evidence which would be admissible for those
      purposes if declarant had testified as a witness. Evidence of a
      statement or conduct by the declarant at any time, inconsistent with
      the declarant’s hearsay statement, is not subject to any requirement
      that the declarant may have been afforded an opportunity to deny or
      explain. If the party against whom a hearsay statement has been
                                                                    (continued…)

                                         5

MRE 806, but opined that it would have excluded them under MRE 403—because

their undue prejudice outweighed their probative value—even if defendant had

raised his argument under MRE 806 at trial. The court opined that the statements

were highly suspect.      Not only did they contain collateral and damaging

allegations that could not be challenged on cross-examination, but the witnesses

had conveniently rendered themselves unavailable to testify just seven and three

months, respectively, after they completed their recantations.          Therefore,

defendant’s new argument for admission under MRE 806 did not justify a new

trial.

                                     APPEAL

         Defendant appealed and the Court of Appeals reversed and remanded for a

new trial, concluding that the statements should have been admitted under MRE

806. The Court held that any prejudice could have been remedied by redacting

portions of the statements and instructing the jury to consider them only for their

impeachment value.4       Applying the harmless error standard of review for




(…continued)
     admitted calls the declarant as a witness, the party is entitled to
     examine the declarant on the statement as if under cross­
     examination. [Emphasis added.]
         4
         People v Blackston, unpublished opinion per curiam of the Court of
Appeals, issued January 18, 2005 (Docket No. 245099) (Blackston I), pp 5-8,
vacated 474 Mich 915 (2005).



                                        6

nonconstitutional error, it concluded that the error required reversal because, more

likely than not, it had been outcome determinative.5

      This Court vacated the Court of Appeals opinion and remanded for that

court to “fully evaluate the harmless error question by considering the volume of

untainted evidence in support of the jury verdict, not just whether the declarants

were effectively impeached with other inconsistent statements at the first trial.”

We also directed the Court of Appeals to consider whether the error, if any, was

harmless beyond a reasonable doubt.6 On remand, the Court of Appeals repeated

its conclusion that the statements should have been admitted and, therefore, that

the trial court abused its discretion when it denied defendant’s new trial motion.

The Court of Appeals also concluded that the error was not harmless beyond a

reasonable doubt and again ordered a new trial.7 The prosecution applied for leave

to appeal to this Court and we ordered oral argument to consider whether to grant

leave or take other action.8 We now reverse.

                             STANDARD OF REVIEW

      The correct standard of appellate review of defendant’s claimed evidentiary

error has generated considerable debate in this case. The prosecution originally


      5
          Id. at 9. 

      6
          People v Blackston, 474 Mich 915 (2005). 

      7
        People v Blackston (On Remand), unpublished opinion per curiam of the

Court of Appeals, issued May 24, 2007 (Docket No. 245099) (Blackston II).
      8
          480 Mich 929 (2007).



                                         7

conceded that any error was preserved constitutional error—because it implicated

defendant’s confrontation rights—and therefore subject to review for whether it

was harmless beyond a reasonable doubt.9 But the Court of Appeals found it

unnecessary to decide whether the error was constitutional in nature. It held that

reversal was required even under the less stringent standard for nonconstitutional

error, concluding that it was more probable than not that the error was outcome

determinative.10     Our order of remand presumed that the standard governing

preserved constitutional error applied.11 The prosecution now argues that any

evidentiary error is subject to plain error review because defendant did not

sufficiently preserve the claim of error at trial.12 Because we conclude that the

error, if any, was harmless under any of these standards, and because the Court of

Appeals did not explicitly analyze which standard of review was appropriate, we

find it unnecessary to resolve this question.




       9
         People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999); Blackston
I, supra at 9 n 3.
       10
            Carines, supra at 774; Blackston I, supra at 9 n 3 and accompanying text.
       11
            474 Mich 915 (2005).
       12
          Under the plain error standard, defendant would be obliged to show that
(1) an error occurred, (2) the error was plain or obvious, and (3) the error affected
the outcome of the trial. Carines, supra at 763. Reversal is then warranted only if
defendant is actually innocent of the crime or if the error “‘seriously affect[ed] the
fairness, integrity or public reputation of [the] judicial proceedings . . . .’” Id.,
quoting United States v Olano, 507 US 725, 736; 113 S Ct 1770; 123 L Ed 2d 508.
(1993) (internal citation omitted; brackets in original).



                                           8

       A trial court’s decision to grant or deny a motion for a new trial is reviewed

for an abuse of discretion.13 A trial court may be said to have abused its discretion

only when its decision falls outside the principled range of outcomes.14

                                     ANALYSIS

       First, we conclude that the trial court acted within its discretion in denying

defendant’s motion for a new trial. At trial, defendant moved that he be “allowed

somehow” to introduce the unavailable witnesses’ statements as impeachment

evidence.15 At the new-trial hearing, he argued that MRE 806 required admission

of the statements. The trial court concluded that evidence impeaching hearsay

declarants that qualifies for admission under MRE 806 is not automatically

admissible.     Rather, other jurisdictions have held with regard to the rule’s

counterparts, FRE 806 and similar state provisions, that such evidence is still

subject to the balancing test under MRE 403 or its equivalent. The trial court’s

conclusion is supported by the plain language of MRE 806, which provides that

the credibility of the declarant “may be attacked, and if attacked may be supported

. . . .” (Emphasis added.) There is nothing in the rule of evidence that requires

admission of an inconsistent statement, and MRE 806 provides no greater leeway
       13
            People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). 

       14
            People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). 

       15
          The dissent asserts, and the prosecution appears to assume, that defendant 

moved for admission under MRE 613. Post at 7 n 5, 21. The trial transcript
reveals to the contrary that defendant did not cite any court rules. In the face of
his failure to cite any authority, the trial court itself cited MRE 613 among its
reasons for denying defendant’s motion.



                                         9

regarding admissibility of a statement for impeachment purposes than is granted to

litigants offering impeachment evidence in general.16         This Court expressly

permits employing a balancing analysis under MRE 403 when considering the

admissibility of other forms of impeachment evidence. See People v Brownridge,

459 Mich 456, 461; 591 NW2d 26 (1999). Thus, it is within the trial court’s

discretion to exclude the evidence “if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” MRE 403.17

       “Rule 403 determinations are best left to a contemporaneous assessment of

the presentation, credibility, and effect of testimony” by the trial judge. People v

VanderVliet, 444 Mich 52, 81; 508 NW2d 114 (1993). Assessing probative value

against prejudicial effect requires a balancing of several factors, including the time

       16
          We fail to see the relevance of the dissent’s suggestion that “[i]t is
undisputed that if Simpson and Zantello had testified against defendant at his
second trial, the statements at issue here would have been admissible as prior
inconsistent statements.” Post at 10. We cannot know what testimony Simpson
and Zantello would have given if they had testified at the second trial. It is pure
speculation to assume that the content of their testimony would have justified
admission of their recantations. Further, we have no reason to assume that their
recantations’ admissibility under these hypothetical circumstances would be
“undisputed.” To the contrary, the extent of their admissibility would be debatable
and even the admissible portions would be carefully considered under MRE 403.
       17
         See, e.g., Vaughn v Willis, 853 F2d 1372, 1379 (CA 7, 1988); Arizona v
Huerstel, 206 Ariz 93, 104; 75 P3d 698 (Ariz, 2003); cf. United States v Grant,
256 F3d 1146, 1155 (CA 11, 2001) (requiring admission of evidence under FRE
806 but leaving open whether FRE 403 may sometimes bar evidence otherwise
admissible under FRE 806).



