People v. Draine

• Decision Date: 02 December 1976
• Docket Number: Docket No. 21525
• Citation: 72 Mich.App. 592,250 N.W.2d 139
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Westley DRAINE, Defendant-Appellant. 72 Mich.App. 592, 250 N.W.2d 139
• Court: Court of Appeal of Michigan — District of US

Page 139

250 N.W.2d 139

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Westley DRAINE, Defendant-Appellant.

Docket No. 21525.

72 Mich.App. 592, 250 N.W.2d 139

Court of Appeals of Michigan.

Dec. 2, 1976.

Rehearing Denied Jan. 31, 1977.

Released for Publication Feb. 15, 1977.

[72 MICHAPP 592] James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. [72 MICHAPP 593] Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief Asst. Pros. Atty., Ronald P. Weitzman, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and BRONSON and BASHARA, JJ.

PER CURIAM.

Defendant appeals from a jury conviction and sentence for second-degree murder. M.C.L.A. § 750.317; M.S.A. § 28.549. We reverse.

Defendant's trial was held on July 5, 1974. On that date, prior to the selection of a jury, defense counsel motioned the trial court to exclude all inquiry into the defendant's prior convictions, all of which were for misdemeanor and city ordinance violations, should the defendant elect to testify. The court ruled that two of the convictions for ordinance violations could be used by the prosecutor for impeachment purposes. Defendant did not testify at his trial, which was concluded the same day.

On appeal, defendant cites People v. Renno, 392 Mich. 45, 219 N.W.2d 422 (1974), and asserts that the rule enunciated in that case concerning impeachment with city ordinance and misdemeanor convictions was precedent binding on the trial court at the time of defendant's trial and rendered the trial court ruling permitting such impeachment reversibly erroneous.

There can be little argument on the latter assertion, assuming the validity of the former. In Renno, supra, p. 55, 219 N.W.2d p. 425, the Supreme Court held:

[72 MICHAPP 594] 'We do not hesitate in this case to prohibit the further use of municipal ordinance or misdemeanor convictions used by the prosecution Solely for impeachment purposes.' (Emphasis in the original.)

If Renno governed the trial court ruling, then the ruling was clearly erroneous. And since defendant did not testify at his trial, and had no prior felony convictions, we could only presume that his failure to testify was at least in part based on the trial court's decision to permit impeachment with ordinance and misdemeanor convictions. We could not find the error to have been harmless.

The arguments on appeal have been directed to the issue of whether Renno constituted binding precedent at the time of the trial court ruling. Only after careful consideration, and with great reluctance, do we conclude that it did.

The trial court ruling in question occurred on July 5, 1974. Defendant's attorney, immediately prior to defendant's trial, made an oral motion to exclude any reference at trial to defendant's criminal record. Although several cases were cited in support of the motion, neither defense counsel, the prosecutor, nor the trial judge appears to have been aware of the Renno decision, which would have been dispositive of the motion.

This unanimous ignorance of Renno is not surprising, since the opinion was not yet generally available for guidance. In the bound volume No. 392 of the Michigan Reports, p., 49, 219 N.W.2d 422, it is said that the case was 'Decided June 25, 1974'. As we understand it, this represents the date on which a copy of the signed slip opinion was filed and available in the Clerk's office of the Supreme Court. Dissemination of the slip opinion occurred slightly later, but the circulation was limited and did not [72 MICHAPP 595] include the state's trial judges. ¹ General circulation would not have occurred until publication of the next issue of the advance sheets of Michigan Reports, published monthly during the Supreme Court's term. Although the date of Renno's publication in the advance sheets was not carried forward in the permanent bound volume, our research discloses a publication date of July 30, 1974.

For all practical purposes, Renno was not available to provide guidance for the trial court's ruling on July 5, 1974.

Despite this, defendant insists adamantly that Renno was Supreme Court precedent, binding on the trial judge, on that date. Defendant refers us to a subsequent Supreme Court opinion in People v. Sanders, 394 Mich. 439, 231 N.W.2d 639 (1975), where the retroactive application of Renno was discussed. The Court set guidelines for such retroactive application, and then stated:

'Otherwise, Renno will be applied to those cross-examinations occurring after the decisional date of Renno, supra.' Sanders, supra, pp. 441--442, 231 N.W.2d p. 640.

Bound as we are by the Supreme Court's interpretations of their own cases, our problem is narrowed to interpreting when the 'decisional date' of Renno was. We see no alternative to holding that the decisional date was the date stamped on the slip opinion, when the opinion was filed in the [72 MICHAPP 596] Clerk's office, and which was carried forward into the permanent copy of Michigan Reports as the date on which the case was decided. The decisional date of Renno was June 25, 1974, and defendant's conviction must be reversed.

We must reject plaintiff's argument based on GCR 1963, 866, to the effect that a Supreme Court decision is not effective as binding precedent until 20 days after the opinion is filed with the office of the Clerk of the Supreme Court. That court rule provides in its entirety as follows:

'An order or judgment pursuant to any decision of the Supreme Court shall be entered by the clerk under the direction of the court. Final process to which any party may be entitled upon a judgment or order of the Supreme Court shall be issued by the clerk not less than twenty nor more than thirty days from the time of the entry of such judgment or order unless otherwise ordered by the court or unless application for rehearing timely filed is pending.'

We agree with plaintiff that a rule delaying the effective date of Supreme Court decisions for 20 days would have the beneficial effect of making it more likely, though not at all certain, that the decisions would be available by their effective date. Rule 866, however, speaks only of issuing final process to the parties to an appeal and is apparently designed only to facilitate the handling of motions for rehearing, which must also be filed within 20 days. See GCR 1963, 864.4. The rule says nothing about when a rule of law enunciated in a Supreme Court opinion is effective as...