
102 Mich. App. 483 (1980)
301 N.W.2d 903
PEOPLE
v.
HALL
Docket No. 49448.
Michigan Court of Appeals.
Decided December 15, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Gary Dettloff, Assistant Prosecuting Attorney, for the people.
Arthur H. Landau, for defendant on appeal.
Before: D.C. RILEY, P.J., and J.H. GILLIS and V.J. BRENNAN, JJ.
J.H. GILLIS, J.
Defendant was charged with first-degree felony murder, MCL 750.316; MSA 28.548. He was convicted of second-degree murder, MCL 750.317; MSA 28.549, and sentenced to 25 to 40 years imprisonment. This appeal is brought as of right. GCR 1963, 806.1.
Defendant raises six issues on appeal and requests remand for an evidentiary hearing on the question of whether he was denied effective assistance of counsel with regard to his attorney's failure or refusal to subpoena certain witnesses.
The testimony of the witnesses who were present *487 at trial indicates that during the evening of November 20, 1978, Eddie Godlove answered a knock at his door and was confronted with a male and a female. The man grabbed Godlove, announced a stick-up, and hit Godlove with a gun when Godlove began to yell. The gun discharged, hitting the female accomplice (Shirley Howard) in the neck. The man fled, leaving the woman lying on the floor. She died sometime later.
Mr. Godlove could not identify the man involved in the attempted robbery. Jessie Tolbert testified, however, that he and defendant's brother, Ronald Hall, had joined six other people (including defendant and Ms. Howard) in a Detroit restaurant earlier in the evening of November 20, 1978, in an attempt to borrow some guns owned by defendant and a friend. Tolbert intended to rob Godlove but was unable to persuade defendant and his friend to give up their firearms. However, Tolbert testified that the discussion soon turned to how such a robbery could be committed. Apparently, unnamed members of the group decided that a female should knock on Godlove's door and one or more of the men would rush in as soon as the door was opened.
Tolbert and Ronald Hall left the restaurant with two other members of the group (Daisy Brewster and Bunny). Later, defendant's brother received a phone call at Tolbert's house which prompted the two men to drive past Godlove's home "to see if the girl was dead". Because numerous police officers were at the Godlove home, Tolbert and Ronald Hall merely drove by and returned to Tolbert's home. Several days later, however, Tolbert asked defendant what had happened and was told that Ms. Howard had knocked on Godlove's door, the door was opened, and defendant followed Howard *488 and Bob Fierson into the home and saw Fierson attempt to hit Godlove with the gun. Howard was shot when the gun inadvertently discharged. Defendant and Fierson immediately ran out, leaving Howard lying on the floor. Fierson was one of the men who was with the group in the restaurant when Tolbert, Ronald Hall, Ms. Brewster and Bunny left.
Defendant's claim that the trial court erred in admitting into evidence photographs of the Godlove entry hall which depicted a bloodstained carpet is rejected. The admission of such photographs rests with the trial court's discretion. People v Eddington, 387 Mich 551; 198 NW2d 297 (1972). The court's decision will be upheld if the photographs were "substantially necessary or instructive to show material facts or conditions" and it does not appear that they were offered in an attempt to "excite passion or prejudice". People v Falkner, 389 Mich 682, 685; 209 NW2d 193 (1973). We find that no error occurred here. The photographs were probative of the question whether the "robbers" had actually entered the home, as was stated by Mr. Godlove. Because they depicted only a bloodstained carpet, we do not find an intent to prejudice the jury.
We also find unpersuasive defendant's argument that he was prejudiced when a woman began to cry in the courtroom. Although the woman was believed to be Ms. Howard's mother, we find no reversible error in the event. Defendant cites no authority in support of his claim and we have found nothing which requires reversal on this ground.
Defendant's challenge to Tolbert's testimony that he (Tolbert) and Ronald Hall drove by Godlove's house to see if Ms. Howard was dead is *489 premised on the hearsay rule. Defendant argues that Tolbert's testimony that Ronald Hall received a phone call after which Tolbert and Hall drove by Godlove's house "[t]o see what was said really happened * * * to see if the girl was dead", constitutes hearsay admitted to prove the truth of the matter asserted. This argument is unavailing. The testimony indicated only that someone called defendant's brother at Tolbert's house and told him that Shirley Howard had been killed during the robbery attempt at Godlove's house. This may have been hearsay, but its admission into evidence was harmless at best; Ms. Howard's death had already been established by other evidence.
The only potentially prejudicial inference flowing from the challenged testimony was that defendant had made the telephone call. We do not deem such an inference likely enough to require reversal. Nothing in the testimony made it more reasonable to infer that the caller was defendant instead of one of the other individuals involved.
Defendant also argues that Tolbert's testimony as to the restaurant meeting was inadmissible hearsay which was highly prejudicial to the defendant. The prosecutor argues that the statements were made in furtherance of a conspiracy and were thus admissible under MRE 801(d)(2)(E). We agree.