                                         10

required to present the evidence and the possibility of delay, whether the evidence

is needlessly cumulative, how directly the evidence tends to prove the fact for

which it is offered, how essential the fact sought to be proved is to the case, the

potential for confusing or misleading the jury, and whether the fact can be proved

in another manner without as many harmful collateral effects. People v Oliphant,

399 Mich 472, 490; 250 NW2d 443 (1976). Unfair prejudice may exist where

there is a danger that the evidence will be given undue or preemptive weight by

the jury or where it would be inequitable to allow use of the evidence. People v

Mills, 450 Mich 61, 75-76; 537 NW2d 909 (1995), mod on other grounds 450

Mich 1212 (1995). As we have previously noted, a party may strike “‘as hard as

he can above, but not below, the belt.’” People v Vasher, 449 Mich 494, 501; 537

NW2d 168 (1995), quoting McCormick, Evidence (2d ed), § 185, p 439.

       In this case, the court ruled that the recantations would have qualified for

admission under MRE 806, but concluded that their prejudicial nature outweighed

their probative value under MRE 403. The court reasoned that their probative

value was limited because both Zantello and Simpson had been effectively

impeached during cross-examination at the first trial. Zantello’s testimony at the

first trial revealed that she had initially told the police that defendant was home on

the night of the murder and only later asserted his absence. Further, Simpson had

regularly changed his story; his statements varied regarding defendant’s

involvement in the crime.




                                         11

      The court also concluded that the recantations were highly prejudicial;

Zantello and Simpson did not merely recant their former accusations, but provided

lengthy explanations for why they had lied. Simpson’s statement in particular

amounted to an epistle advocating defendant’s acquittal. The court opined that

Simpson’s statement likely would not have been admissible even if he had

testified. At a minimum, Simpson would have been vigorously cross-examined

regarding the statement had he testified.        Yet, because he rendered himself

unavailable at the second trial, he foreclosed the possibility of cross-examination

regarding his wide-ranging assertions.18

      We conclude that the court’s decision was principled and supported by

Michigan law. The trial court reasonably excluded the statements because they

were highly unfairly prejudicial.     Most significantly, to the extent that the

statements’ irrelevant or unfairly prejudicial content could have been redacted as

suggested by the Court of Appeals, their remaining contents would have been

largely cumulative.




      18
         The court also opined that Simpson had consistently attempted to
manipulate the trial process by recanting but then engineering his own absence.
Simpson recanted only after receiving the benefit of immunity from prosecution
and then would not cooperate with the judge at the retrial lest he lose that
immunity. Before the retrial, Simpson wrote to the judge that he would refuse to
testify. He ultimately appeared before the court, but the court declared him
unavailable after he refused to take the stand.



                                           12

       Simpson’s recantation, which is unsworn,19 is an eight-page missive, more

than half of which is devoted to recounting hearsay statements purportedly made

by various attorneys associated with the case. For example, Simpson asserts that

the prosecutor regularly advised Simpson that he “does not believe in ‘God,’” and

that defendant’s own attorney encouraged Simpson to testify against defendant

because Simpson would be “crazy” not to accept the prosecutor’s offer of

immunity. The general tenor of the recantation is that the prosecutor essentially

admitted to Simpson that he intended to convict defendant without regard to

whether defendant was innocent.       Simpson claims that the prosecutor forced

Simpson to commit perjury at the first trial in order to achieve his goal. These

unsworn statements would inject the specter of prosecutorial corruption into the

trial in a manner that the prosecutor could not directly challenge given that

Simpson refused to take the stand; the allegations injected issues into the trial that

went far beyond Simpson’s credibility. Therefore, their potential for misleading

or confusing the jury—and, thus, their potential for unfair prejudice—was great.

       With respect to Zantello’s recanting statement, she claims to have

previously perjured herself as a result of cajoling statements by a former

boyfriend, who never testified and was never cross-examined about his

       19
          Indeed, as the dissent notes, post at 2 n 1, Simpson confirmed that he
accused defendant of the murder each time Simpson testified under oath; he
accused defendant under oath in response to an investigative subpoena as well as
at the first trial. Simpson asserted that defendant was not present at the murder
only in unsworn, out-of-court statements.



                                         13

involvement.    Although Zantello testified briefly at the second trial, she was

unable to answer the prosecutor’s questions because she did not “recall what [she]

said” and did not want to “incriminate [her]self because of [her] former testimony”

inculpating defendant. Both witnesses were thus unwilling or unable to testify

regarding the contents of the statements that they signed just seven and three

months, respectively, before the retrial.

       For these reasons, the trial court reasonably concluded that the statements’

potential for prejudice was great.      They largely contained unduly prejudicial

hearsay and accusations regarding collateral issues with the potential to mislead

the jury. As the Court of Appeals correctly observed, the statements could have

been redacted to the extent that their contents were inadmissible or unduly

prejudicial. But the remaining information was still properly excluded because it

was largely cumulative when used for its only admissible purpose: impeachment.20

Because Simpson and Zantello were impeached with information substantially

similar to the information contained in the statements, we cannot agree with the

dissent that exclusion of the statements “resulted in the jury being painted a false

picture.” Post at 17.

       Specifically, Simpson’s statement admits that he made inconsistent

statements to police beginning in 1989 “when doing so served [his] best

       20
           Significantly, as will be discussed further infra, the central error of the
Court of Appeals’ analysis is that it considers the statements’ contents for their
truth, rather than merely for impeachment purposes.



                                            14

interest[s]. (ie: getting-deals [sic] on other non-related offenses).” He states that

he lied at the first trial to avoid perjury charges and gain immunity from

prosecution. He also reiterates that Lamp had threatened to kill him or his family

if he implicated Lamp. He proceeds to give an account of events on the night of

the murder in which he asserts that Lamp, not defendant, killed Miller. Simpson’s

cross-examination during the first trial, which was read at the second trial, had

similarly revealed that Simpson told varying stories over the years regarding who

was responsible for the murder in order to gain personal advantage. His testimony

also revealed that he had been threatened by Lamp. Simpson also explicitly

acknowledged during the first trial that, if he did not accuse defendant of the

murder at trial as he agreed to do in exchange for full immunity, Simpson would

face various charges, including perjury. The second jury was fully informed of

Simpson’s immunity deal.

       Zantello’s statement similarly repeats assertions that she made at the first

trial and that were read into the record at the second trial. At the first trial and in

her recanting statement, Zantello confirmed that she originally told the police that

she knew nothing about the murder and did not overhear defendant and Simpson

talk about any murder. Indeed, as with Simpson, the primary permissible use of

Zantello’s recantation would have been to show the jury that she had reverted to a

previous version of her story, not that she was claiming defendant’s innocence for

the first time. Accordingly, it is significant that defense counsel succeeded in

confronting Zantello with the fact that she had recanted by explicitly asking her at


                                          15

the second trial whether she remembered making a statement that defendant “was

home when [she] got home and that [she] had lied under oath originally because

[she] had been threatened.” She simply answered: “No, I do not.”

       Under these circumstances, the admissible portions of both statements were

largely cumulative to the remaining evidence relevant to Simpson’s and Zantello’s

credibility, which was presented at both trials and, with regard to Zantello, which

was expanded on during her live testimony at the second trial. Therefore, the trial

judge—who had become familiar with the witnesses over the course of two

trials—did not abuse his discretion when he denied defendant’s motion for a new

trial on the basis of defendant’s argument that admission was required under MRE

806. At a minimum, the trial court was called upon to make a close, discretionary

decision regarding whether the danger of undue prejudice that the statements

presented outweighed their probative nature. Moreover, the court was required to

consider defendant’s claim for admission on the basis of an argument that

defendant did not advance until after trial and, therefore, which the court was

unable to evaluate contemporaneously at the time of the objection. Indeed, at trial,

defendant not only failed to cite a single court rule, but he moved to admit each

statement in its entirety; he did not argue for admission under MRE 806 of

redacted versions of the statements to avoid unfair prejudice to the prosecution.

