People v. Atkins

• Decision Date: 22 September 1982
• Docket Number: Docket No. 55257
• Citation: 117 Mich.App. 430,324 N.W.2d 38
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Earnest ATKINS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 38

324 N.W.2d 38

117 Mich.App. 430

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Earnest ATKINS, Defendant-Appellant.

Docket No. 55257.

Court of Appeals of Michigan.

Submitted April 6, 1982.

Decided June 23, 1982.

Released for Publication Sept. 22, 1982.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William F. Delhey, Pros. Atty., and David A. King, Asst. Pros. Atty., for the People.

Edward J. Schwartz, Ann Arbor, for defendant-appellant.

Before CAVANAGH, P.J., and MAHER and GLASER ^*, JJ.

PER CURIAM.

Defendant was convicted by a jury of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, in connection with the stabbing death of his wife. This appeal is by right.

Defendant's first argument on appeal is that the trial court erred in denying defendant's motion for a directed verdict of acquittal on the charge of first-degree murder. In ruling on a motion for a directed verdict of acquittal, the trial court must consider the evidence presented by the prosecution up to the time the motion is made, view that evidence in a light most favorable to the prosecution, and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 285 N.W.2d 284 (1979), People v. Anglin, 111 Mich.App. 268, 284, 314 N.W.2d 581 (1981).

Defendant's stormy relationship with his wife, his threats to get revenge against her (which were made less than 48 hours before she was killed), and the brutality of the killing, when viewed in a light most favorable to the prosecution, constituted sufficient evidence to establish premeditation, deliberation, and an intent to kill. We find the trial court did not err in denying defendant's motion for a directed verdict.

Defendant claims that he was denied a fair trial because of improper comments made by the prosecutor during closing argument. Defendant alleges that the prosecutor referred to facts outside the record and went beyond the issues addressed at trial. However, no objection to the allegedly improper remarks was made.

Absent manifest injustice, appellate review is precluded when defendant fails to object to the prosecutor's closing argument. People v. Stewart, 107 Mich.App. 458, 461, 309 N.W.2d 564 (1981). We find no such manifest injustice. The trial court properly instructed the jury that the arguments of counsel did not not constitute evidence.

Defendant's next argument is that the trial court erred in allowing the prosecutor to cross-examine defendant about a misdemeanor conviction that occurred more than 10 years prior to trial. The prosecutor attempted to impeach defendant's credibility by means of a 1968 conviction for assault and battery. No objection was raised to this line of questioning and so, again, we review only to determine whether manifest injustice resulted.

It is clear that defendant's 1968 assault and battery conviction was inadmissible under MRE 609 because it did not involve a crime of theft, dishonesty or false statement and because it was more than 10 years old. However, in People v. Williams, 93 Mich.App. 236, 287 N.W.2d 184 (1978), this Court held that a misdemeanor conviction which was otherwise inadmissible for impeachment purposes could be introduced to negate a defendant's false testimony that he had never been convicted of a crime. The Court stated:

"[W]hen a defendant seeks to controvert the truth-seeking functions of a criminal trial, the introduction of otherwise inadmissible evidence is permissible to contradict his false testimony. Accordingly, we hold that since the introduction of the prior misdemeanor conviction in the present case was not used to show the defendant's bad character, but was rather used specifically to negate his fraudulent testimony, and the jury was so instructed, its introduction was not reversible error." 93 Mich.App. 236, 242, 287 N.W.2d 184.

Thus, when defendant offers false testimony, the prosecutor is allowed to show that defendant misrepresented his record in an attempt to mislead the jury. Defendant's testimony opens the door to rebuttal testimony for the purpose of demonstrating that defendant gave false testimony on direct examination. People v. Bouchee, 62 Mich.App. 132, 233 N.W.2d 503 (1975), rev'd on other grounds, 400 Mich. 253, 253 N.W.2d 626 (1977). That is exactly the situation here. On direct examination, the following exchange between defendant and defense counsel occurred:

"Q. Now Mr. Atkins, it's true that you've been in trouble with the law before, isn't that true?

"A. Correct.

"Q. And you have previous convictions?

"A. Yes, sir.

"Q. What were those?

"A. The use of a credit--illegal use of a credit card and forgery.

"Q. Have you ever been involved in any type of violent crime before?

"A. No, sir."

(Emphasis added.)

We find the trial court did not err in allowing the prosecutor to question defendant about his 1968 assault and battery conviction. The prosecutor's purpose was to negate defendant's representation that he had never been involved in a crime of violence. Because the conviction was admitted for the specific purpose of demonstrating that defendant had falsely testified on direct examination, and not for the broader purpose of impeaching defendant's general credibility, MRE 609 was not violated.

Lastly, defendant...