The cited court rule permits the admission into evidence of coconspirator's statements "during the course and in furtherance of the conspiracy on independent proof of the conspiracy". This exception to the hearsay rule was applied to cases in which no conspiracy had been charged, before the enactment of the Michigan Rules of Evidence, People v Stewart, 46 Mich App 282, 285; 207 NW2d 907 (1973), aff'd 397 Mich 1; 242 NW2d 760 *490 (1976), modified 400 Mich 540; 256 NW2d 31 (1977), People v Shepherd, 63 Mich App 316, 322; 234 NW2d 502 (1975), People v Adams, 48 Mich App 595, 599; 210 NW2d 888 (1973), and People v Woodfork, 47 Mich App 631, 633; 209 NW2d 829 (1973). We see no policy reason why it cannot continue to be applied in such cases.
Our review of the record discloses prima facie evidence of a conspiracy independent of the restaurant meeting testimony. Mr. Godlove's testimony established that two people attempted to rob him and that one was shot in the process. The acts of the then unknown robbers circumstantially established that they were engaged in a concert of action. Tolbert's testimony reiterating defendant's admitted participation in the robbery attempt establishes his connection to the conspiracy or concert of action. This was an essential element of the independent proofs. It was admissible under MRE 801(d)(2)(A), as a party admission which did not rise to the status of a confession. See, e.g., People v Porter, 269 Mich 284, 289-291; 257 NW 705 (1934). See, also, People v Moncure, 94 Mich App 252, 257-261; 288 NW2d 675 (1979).
Tolbert's testimony in this regard was admitted after he testified to the restaurant meeting. While some authority exists for the proposition that the independent proof of the conspiracy must be offered and admitted before the coconspirator's statements can be admitted, People v Scotts, 80 Mich App 1; 263 NW2d 272 (1977), we adhere to the rule that "[t]he order of presentation of the proofs was unimportant, as it is clear that [the] trial court may vary the order of proofs and admit the coconspirator's statements contingent upon later production of the independent evidence required under MRE 801(d)(2)(E). See MRE 104(b)." *491 People v Losey, 98 Mich App 189; 296 NW2d 601 (1980). In the case at bar, the sum of the proofs established an independent basis for the conspiracy. Tolbert's testimony as to the restaurant meeting was, therefore, properly admitted into evidence.
Following Tolbert's testimony at trial, Police Officer Smith, who interviewed Tolbert and took his statement, was examined. Defendant now claims that Officer Smith's testimony concerning what Tolbert told him was highly prejudicial hearsay testimony. This issue was preserved below by defense counsel's objection.
The officer's testimony established that, although not included in the written statement signed by Tolbert, he (Tolbert) did tell the officer about the restaurant meeting. Defendant cites no authority in support of his argument on appeal; the prosecutor argues that the challenged testimony falls within the MRE 803(3) "state of mind" exception to the hearsay rule.
MRE 803(3) is inapplicable here because it relates only to the "declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health)". Officer Smith's testimony concerned only whether Tolbert told Smith about the restaurant meeting at the time the signed statement was made. A careful analysis of the officer's testimony reveals that it was admitted either to bolster the credibility or weight of Tolbert's testimony or to rebut perceived charges of recent fabrication in response to influence being brought to bear on Tolbert.
Tolbert communicated his story to the police when he was arrested on a capias warrant on or about August 1, 1979. Tolbert testified at trial that *492 he believed defendant's brother and some other people called the police and told them where to find Tolbert, who was hiding because he knew an outstanding warrant existed. After his arrest, he told the police that he knew who had killed Ms. Howard, in an effort to "do" to Ms. Howard's accomplices what they had done to him. Tolbert also testified that he had been in an altercation with defendant because Tolbert sold some "dummy" dope which he told the buyer came from defendant. Thereafter, approximately five days before Tolbert's arrest, defendant and five friends, all but one of whom were armed, beat Tolbert. Finally, Tolbert testified that he discussed the attempted robbery during which Ms. Howard was killed with the police in an attempt to get a good deal with regard to the capias warrant.
Tolbert's testimony as to the restaurant meeting was attacked by defense counsel because Tolbert's signed statement contained no mention of the subject. The officer was asked whether Tolbert had mentioned the meeting in an apparent effort to convince the jury that Tolbert had not fabricated the testimony after his first conversation with the police on August 1, 1979. Thus, the prosecutor sought to introduce evidence of a prior consistent statement to rehabilitate Tolbert's credibility by countering the effect of the signed (prior inconsistent) statement containing no mention of the restaurant meeting.