Under these circumstances, we disagree with the dissent’s contention that

exclusion of the statements amounted to error, let alone plain error. “[T]he trial

court’s decision on a close evidentiary question . . . ordinarily cannot be an abuse


                                        16

of discretion.” People v Sabin (After Remand), 463 Mich 43, 67; 614 NW2d 888

(2000). Here, where the court was faced with the witnesses’ unfairly prejudicial

and largely cumulative inconsistent statements, we cannot say that the court’s

decision lay outside the range of principled outcomes.

      Further, the trial court’s discretionary decision in this case differs from that

of the trial court in United States v Grant, 256 F3d 1146, 1155 (CA 11, 2001), on

which the dissent relies. In Grant, a co-conspirator never testified because he had

been deported before the trial took place. Id. at 1153. The co-conspirator’s

previous, arguably inculpatory statements were read into the record; the statements

circumstantially linked the defendant to the conspiracy but did not directly name

him as a conspirator. Id. at 1152-1153. At trial, defense counsel properly moved

under FRE 806 for admission of exculpatory statements the co-conspirator made

after he had been deported, in which he affirmatively claimed that the defendant

was uninvolved. Id. at 1153.21 The trial court denied the motion, ruling that the

exculpatory statements were not actually inconsistent with the co-conspirator’s

earlier, circumstantially inculpatory statements. Id. The Eleventh Circuit Court of

Appeals reversed, concluding that the trial court’s view of inconsistency was too

narrow and that the exculpatory statements would have significant probative value



      21
           Thus, in contrast to the case before us, defense counsel
contemporaneously argued for admission under FRE 806 at trial. Yet the
prosecutor did not argue that admission created undue prejudice until the issue was
reviewed on appeal. Id. at 1155.



                                         17

with regard to the credibility of the purportedly inculpatory statements. Id. at

1153-1155.

      The circumstances of Grant differ from those of the case before us in

crucial respects. First, the exculpatory statements in Grant were significantly

more probative because they appear to have been the co-conspirator’s only

exculpatory statements. For this reason, in contrast to the instant case, they were

not cumulative. Second, although the prosecutor in Grant observed on appeal that

the exculpatory statements were unreliable because they were made only after the

co-conspirator was deported, the trial court in Grant did not find that the co­

conspirator explicitly attempted to manipulate the trial process by injecting

collateral issues into the trial or gained an advantage by changing his story.

Rather, as noted earlier, the court concluded that the statements did not directly

contradict each other. In sum, without regard to whether we agree with the Grant

court’s holding, we conclude that Grant is distinguishable.22

       Most significantly, even if the trial court in this case erred, any error was

harmless under each of the potentially applicable standards of review.          The

harmless error analysis employed by the Court of Appeals was clearly erroneous



       22
           We agree with the dissent that the facts of Vaughn v Willis, 853 F2d
1372, 1379 (CA 7, 1988), are not perfectly comparable to those of the instant case.
Here, the facts fall on a spectrum somewhere between those of Grant and those of
Vaughn. But the mere fact that the unique circumstances of this case and those of
Vaughn are different in no way requires the conclusion that the trial court abused
its discretion here.



                                        18

for several reasons. On remand, when considering the effect of any error on the

remaining evidence presented at trial, the Court reasoned:

              Lamp’s testimony would be subject to the utmost scrutiny,
      given his undisputed involvement in the murder, his plea agreement,
      and defendant’s theory, supported by many of the impeaching
      statements that were not admitted, that Lamp had done the shooting
      himself. Further, much of the interlocking testimony concerned the
      allegation that defendant killed Miller and cut off his ear at the
      direction of drug dealer Benny Williams. However, police testified
      that they had no evidence connecting Williams to the murder,
      Williams testified that he did not know Miller and had not received
      one of his ears, and police also testified that there was no physical
      evidence indicating that Miller’s ear had been cut off. Regarding
      Mock and her sister, there was testimony that they and defendant
      were always drinking when they were together. Further Mock, her
      sister, and Z[a]ntello, who was supposedly present during some of
      the discussions, gave differing accounts of what defendant said.
      Lastly, we conclude that the evidence overwhelmingly supported
      that defendant knew something about the murder, but his role, and
      the extent of his knowledge and participation or assistance, largely
      depended on Simpson’s testimony.[23]

First and foremost, the court erred as a matter of law by considering the recanting

statements for improper purposes.      It erroneously concluded that defendant’s

theory that Lamp committed the shooting without defendant’s aid would have

been supported “by many of the impeaching statements that were not admitted,

that Lamp had done the shooting himself.” To the contrary, had the statements

been admitted, they could not have been directly considered as evidence in favor

of the defense theory.      They could have been used only for the purpose of



      23
           Blackston II, supra at 9.




                                        19

impeaching the credibility of Simpson and Zantello.24 MRE 806. Thus, at the

very most, the statements would have caused the jury to discredit entirely

Simpson’s and Zantello’s testimony inculpating defendant.          The remaining

untainted evidence—in the form of testimony from Lamp, Mock and Barr—alone

established beyond a reasonable doubt that defendant was at least an accomplice to

first-degree, premeditated murder.

      The Court of Appeals mischaracterizes the untainted evidence by

essentially dismissing the very significant testimony of Mock and Barr. The

sisters both described a specific night and location at Lion’s Park where defendant

tearfully apologized and admitted to them that he had participated in Miller’s

murder.25 Mock recalled that defendant specifically told her that defendant pulled

the trigger and cut off Miller’s ear. Barr recalled defendant saying that defendant

was present at the murder but thought that he said Lamp had pulled the trigger.

Barr also testified that, around the time of the murder, she had been at someone’s

house and “they were saying that Charles’ ear was in the freezer.”           Most

significantly, Mock attested that, in April 1990, in light of defendant’s

confessions, Mock convinced him that he should speak with the police. Defendant

      24
           The dissent similarly errs when it asserts that the content of the
recantations would have supported defendant’s claim of innocence instead of
being used only to undermine the credibility of Zantello and Simpson. See, e.g.,
post at 20.
      25
         Defendant confessed twice: once at Lion’s Park, to Mock and Barr, and
on a separate occasion to Mock and Zantello at Zantello’s house after defendant
had moved out of the house.



                                        20

initially agreed to do so the next day. Mock called the police and told them about

defendant’s admissions but, by the time the police contacted defendant, he refused

to provide them any details. Michigan State Police Detective Sergeant Dana

Averill confirmed that Mock contacted the police and that Mock, Barr, and

Zantello gave statements regarding defendant’s admissions.26            Overall the

substantially consistent testimony of Mock and Barr, which was confirmed in part

by Averill’s testimony, provided strong evidence against defendant. Significantly,

their testimony also directly corroborated Lamp’s testimony and added to his

credibility. The Court of Appeals clearly erred when it simply discounted their

testimony because they were “always drinking when they were together” and

“gave differing accounts of what defendant said.”27



       26
        Averill also spoke to defendant at that time and testified that defendant
never specifically denied his involvement but was uncooperative and said
something like, “When the time comes, the truth will come out and I’ll tell you
when I’m ready.”
       27
          The dissent also discredits the testimony of Mock and Barr. But,
contrary to the dissent’s implications, their testimony was consistent with regard to
defendant’s critical admissions that he was present during and directly involved in
the murder. For example, Barr did come to believe that defendant cut off Miller’s
ear; she simply could not remember whether defendant or someone else had first
told her this. She admitted that she remembered only “pieces” of defendant’s
confession to her and Mock because she had been drinking at the time. The
dissent also emphasizes that Mock was a suspect during the investigation of
Miller’s death. Post at 19. But there is no reason to conclude that the jury would
have entirely discredited Mock’s testimony for this reason. As Mock explained
during her testimony, Mock had been a suspect but she had not been singled out
by the police; rather, she explained that “[e]verybody was” a suspect at the time.
Overall, the dissent focuses on minor discrepancies among the details of Mock’s
and Barr’s testimony. But such discrepancies are unsurprising when the testimony
                                                                       (continued…)

