Johnson v. Corbet

Decision Date13 November 1985
Docket NumberNo. 72360,72360
Citation377 N.W.2d 713,423 Mich. 304
PartiesAndrew JOHNSON, Plaintiff-Appellant, v. Pat CORBET and William Eugene Emery, d/b/a Bella Vista Bar, Defendants, and Jack Peterson d/b/a Buckhorn Bar and Swede's Bar, Defendant-Appellee. 423 Mich. 304, 377 N.W.2d 713
CourtMichigan Supreme Court

Tercha & Daavettila by Robert T. Daavettila, Houghton, for plaintiff-appellant.

Peacock, Ingleson, Vinocur & Brewster, P.C. by John D. Peacock, Sault Ste. Marie, for defendant-appellee.

RYAN, Justice.

We granted leave to appeal in this case, and in Moody v. Pulte Homes, Inc., 423 Mich. 150, 378 N.W.2d 319 (1985), decided today, primarily in order to reconsider the rule announced in Javis v. Ypsilanti Bd. of Ed., 393 Mich. 689, 702-703, 227 N.W.2d 543 (1975), which states:

"Where there is an omission of, or deviation from an applicable and accurate SJI [Standard Jury Instruction], prejudicial error will be presumed; provided that the erroneously omitted SJI was properly requested at trial; and, provided that in those cases where error is charged as a result of a deviation from a SJI, said deviation was brought to the attention of the trial court prior to the commencement of jury deliberations."

Although four issues are presented for decision, all are ultimately concerned with the question whether we should continue to adhere to the requirement of Javis that a trial court's failure to give an accurate, applicable, and properly requested SJI will result in automatic reversal without regard to any prejudice to the complaining party.

We conclude that in light of the standard of review we adopt today for review of instructional errors arising from failure to utilize or departure from the language of the SJI, the decision of the Court of Appeals in this case must be reversed.

This case arose out of the October 5, 1980, beating of plaintiff Andrew Johnson by defendant Patrick Corbet on a sidewalk in L'Anse, Michigan. Plaintiff's claim against Corbet is based on assault and battery, while his claim against the other defendants is based on the Dram Shop Act. M.C.L. Sec. 436.22(5); M.S.A. Sec. 18.993(5). Defendant William E. Emery, doing business as Bella Vista Bar, is not a party to this appeal because the jury returned a verdict of no cause of action in his favor. Plaintiff obtained a $200,000 verdict against defendants Corbet and Jack Peterson, doing business as Buckhorn Bar and Swede's Bar. Peterson's motion for a new trial or, in the alternative, for remittitur was denied. The Court of Appeals reversed. 1

At trial, plaintiff called Corbet as an opposite party witness. See MRE 607(2)B and M.C.L. Sec. 600.2161; M.S.A. Sec. 27A.2161. Although named a defendant in the suit, a default had been entered against Corbet prior to the commencement of trial. A default judgment, however, had not been entered against him. In response to questions put to him by defendant's counsel, Corbet testified that he had once been convicted of burglary in Chicago. The date of the conviction was never specified. When the examination of Corbet was concluded, Warren Selden, who was Corbet's drinking companion on the day in question, was called as a witness for plaintiff and, upon cross-examination by counsel for Peterson, stated that he had been convicted of "larceny from a building" in 1978 and "bad checks" in 1967. No objection was registered to the evidence of the prior convictions of either witness.

At the close of all the evidence, the trial court excused the jury and discussed with counsel their requests for instructions to the jury. 2 At the outset, the court stated:

"The Court: You aren't going to be able to decide this afternoon those [instructions] that you'd like to have given and those that you would not like to have given. I'm going to tell you the ones that I'm going to give and then you can reserve your objections to them until after I've given them and we can go from there. There are some other matters that pertain to your instructions that are much more important that I think we'd better get to before we lose any more time.

"As to all of your requests--let me just refer to my notes. I will give pretty generally all of your requests that are the standard jury instructions. Those that I do not feel that are applicable or are repetitious and otherwise, I will indicate those I will not give". (Emphasis added.)

Defendants Peterson and Emery had previously filed written requests for instructions to the jury. Peterson's requests did not include SJI2d 5.03. Emery's did.

SJI2d 5.03, states:

"Impeachment by Proof of Conviction of Crime

"In deciding whether you should believe a witness you may take into account the fact that [he/or/she ] has been convicted of a crime and give that fact such weight as you believe it deserves under the circumstances."