In Brown v Pointer, 390 Mich 346; 212 NW2d 201 (1973), a defendant's testimony was impeached by the introduction of a written affidavit. Following the defendant's further testimony that the statements in the affidavit were untrue, another witness testified that defendant had made a prior statement consistent with his trial testimony. On *493 appeal, the Michigan Supreme Court noted that, although consistent statements of a witness are generally not admissible as substantive evidence, they are allowed for the limited purpose of rebutting charges of recent fabrication.
"It has been said, however, that they are often `allowed a limited admissibility for the purpose of supporting the credibility of a witness, particularly to show that a witness whose testimony has allegedly been influenced told the same story before the influence was brought to bear.' McCormick, Evidence (2d ed), § 251, p 604. The authors of this recent revision of McCormick assert that the trend of decision supports the admission of consistent statements; they reason that "[t]he witness can be cross-examined fully. No abuse of prepared statements is evident. The attack upon the witness has opened the door.' McCormick, Evidence, op cit." 390 Mich 346, 351-352.
In Brown, the Supreme Court upheld the lower court's ruling admitting evidence of the prior consistent statement. Our review of the record in the instant case leads us to a similar conclusion. When Tolbert first spoke to Officer Smith, he allegedly told Smith about the restaurant meeting. Because that meeting was not noted in the signed statement memorializing Tolbert's interview with Smith, Tolbert's credibility was attacked by the implication that he had fabricated that portion of his testimony after his first meeting with Smith, in an attempt to secure a better deal with regard to the capias warrant. Under these circumstances, Smith's testimony was admissible, not as substantive evidence, but for the limited purpose of rehabilitating Tolbert's credibility after the defense charge of recent fabrication.
The final issue requiring discussion is defendant's remand request. The evidentiary hearing *494 requested by defendant is argued to be necessary to determine whether defendant's trial counsel should have insured the appearance at trial of the individuals allegedly present in the restaurant when the robbery was planned. Defendant alleges that he was not there. Tolbert testified that he was. Defendant stated at trial that he did not participate in the attempted robbery or talk with Tolbert about it after the fact. No one was able to identify defendant as being at Godlove's house. It thus appears that the production of the requested witnesses could have materially aided the jury in resolving the question of defendant's guilt.
Under People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973), we remand for the hearing requested by defendant. Implicit in this conclusion is our finding that the issue was not waived by defendant's failure to seek such a hearing before appeal. Because the issue questions the effective assistance of trial counsel, it would not be fair to require trial counsel to have sought such a hearing regardless of whether the judge would have granted it. Further, GCR 1963, 817.6(1) mandates that a motion to remand be granted if it "identifies an issue sought to be reviewed on appeal, and shows that a testimonial record must be developed to support the issue or that the issue should be initially decided by the trial judge". While the mandatory nature of the rule is inapplicable here for failure to file the motion within the time provided, this Court has the discretion to grant a motion to remand which is filed later in the appellate process. People v McCall, 403 Mich 858 (1978).
On remand, the trial court is to conduct an evidentiary hearing and make findings on the question whether trial counsel's failure to call as witnesses some or all of the individuals allegedly present at the restaurant while the robbery was *495 being planned deprived the defendant of the effective assistance of counsel and significantly affected the outcome of the trial.
Defendant's remaining allegation of error does not require discussion.
Remanded for proceedings consistent with this opinion. We retain jurisdiction.
D.C. RILEY, P.J., concurred.
V.J. BRENNAN, J. (concurring in part and dissenting in part).
I concur with the majority opinion on the disposition of the six issues defendant raised on appeal. I must dissent, however, from the majority's disposition of the motion for remand.
GCR 1963, 817.1 requires that a movant on a motion for remand submit affidavits in support of his allegations of fact. The defendant, in his motion for remand, makes vague statements that witnesses not presented at trial because of the ineffective assistance of trial counsel would have changed the verdict as rendered by the jury. This Court has held in People v Serr, 73 Mich App 19, 26; 250 NW2d 535 (1976), that a defendant is not entitled to an evidentiary hearing where no affidavits setting forth specific allegations have been filed. Under GCR 1963, 817.1, defendant should have attached affidavits from the uncalled witnesses as to their testimony or the trial counsel as to factual circumstances asserted by defendant.
Since compliance with GCR 1963, 817.1 may have obviated the need to return this cause to the trial court for an evidentiary hearing as to the existence of uncalled witnesses, I do not feel People v Ginther, 390 Mich 436; 212 NW2d 922 (1973), applies. The defendant in Ginther appears to have *496 complied with any pertinent court rules when seeking his remand and his allegations had been previously presented to the trial court.
When defendant's appellate counsel was appointed, he was not precluded from bringing a motion to remand, accompanied by the necessary affidavits, to move to set aside the guilty plea in the lower court. Serr, supra, 25, notes that there is no time limitation on defendant's filing to set aside a guilty plea. The absence of affidavits usually raises the presumption that he was not able to obtain them.