                                         21

       Finally, because Zantello’s and Simpson’s recantations could not have been

introduced for their truth, defendant still would have been left to rely on the

defense theories that he presented at trial to cast doubt on the consistent testimony

from Lamp, Mock, and Barr. His primary alibi defense depended solely on the

testimony of his three sisters, which was suspect because of their obvious bias in

favor of their brother. Defendant also relied, as does the dissent, on Williams’s

unsurprising testimony that, although Williams was a “fairly large-scale cocaine

dealer” at the time of Miller’s murder, he did not commission the murder. A

police officer also attested that the police were unable to link Williams to the

crime. But, significantly, even the defense conceded in closing argument that

Miller planned to steal from Williams; the defense simply argued that Lamp,

“having heard Mr. Miller . . . was going to steal from Benny Williams, fearing that

he, Mr. Lamp, was next, he decided that Miller had to die first.” Regarding the

lack of physical evidence establishing that Miller’s ear had been cut off, all parties

agreed that Miller’s remains were skeletal and that most of the soft tissue had

decayed. Contrary to the implications of defendant and the dissent, no testimony

or physical evidence affirmatively suggests that Miller’s ear was not severed. The

defense also attempted to divert the jury from Lamp’s description of the crime by



(…continued) 

occurred a decade after the relevant events and conversations took place. The jury 

had reason to credit their testimony precisely because of the substantial similarity

of their memories of the relevant events despite this significant lapse in time. 




                                         22

presenting several experts who opined that Miller may have been killed by blunt

force, rather than by a bullet. Yet Lamp himself testified that Lamp had access to

guns and therefore encouraged defendant to shoot Miller instead of beating him to

death, that Lamp provided the gun defendant used to kill Miller, and that Lamp

sold the gun after the crime. Therefore, the defense theory that Miller was beaten,

rather than shot, did little to inculpate Lamp and exculpate defendant.

       In sum, the volume of untainted evidence against defendant was significant.

The facts do not cast reasonable doubt on the prosecutor’s theory of the case. In

particular, nothing in the record suggested that Mock and Barr had any motive to

falsely implicate defendant. They came forward early in the investigation and the

details and timing of their testimony were directly confirmed by the police.

Although Zantello’s and Simpson’s original inculpatory testimony certainly would

strengthen the prosecution’s case, their testimony was not critical for the

prosecution because defendant’s culpability was clearly established by the other

witnesses. Moreover, because the jury had already heard the evidence impeaching

Simpson and Zantello that was offered at the first trial, and had obviously chosen

to disregard it, the likelihood that the jury would have been convinced by

cumulative impeachment evidence was slight in light of the fact that Simpson’s

and Zantello’s inculpatory testimony so clearly coincided with the untainted

evidence. In light of the volume of untainted evidence against defendant, any

error did not affect the outcome of the case.




                                         23

                                  CONCLUSION 


      We hold that the trial court did not abuse its discretion when it denied

defendant’s motion for a new trial on the basis of defendant’s argument that MRE

806 required admission of Simpson’s and Zantello’s highly prejudicial and

cumulative recantations. Further, any error would also have been harmless under

any of the potentially applicable standards of review. The Court of Appeals erred

as a matter of law by considering the recantations for the truth of the matters of

asserted, instead of as impeachment of the recanting witnesses’ testimony, and

improperly dismissed the testimony of two key prosecution witnesses. For these

reasons, we reverse the judgment of the Court of Appeals and remand the case to

that court for consideration of defendant’s remaining issues on appeal.


                                                Maura D. Corrigan
                                                Clifford W. Taylor
                                                Elizabeth A. Weaver
                                                Robert P. Young, Jr.




                                        24

                         STATE OF MICHIGAN


                               SUPREME COURT 



PEOPLE OF THE STATE OF MICHIGAN,

       Plaintiff-Appellant,

v                                                                       No. 134473

JUNIOR FRED BLACKSTON,

       Defendant-Appellee.

_______________________________

MARKMAN, J. (dissenting).

       Following a jury trial, defendant was convicted of first-degree murder.

However, the trial court granted defendant’s motion for a new trial because the

jury was misinformed regarding the extent of the immunity granted to a witness in

exchange for that witness’s testimony against defendant. After the first trial, but

before the second trial, two witnesses, in signed, written statements, recanted the

testimony that they had provided in the first trial against defendant. Although the

trial court admitted these witnesses’ testimony from the first trial, the trial court

excluded their recanting statements. Following a second jury trial, defendant was

again convicted of first-degree murder.      The Court of Appeals reversed and

remanded for a new trial, concluding that the trial court had abused its discretion

in excluding the recanting statements and that the error was not harmless. The

majority here today reverses the Court of Appeals, concluding that the trial court
did not abuse its discretion in excluding the statements and that any error was

harmless. Because I agree with the Court of Appeals that the trial court abused its

discretion in excluding the statements and that this error was not harmless, I

dissent.

                       I. FACTS AND PROCEDURAL HISTORY

       In 2001, following a jury trial, defendant was convicted of first-degree

murder for the shooting death of Charles Miller in 1988. During this first trial,

Guy Simpson, an alleged accomplice who was given full immunity in exchange

for his testimony against defendant, testified that defendant, Charles Lamp, and

himself were present when Miller was shot, but that defendant was the one who

actually shot Miller.1 He also testified that defendant cut off Miller’s ear and that

defendant had told him that he needed to show Miller’s ear to Benny Williams, a

local drug dealer. Simpson admitted that he had, in the past, told several different

versions of the events, including one in which only he and Lamp, and not

defendant, were involved in Miller’s death. However, a police officer testified

that Simpson’s version of the events had always been the same-- defendant was



       1
          Before Simpson testified, Simpson stated that his previous statement
under oath against defendant, pursuant to an investigative subpoena, was not
truthful, and that he now wanted to testify truthfully, but he was concerned that if
he did so he could be charged with perjury. When the court instructed him that he,
indeed, could be charged with perjury if he testified differently from his previous
statement, Simpson stated, “so, it’ll put a hindrance on my testimony today.”
Neither the jury at the first trial nor the jury at the second trial was privy to this
conversation.



                                          2

the shooter-- on the occasions that he had interviewed Simpson. Simpson also

confirmed that Lamp had, in the past, threatened to kill him if he endangered

Lamp’s plea agreement in any way. Finally, Simpson testified that defendant had

an affair with Lamp’s wife.

       Lamp, who testified pursuant to a plea agreement under which he pleaded

guilty of manslaughter and received a 10- to 15-year sentence, also testified that

defendant shot Miller while Lamp and Simpson were present, and that defendant

cut off Miller’s ear.    Lamp further testified that defendant killed Miller for

Williams. He admitted that he had once threatened to kill Simpson if Simpson

talked to the police. Lamp eventually took the police to the location where

Miller’s remains were found.

       Darlene Zantello, defendant’s girlfriend at the time of the murder but no

longer so at the time of the trial, testified that when she arrived home on the night

of the murder, nobody was there; defendant and Simpson arrived later, and she

heard them talking about blowing someone’s head off and cutting someone’s ear

off. She also testified that about a year or two later, while they were all drinking,

she heard defendant say to Rebecca Mock, Miller’s girlfriend at the time of his

death, that he was sorry that “they did what they did,” although he did not say that

he was the one who did it. On cross-examination, Zantello denied that she had

initially told the police that defendant was at home when she arrived there and that

defendant was not involved in Miller’s death.




                                         3

       Rebecca Mock and her sister, Roxann Barr, testified that one night when

they were all drinking, defendant admitted being present when Miller was killed.

However, Mock and Barr offered differing accounts of what exactly defendant

said, including whether he stated that he killed Miller.2

       Three of defendant’s sisters supported his alibi defense. They all testified

that he was at home on the night that Miller was killed. According to Lamp and

Simpson, defendant killed Miller for Williams, but Williams testified that he did

not know Miller or anything about Miller’s death, and there is no evidence linking

Williams to Miller. In fact, a police officer testified that the police had concluded

that Williams was not involved in the murder. Finally, contrary to the testimony

of Simpson and Lamp, the police testified that there was no physical evidence

indicating that Miller’s ear had been cut off.