After a brief discussion with counsel concerning their requests for instructions, the following occurred:

"[Counsel for Defendant Peterson]: Your Honor, I'd like to add one more. I'd like to ask that Standard Jury Instruction 5.03 on impeachment by proof of conviction of crime be given.

"The Court: That'll be denied. That takes care of that.

"[Counsel for Defendant Peterson]: All right.

"The Court: You can take your objection to it. [Defendant] Emery's requests, I think you've requested 4.06 too, Mr. Hood. That will not be given. Conviction of a crime, 5.03 will not be given."

After the court instructed the jury, Peterson's counsel objected to the court's refusal to give SJI2d 5.03. The trial court noted the objection and stated, once again, that the instruction would not be given.

The Court of Appeals reversed because the trial judge failed to include in his jury instructions SJI2d 5.03 as requested by Peterson in his proposed instructions to the jury. 127 Mich.App. 804, 339 N.W.2d 648 (1983). In reversing, the Court of Appeals held that since SJI2d 5.03 was accurate, applicable, and had been requested by Peterson, the trial court was duty bound to give it, and its failure to do so was error requiring reversal as a matter of law, citing Javis, supra. We granted plaintiff's application for leave to appeal, and ordered that this case be argued and submitted together with Moody, supra. 419 Mich. 869 (1984).

Plaintiff now brings several assignments of error which amount essentially to four claims:

I. Since it was not shown that Corbet's prior conviction for burglary occurred within ten years of the time of trial, as required by MRE 609, evidence of the prior conviction was not admissible and thus no instructions need have been given concerning it.

II. SJI2d 5.03 was not properly requested by defendant Peterson because his request was not made timely, according to the trial court's pretrial order.

III. The issue of the trial court's failure to give SJI2d 5.03 was not preserved for appellate review because it was not raised in a motion for a new trial.

IV. The presumption of prejudicial error rule announced by this Court in Javis should not be deemed to be conclusive.

I

Plaintiff asserts that because there was no showing that Corbet's burglary conviction was obtained, or that he was released from confinement for the conviction within ten years of the trial in this case, required conditions of admissibility of such evidence under MRE 609(b), 3 no "adequate evidentiary foundation" was established for admission of the prior conviction. Therefore, "SJI2d 5.03 was simply not applicable," and the trial court did not err in refusing to give it. Plaintiff adds:

"Since Defendant-Appellee Peterson failed to produce the foundation required by MRE 609 to support SJI2d Sec. 5.03, he should not complain on appeal that the Standard Jury Instruction was not given."

Defendant responds that the plaintiff "is confusing the Rules of Evidence with the Standard Jury Instructions," and "cannot now rely upon a rule of evidence to keep out evidence that he gratuitously introduced himself by putting the Defendant Corbet on the stand for cross-examination, putting the witness Selden on the stand as one of the witnesses, and then introducing the deposition of the Defendant Corbet without qualification." We agree.

Proof of Corbet's prior conviction was elicited by Peterson on cross-examination. No objection was registered to the evidence by any party, and any deficiency in the foundational requirements for admissibility of the burglary conviction has been waived. Whether evidence of the conviction might have been excluded by the trial court as too remote had it been shown, for example, that the conviction was obtained more than ten years prior to the trial, is speculation at best. No such objection was made. Once the evidence was received, the jury was entitled, indeed required, to consider it. Since evidence of the burglary conviction was before the jury, SJI2d 5.03 was applicable, and the defendant is not foreclosed from complaining on appeal that the requested instruction was not given.

Plaintiff also contends that the instruction on prior convictions was inapplicable to Selden's testimony. The theory is that Selden's testimony was of no probative worth in the case because Selden testified that he was unable to remember the events of the day in question, or even whether he was with Corbet on that occasion because he was intoxicated, having consumed one-and-one-half to two cases of beer that day. Plaintiff argues:

"A close review of Selden's testimony reveals that he offered no relevant or material testimony. He gave no assistance to either Plaintiff or Defendant's position.

* * *

"Thus, Selden was really a 'non-witness' and the sole purpose in his being called to testify was to demonstrate to the jury that all possible known information was being presented for their consideration.

* * *

"However, since Selden's testimony contributed nothing to the case, his credibility was not at issue and therefore, SJI2d 5.03 was without significance or application...

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