       After the first trial, the trial court granted defendant’s motion for a new trial

because the jury had been misinformed regarding the extent of the immunity that


       2
          Mock testified that defendant said that he was the shooter, but Barr
testified that defendant did not admit to being the shooter. In addition, Mock
testified that defendant said that he cut off Miller’s ear, but Barr testified that she
did not think that defendant said anything about cutting off Miller’s ear. Both
Mock and Barr admitted that Mock had been a suspect in Miller’s murder.
        In addition, Lamp testified that when he arrived at defendant’s house,
Simpson was already there and Miller arrived later. However, Simpson testified
that when he arrived at defendant’s house, Miller was there, and Lamp arrived
later. Meanwhile, Mock testified that defendant and Lamp came to her house to
pick Miller up, but that Miller was not ready then, so he went to defendant’s house
later. Finally, Zantello testified that Simpson was at defendant’s house before
Miller.



                                           4

was granted to Simpson in exchange for his testimony against defendant. After

the first trial, but before the second trial, Simpson and Zantello provided signed

and written statements recanting the testimony that they had presented against

defendant at his first trial.

       Simpson’s signed and written statement explained that Lamp was the one

who shot Miller, and that defendant was not even present when Lamp did so.

Simpson stated that defendant was at home when he left with Miller and Lamp,

and that defendant was still at home when Lamp dropped him off at defendant’s

house later that evening after Lamp shot Miller in front of Simpson. As far as he

knew, defendant was at home that entire evening. Simpson further stated that the

prosecutor threatened to charge him with obstruction of justice if he did not testify

against defendant, but promised him “full immunity” if he testified against

defendant, even though Simpson asserted that he told the prosecutor that defendant

was innocent. He also explained that all his statements to the police implicating

defendant were given while he was incarcerated for unrelated crimes and were

given to benefit himself while he was facing criminal charges.           Finally, he

explained that he was not making these statements because of his friendship with

defendant as he had not seen defendant in over 11 years.

       Similarly, Zantello explained in a signed, written, notarized affidavit that

the first statement that she gave to the police was the truth; that is, defendant was

at home when she arrived home that evening and she did not know anything about

Miller’s murder. She explained that about 10 months after the murder, she was


                                         5

arrested for disorderly conduct and was instructed to implicate defendant in

Miller’s murder.     She further explained that her boyfriend at the time of

defendant’s first trial, Robert Lowder, was released from jail even though he had

two felony charges pending against him. Lowder told her that if she testified

against defendant, he would not go to prison for his felony charges.               The

prosecutor in charge of Lowder’s case was also the prosecutor in charge of

defendant’s case, and she was afraid of Lowder. The two felony charges pending

against Lowder were for beating her.            Finally, she admitted that she never

overheard any conversations about Miller’s murder, and that defendant had always

told her that he was not involved in Miller’s murder.3

       At defendant’s second trial, the court ruled that Simpson and Zantello were

unavailable on the basis of their unwillingness to testify and alleged memory

problems.4 Although the trial court admitted these witnesses’ testimony from the


       3
           Defendant argues that it is unlikely that Zantello is lying to help him,
given that she sent a letter to defendant the day after she testified against him at his
first trial stating that she hated him and hoped that he would die in prison, and she
signed the affidavit recanting her testimony against defendant after this.
       4
         Simpson said that he would testify after he was allowed to shower because
apparently he was in the “hole” the night before and was not allowed to shower.
The trial court deemed this to be a refusal to testify. Simpson did not testify even
though his counsel warned him on the record that there was a “strong possibility”
that he would be charged with perjury if he did not testify and that he was “risking
his immunity that was granted to him.” Zantello took the stand and stated that she
could not recall any of the events because of her long-term drinking problem. One
of the issues that defendant raised on appeal was whether the trial court erred in
considering Simpson and Zantello unavailable. Given its holding on the present
issue, the Court of Appeals did not address this issue.



                                           6

first trial as prior testimony of unavailable witnesses under MRE 804(b)(1), it

excluded their subsequent recanting statements. In 2002, following a second jury

trial, defendant was again convicted of first-degree murder.

       The trial court denied defendant’s motion for a new trial, holding that

although the witnesses’ recanting statements were admissible under MRE 806,

they were properly excluded under MRE 403.5                 The Court of Appeals

subsequently reversed and remanded for a new trial.             People v Blackston,

unpublished opinion per curiam of the Court of Appeals, issued January 18, 2005

(Docket No. 245099). In response to the prosecutor’s application for leave to

appeal, this Court vacated the Court of Appeals judgment and remanded to the

Court of Appeals “for reconsideration of the issue whether the trial court’s error, if

any, in excluding the statements in question was harmless beyond a reasonable

doubt.” 474 Mich 915 (2005). This Court further stated, “The court should fully

evaluate the harmless error question by considering the volume of untainted




       5
         During defendant’s second trial, defense counsel objected to the exclusion
of the recanting statements on the basis of MRE 613 (prior inconsistent
statements), but not on the basis of MRE 806 (attacking credibility of declarant).
However, defendant raised the MRE 806 argument in his motion for a new trial.
Although the majority claims that defendant did not even rely on MRE 613 at trial,
ante at 9 n 15, the prosecutor has repeatedly conceded to the contrary. See
Plaintiff-Appellant’s Application For Leave, pp 4, 15, and Plaintiff-Appellant’s
Supplemental Brief, p 2. Further, what remains most significant in this regard is
that defendant attempted to introduce the recanting statements and the trial court
excluded them, and, as discussed later, this constituted a plain error that justifies a
new trial.



                                          7

evidence in support of the jury verdict, not just whether the declarants were

effectively impeached with other inconsistent statements at the first trial.” Id.

       On remand, the Court of Appeals held that the error was not harmless

beyond a reasonable doubt, and, thus, again reversed and remanded for a new trial.

People v Blackston (On Remand), unpublished opinion per curiam of the Court of

Appeals, issued May 24, 2007 (Docket No. 245099).                In response to the

prosecutor’s second application for leave to appeal, we ordered and heard oral

argument on whether to grant the application or take other peremptory action. 480

Mich 929 (2007). The majority now reverses the Court of Appeals.

                               II. STANDARD OF REVIEW

       A trial court’s decision to exclude evidence is reviewed for an abuse of

discretion. Elezovic v Ford Motor Co, 472 Mich 408, 419; 697 NW2d 851 (2005).

A trial court’s decision to deny a motion for a new trial is likewise reviewed for an

abuse of discretion. Barnett v Hidalgo, 478 Mich 151, 158; 732 NW2d 472

(2007). The court abuses its discretion when it chooses an outcome falling outside

the principled range of outcomes. People v Babcock, 469 Mich 247, 269; 666

NW2d 231 (2003).

       I agree with the majority that it is unnecessary to determine whether the

error here was preserved, constitutional error or unpreserved, non-constitutional

error. However, unlike the majority, I reach this conclusion because I believe that

even assuming that the error was unpreserved, non-constitutional error, and thus

that the most difficult standard for defendant to satisfy is applicable, the error here


                                          8

was not harmless and defendant is entitled to a new trial. As will be discussed

more thoroughly in part III(B), assuming that the error is unpreserved, non­

constitutional error, defendant must satisfy the plain-error standard of review,

which requires him to establish: (1) that there was error; (2) that the error was

plain; (3) that the error affected the outcome of the lower court proceeding; and (4)

that the error resulted in the conviction of an actually innocent defendant or that

the error “‘“seriously affect[ed] the fairness, integrity or public reputation of

judicial proceedings . . . .”’” People v Carines, 460 Mich 750, 763-764; 597

NW2d 130 (1999) (citation omitted). In my judgment, he has clearly satisfied

even this standard.

                                     III. ANALYSIS

                            A. EXCLUSION OF EVIDENCE

       As discussed earlier, although the trial court admitted Simpson’s and

Zantello’s testimony from the first trial, it excluded their subsequent recantations.

I agree with the Court of Appeals that the trial court abused its discretion when it

excluded this evidence. MRE 806 provides:

              When a hearsay statement, or a statement defined in Rule
       801(d)(2)(C), (D), or (E), has been admitted in evidence, the
       credibility of the declarant may be attacked, and if attacked may be
       supported, by any evidence which would be admissible for those
       purposes if declarant had testified as a witness. Evidence of a
       statement or conduct by the declarant at any time, inconsistent with
       the declarant’s hearsay statement, is not subject to any requirement
       that the declarant may have been afforded an opportunity to deny or
       explain. If the party against whom a hearsay statement has been
       admitted calls the declarant as a witness, the party is entitled to



                                         9

       examine the declarant on the statement as if under cross­
       examination. [Emphasis added.]

       MRE 806 specifically states that when hearsay statements are admitted, the

credibility of the declarant may be attacked by any evidence that would have been

admissible if the declarant had testified. It is undisputed that if Simpson and

Zantello had testified against defendant at his second trial, the statements at issue

here would have been admissible as prior inconsistent statements.6

       At the motion for a new trial, the trial court agreed that the recanting

statements were admissible under MRE 806, but concluded that the statements

were “more prejudicial [than] probative,” and, thus, were properly excluded under

MRE 403. MRE 403 provides:

              Although relevant, evidence may be excluded if its probative
       value is substantially outweighed by the danger of unfair prejudice,
       confusion of the issues, or misleading the jury, or by considerations
       of undue delay, waste of time, or needless presentation of
       cumulative evidence.




       6
         MRE 806 states that a defendant may introduce evidence that attacks the
credibility of declarants if this evidence would have been “admissible for those
purposes if declarant had testified as a witness.” That is, if the recanting
statements would have been admissible to attack the credibility of the declarant if
the declarant had testified according to the hearsay statement, they are admissible
to attack the credibility of the declarant when only the hearsay statement is
admitted. Contrary to the majority’s view, ante at 10 n 16, MRE 806 requires us
to assume that the declarant’s testimony would have been consistent with the
hearsay statement. Moreover, again contrary to the majority’s view, ante at 10 n
16, I believe it is “undisputed” that the recanting statements here would have been
admissible had declarants testified at trial, particularly given that the prosecutor
has not argued otherwise even though this is one of the requirements of MRE 806.



                                         10

       “Evidence is not inadmissible simply because it is prejudicial. Clearly, in

every case, each party attempts to introduce evidence that causes prejudice to the

other party.” Waknin v Chamberlain, 467 Mich 329, 334; 653 NW2d 176 (2002).

“‘“Relevant evidence is inherently prejudicial; but it is only unfair prejudice,

substantially outweighing probative value, which permits exclusion of relevant

matter under Rule 403 . . . .”’” Id. (citations omitted). “In this context, prejudice

means more than simply damage to the opponent’s cause. A party’s case is

always damaged by evidence that the facts are contrary to his contentions, but that

cannot be grounds for exclusion.” People v Vasher, 449 Mich 494, 501; 537

NW2d 168 (1995). MRE 403 “‘“is not designed to permit the court to ‘even out’

the weight of the evidence . . . or to make a contest where there is little or none.”’”

Waknin, 467 Mich at 334 (citations omitted). Instead, the rule only prohibits

evidence that is unfairly prejudicial. “Evidence is unfairly prejudicial when there

exists a danger that marginally probative evidence will be given undue or

preemptive weight by the jury.” People v Crawford, 458 Mich 376, 398; 582

NW2d 785 (1998).

       Given that the excluded evidence at issue here would have impeached two

critical prosecutorial witnesses, this evidence cannot possibly be considered

“marginally probative evidence,” and, thus, cannot possibly be considered

“unfairly prejudicial.” Therefore, the trial court’s holding to the contrary “fall[s]

outside th[e] principled range of outcomes,” Babcock, 469 Mich at 269, and thus

constitutes an abuse of discretion.


                                          11

      Where a Michigan rule of evidence is modeled after its federal counterpart,

it is appropriate to look to federal precedent for guidance, People v Barrera, 451

Mich 261, 267; 547 NW2d 280 (1996), although the latter is never dispositive.

Both MRE 806 and MRE 403 are identical to their federal counterparts. In United

States v Grant, 256 F3d 1146 (CA 11, 2001), a co-conspirator, Deosie Wilson,

made statements during the conspiracy to an undercover police officer that

implicated the defendant. Subsequently, Wilson signed an affidavit stating that

the defendant was not involved in the crimes. The trial court admitted Wilson’s

statements to the undercover police officer, but excluded Wilson’s subsequent

affidavit. Id. at 1152-1153. The Eleventh Circuit Court of Appeals reversed,

concluding that the affidavit was admissible under FRE 806 and could not be

excluded under FRE 403. That court explained:

             Rule 403 is an “extraordinary remedy,” whose “major
      function . . . is limited to excluding matter[s] of scant or cumulative
      probative force, dragged in by the heels for the sake of [their]
      prejudicial effect.” The Rule carries a “strong presumption in favor
      of admissibility.” Wilson’s inculpatory co-conspirator statements
      were important pieces of evidence in the government’s case. The
      impeaching statements in the affidavit would serve to cast doubt on
      Wilson’s credibility and would have significant probative value for
      that purpose. Whatever prejudice to the government that might
      occur from admitting the affidavit statements could not substantially
      outweigh their probative value, anymore than it could if those
      affidavit statements had been admitted for impeachment following
      live testimony of Wilson to the same effect as his co-conspirator
      statements. [Id. at 1155 (citations omitted).]

      In Vaughn v Willis, 853 F2d 1372 (CA 7, 1988), plaintiff Terry Vaughn, an

inmate, testified that defendant Henry Willis, a guard, helped several inmates rape



                                        12

Vaughn. Alvin Abrams, another inmate, testified during a deposition that he saw

Willis help the inmates rape Vaughn. Before the trial in this civil action, Abrams

wrote a letter to Willis’s attorney stating that he would not testify at the trial and

that he had made some mistakes during his deposition. Subsequently, Abrams was

allowed to correct the mistakes made in his deposition, which simply pertained to

the sequence in which the assailants entered Vaughn’s cell, and again swore to the

truthfulness of the deposition testimony. However, at trial, Abrams refused to

testify, stating, in the absence of the jury, that he would not testify because he

feared for his life, as well as the lives of his family. Id. at 1377-1378. The trial

court admitted Abrams’s deposition testimony, but excluded Abrams’s letter to

Willis’s attorney on the basis that “the possibility of prejudice far outweighed any

probative value the letter might have.” Id. at 1379.

       The Seventh Circuit Court of Appeals affirmed the trial court’s decision to

exclude the letter for several reasons.     First, the letter’s probative value was

minimal because it was “very ambiguous.” Id. at 1379. Second, the letter had the

potential of confusing the jury because it referred to mistakes that the witness had

made in his prior testimony, but those mistakes pertained only to irrelevant details

and had subsequently been corrected. Id. at 1380. The court’s third reason for

affirming the trial court’s decision to exclude the letter was that the witness did not

want this letter disclosed because he “fear[ed] for his safety and that of his

family.” Id.




                                          13

       In the instant case, the trial court held that Vaughn is “more akin to our case

in the sense that, although it wasn’t prior trial testimony, it was prior testimony

given in a deposition where there was a full right to cross examine, and the

subsequent statement was a letter.” I respectfully disagree. Both Grant and the

instant case involve a statement by a witness/accomplice followed by a recanting

statement by that same witness/accomplice. Vaughn, on the other hand, involved

a statement by an eyewitness, not an alleged accomplice, followed by a letter

refusing to testify, not a recanting statement. Unlike in Grant and in the present

case, the letter in Vaughn did not assert that the witness’s earlier statement was

untrue. The probative value of the letter in Vaughn does not even remotely

compare to the probative value of the subsequent recanting statements in Grant

and in the present case because in the latter cases, the witnesses expressly stated

that their previous statements were untrue. Furthermore, unlike in Vaughn, the

recanting statements at issue in Grant and in the instant case were not at all

ambiguous. To the contrary, they very clearly stated that the previous statements

were untrue. In addition, unlike in Vaughn, neither Grant nor the instant case

involves a witness who wants his subsequent statement excluded because he fears

for either his own or his family’s safety.

       Grant and the instant case are similar in another respect. In Grant, the

prosecutor argued that the subsequent statement should be excluded because it

would provide a “complete defense” and because it was “particularly unreliable.”

Grant, 256 F3d at 1155. Similarly, in the instant case, the trial court excluded the


                                             14

subsequent statements because they were an “advocacy for acquittal” and because

the witnesses’ “manipulative nature” made him “skeptical.” However, the Court

in Grant rejected these arguments, stating:

              The evidence of the affidavit statements could do no more
       than impeach and could not provide “a complete defense” if the
       government requested the limiting instruction to which it would have
       been entitled. See Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct.
       727, 733, 145 L. Ed.2d 727 (2000) (“A jury is presumed to follow its
       instructions.”).

               The government’s second fallback argument is that Wilson’s
       affidavit statements were properly excluded from evidence because
       they were particularly unreliable . . . . The government maintains
       that because the statements in the affidavit were so unreliable,
       admitting them would not have affected the outcome of the trial—
       sort of a harmless error argument.

              The government’s argument on this point is more than a little
       inconsistent with its Rule 403 argument that the affidavit statements
       were terribly prejudicial to its case. Putting that inconsistency aside,
       however, Rule 806 made the statements admissible for impeachment
       purposes, and the point of admitting inconsistent statements to
       impeach is not to show that they are true, but to aid the jury in
       deciding whether the witness is credible; the usual argument of the
       party doing the impeaching is that the inconsistent statements show
       the witness is too unreliable to be believed on important matters.
       See United States v. Graham, 858 F.2d 986, 990 n. 5 (5th Cir.1988)
       (“[T]he hallmark of an inconsistent statement offered to impeach a
       witness’s testimony is that the statement is not hearsay within the
       meaning of the term, i.e., it is not offered for the truth of the matter
       asserted, see Fed.R.Evid. 801(c); rather, it is offered only to establish
       that the witness has said both ‘x’ and ‘not x’ and is therefore
       unreliable.”). Given all the circumstances of this case, that strategy
       might well have worked to undermine the probative effect of
       Wilson’s co-conspirator statements to such an extent that the verdict
       on the conspiracy charge would have been different. For that reason,




                                          15

       we reverse Grant’s conviction on that charge. [Grant, 256 F3d at
       1155-1156.][7]

       These same arguments should likewise be rejected in this case.            The

subsequent statements here are not admissible to prove that defendant was not the

shooter.   Instead, they are admissible to show that two of the prosecutor’s

witnesses are not credible. As the Court of Appeals explained:

              [T]he statements were not offered to prove the truth of what
       was in them, but to attack the witnesses’ credibility. As in Grant,
       the very reason the court excluded the statements, because it
       questioned the veracity and credibility of the witnesses, made the
       statements all the more probative on the credibility issue. Defendant
       should have been free to show the jury that the witnesses were
       unworthy of belief. Credibility is always a question for the jury, and
       the court erred in concluding that it would have been proper to
       insulate the jury from the witnesses’ contradictory statements.
       [Blackston (On Remand), supra at 7-8.]

       The probative value of the recanting statements was not substantially

outweighed by the danger of unfair prejudice under MRE 403. The probative

value of these statements is evinced by the fact that there is a specific rule of

evidence, MRE 806, that provides that this very kind of evidence, i.e., evidence

attacking the credibility of a declarant when that declarant’s hearsay statement is

being used against the defendant, is admissible. The probative value of these

recanting statements was especially significant given that the prior testimony of


       7
         Although the majority concedes that Vaughn is distinguishable from the
instant case, it argues that Grant is also distinguishable from the instant case. Ante
at 17-18. While Grant and the instant case are not identical, for the reasons
discussed earlier, I believe that Grant is sufficiently similar to be of considerable
guidance.



                                         16

these two witnesses was obviously extremely damaging.              The only “unfair

prejudice” at issue in this case was caused by the trial court’s exclusion of the

recanting statements, because it resulted in the jury being painted a false picture.

If the recanting statements had been placed before the jury, the prosecutor would,

of course, have been free to argue to the jury that the recanting witnesses had

manufactured their testimony. However, instead, the jurors were told that one

witness previously testified that defendant was the shooter and the other one

testified that she overheard defendant and a co-defendant talking about blowing

somebody’s head off without being informed that the first witness subsequently

stated that defendant was not even present when the victim was killed and that the

second witness subsequently stated that she never heard defendant talking about

the murder. This was critical evidence of which the jury, in fairness, should not

have been deprived. For these reasons, I agree with the Court of Appeals that the

trial court abused its discretion in excluding the recanting statements.8




       8
         The majority argues that the recanting statements included irrelevant and
unfairly prejudicial content; however, as the majority concedes, any such material
could have been redacted. Ante at 12, 14. The key assertions made in the
recanting statements were that these witnesses’ prior testimonies against defendant
were untruthful; these assertions were clearly not irrelevant or unfairly prejudicial
and thus should not have been excluded from the jury. In addition, for the reasons
discussed later in the “harmless error” section, I disagree with the majority that the
recanting statements were merely cumulative, ante at 12, 14-16, 23.



                                         17

                            B. HARMLESSNESS OF ERROR

       I also agree with the Court of Appeals that the error was not harmless.

Simpson testified that defendant was the shooter. However, Simpson testified

against defendant in exchange for full immunity; before testifying at the first trial,

he indicated that he wanted to testify truthfully but was concerned that he would

be charged with perjury if his testimony conflicted with his previous statement;

Simpson has told several different versions of the events; in his very first

statement to the police, Simpson said that Lamp was the shooter and that

defendant was not even there, which is consistent with his most recent statement;

Simpson testified that defendant cut off Miller’s ear, but the police testified that

there is no physical evidence indicating that Miller’s ear had been cut off;

Simpson testified that defendant killed Miller for Williams, but Williams testified

that he did not even know Miller and the police indicated that there was no

evidence that Williams was in any way involved with Miller’s death; and Lamp

threatened to kill Simpson if he said anything to the police to endanger his plea

agreement, a threat on which Simpson believed Lamp would follow through.

       Lamp also testified that defendant shot Miller.        However, Lamp also

testified against defendant in exchange for a plea agreement; Lamp testified that

defendant cut off Miller’s ear, but the police testified that there was no physical

evidence indicating that Miller’s ear had been cut off; Lamp testified that

defendant killed Miller for Williams, but Williams testified that he did not even

know Miller, and the police indicated that there was no evidence that Williams


                                         18

was in any way involved in Miller’s death; Lamp threatened to kill Simpson if he

said anything to the police to endanger his plea agreement; defendant had an affair

with Lamp’s wife; and, finally, Simpson has stated that Lamp shot Miller.

       Zantello testified that defendant was not at home when she arrived at home

and that she overheard defendant and Simpson talking about blowing off

somebody’s head. However, in her very first statement to the police she said that

defendant was home when she arrived there and that defendant was not involved

in Miller’s murder, which is consistent with her most recent statement; and she

testified that she overheard defendant and Simpson talking about cutting off

somebody’s ear, but the police testified that there is no physical evidence

indicating that Miller’s ear had been cut off.

       Mock testified that defendant told her that he shot Miller. However, Mock

was a suspect in Miller’s murder; Barr, who witnessed the same conversation,

testified that defendant did not say that he was the shooter9 and that they were all

drunk when this confession allegedly occurred; and, finally, Mock testified that

defendant said that he cut off Miller’s ear, but Barr testified that she did not think

that defendant said anything about cutting Miller’s ear off, and the police testified

that there was no physical evidence indicating that Miller’s ear had been cut off.



       9
        The majority claims that there were only “minor discrepancies” between
Mock’s and Barr’s testimony. Ante at 21 n 27. Given that Mock testified that
defendant said that he was the one who killed Miller and Barr testified that
defendant did not say he was the one who killed Miller, I disagree.



                                         19

       There are also inconsistencies between the testimonies of Lamp, Simpson,

Mock, and Zantello regarding who showed up when at defendant’s house on the

night that Miller was murdered. See note 2, supra. Finally, three of defendant’s

sisters testified that defendant was home the night that Miller was killed.

       The evidence against defendant, in other words, was anything but

overwhelming. All the prosecutor’s witnesses had compelling motives to lie.

Simpson, Lamp, and Mock were all suspects.           Zantello was defendant’s ex­

girlfriend and, according to Zantello, her then-current boyfriend, who beat her,

forced her to testify against defendant because the prosecutor-- the same

prosecutor prosecuting defendant’s case-- allegedly promised him no prison time

if she did so. Under these circumstances, excluding Simpson’s and Zantello’s

written statements that indicated that defendant was innocent was not harmless

error. These statements could very well have caused the jury to have reasonable

doubt about defendant’s guilt.

       The prosecutor argues that the recanting statements are cumulative because

the jury already heard evidence that Simpson and Zantello had made prior

inconsistent statements. However, Zantello’s earlier inconsistent statement made

to the police just after the incident and while she was still living with defendant

did not undermine her first trial testimony to the extent that her later written

statement would have. As the Court of Appeals explained:

              The jury heard evidence that Zantello’s first statements to
       police were that defendant was home when she returned from the
       hospital, and that she knew nothing about Miller’s disappearance


                                         20

      except that defendant was not involved. However, these statements
      were given shortly after Miller’s disappearance, and when Zantello
      was living with defendant. The jury could have easily decided that
      the earlier inconsistent statements did not undermine the trial
      testimony, reasoning that Zantello had given a statement in March,
      1990 that incriminated defendant, and that at the time of trial,
      Zantello was no longer involved with defendant, and was therefore
      no longer willing to lie in his behalf. The fact that Zantello
      reaffirmed her earlier position shortly before the second trial would
      have undermined her trial testimony in a way that the earlier
      statements could not. [Blackston (On Remand), supra at 8.]

      In addition,

      [r]egarding Simpson, although he was impeached with having given
      prior inconsistent versions of what happened to Miller, as set forth
      above, and he admitted at the first trial that he had told Jody
      Harrington shortly after the shooting that only he and Lamp were
      involved, he also admitted telling police that he never made such a
      statement to Harrington. Further, Detective Sergeant Averill testified
      that Simpson had remained consistent in the version of events he
      claimed to have witnessed, and stated that Simpson’s testimony at
      defendant’s first trial had been consistent with this version of events.
      Had Simpson’s inconsistent written statement . . . been admitted
      under MRE 806, the jury would have had a very different view of
      Simpson’s credibility. [Id.]

      Because the evidence against defendant is by no means overwhelming, and

because the excluded evidence was significantly probative, I agree with the Court

of Appeals that the error here was not harmless.

      Even assuming that the issue was not properly preserved because, although

defendant objected to the exclusion of the evidence on the basis of MRE 613, he

did not object on the basis of MRE 806, MRE 103(d) provides that unpreserved

“plain errors affecting substantial rights” can be raised for the first time on




                                        21

appeal.10 As discussed in part II, in order for a defendant to obtain relief for an



      10
         The prosecutor arguably should be precluded from asserting that the issue
is unpreserved given that, in his brief to the Court of Appeals, he conceded that
defendant “had brought a motion for a new trial on this basis expressly under
MRE 806, and thereby, preserved the issue for appeal” and stated that as “a
preserved claim of constitutional error, this Court must determine whether the
people have established beyond a reasonable doubt that any error was harmless.”
Moreover, the error was arguably properly preserved under MRE 103, which
provides:

             (a) Effect of erroneous ruling. Error may not be predicated
      upon a ruling which admits or excludes evidence unless a substantial
      right of the party is affected, and

             (1) Objection. In case the ruling is one admitting evidence, a
      timely objection or motion to strike appears of record, stating the
      specific ground of objection, if the specific ground was not apparent
      from the context; or

             (2) Offer of proof. In case the ruling is one excluding
      evidence, the substance of the evidence was made known to the
      court by offer or was apparent from the context within which
      questions were asked. Once the court makes a definitive ruling on
      the record admitting or excluding evidence, either at or before trial, a
      party need not renew an objection or offer of proof to preserve a
      claim of error for appeal.

                                       ***

            (d) Plain error. Nothing in this rule precludes taking notice of
      plain errors affecting substantial rights although they were not
      brought to the attention of the court.

       Given that the trial court excluded evidence, all that was required to
preserve the issue under MRE 103(a)(2) was to make “the substance of the
evidence . . . known to the court.” Nobody disputes the fact that “the substance of
the evidence was made known to the court.” Further, the error arguably denied
defendant his right to confront witnesses against him, and thus was arguably of
constitutional dimension.

                                                                      (continued…)

                                        22

unpreserved error, the defendant must establish: (1) that there was an error; (2)

that the error was plain; (3) the error affected the outcome of the lower court

proceedings; and (4) the error resulted in the conviction of an actually innocent

defendant or that it “‘“seriously affect[ed] the fairness, integrity or public

reputation of judicial proceedings. . . .”’” Carines, 460 Mich at 763 (citation

omitted).   Because Simpson’s and Zantello’s recanting statements are clearly

admissible under MRE 806, and should not have been excluded under MRE 403,

there was error, and the error was plain. Because the evidence against defendant

was by no means overwhelming, the exclusion of the recanting statements of the

prosecutor’s two critical witnesses may very well have been outcome

determinative, and the error may have resulted in the conviction of an actually

innocent defendant.

      Alternatively, the error certainly and seriously affected the fairness,

integrity, and public reputation of the judicial proceeding.        The jury was

affirmatively apprised that two witnesses previously testified against the defendant

(one testified that he saw defendant shoot Miller and the other testified that she

(…continued)
       If the error was constitutional, preserved error, the prosecutor would be
required to prove that the error was harmless beyond a reasonable doubt. People v
Anderson, 446 Mich 392, 406; 521 NW2d 538 (1994). If the error was non­
constitutional, preserved error, defendant would be required to prove that it was
more probable than not that the error was outcome determinative. People v Lukity,
460 Mich 484, 495-496; 596 NW2d 607 (1999). As discussed in part II, it is
unnecessary to determine whether the error was constitutional or non­
constitutional, or preserved or unpreserved, because even assuming that it was
unpreserved, non-constitutional error, defendant is entitled to relief.



                                        23

heard defendant talking about shooting Miller), but it was never told that these

witnesses subsequently signed written statements indicating that defendant was

actually innocent. By restricting the jury’s access to all of the available evidence,

the trial court presented the jury with a highly distorted view of the state of the

evidence against defendant and thereby deprived the defendant, and the

community, of a fair trial. Therefore, even assuming that the issue is unpreserved,

there was plain error requiring reversal.

                                    IV. CONCLUSION

       The trial court abused its discretion in allowing the jury to hear the hearsay

testimony of two critical witnesses, while excluding their recanting statements,

and in denying defendant’s motion for a new trial. Therefore, I would affirm the

judgment of the Court of Appeals that reversed the trial court and remanded this

case for a new trial.



                                                  Stephen J. Markman
                                                  Michael F. Cavanagh
                                                  Marilyn Kelly




                                            24

