People v. Glover

• Citation: 47 Mich.App. 454,209 N.W.2d 533
• Decision Date: 24 May 1973
• Docket Number: Docket No. 14410,No. 3,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John GLOVER, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 533

209 N.W.2d 533

47 Mich.App. 454

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

Docket No. 14410.

Court of Appeals of Michigan, Division No. 3.

May 24, 1973.

Released for Publication Aug. 6, 1973.

Fredric F. Balgooyen, Muskegon Heights, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Richard J. Pasarela, Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and T. M. BURNS and CHURCHILL, ^* JJ.

T. M. BURNS, Judge.

On the evening of December 7, 1971, an armed masked gunman robbed a grocery store in Muskegon Heights, Michigan. The defendant, another adult, and a sixteen-year-old juvenile were arrested for the crime. In a jury trial held on February 29, 1972, defendant was convicted of armed robbery. M.C.L.A. § 750.529; M.S.A. § 28.797. He was sentenced to a term of from 7 to 15 years imprisonment and appeals as of right. Defendant raises two issues which will be discussed and decided in the manner presented below.

I

The prosecution's chief witness at trial was the sixteen-year-old juvenile. He testified that he had perpetrated the robbery, he and the defendant had planned and discussed the crime, the defendant selected the business establishment to be robbed, the defendant gave him a gun to use while en route to the robbery, and that he and the defendant split the proceeds of the robbery.

On cross-examination the witness stated that he had not been offered any leniency, immunity, or favorable treatment in exchange for the testimony against the defendant. Defense counsel then asked the juvenile if he had been convicted of any prior armed robberies. The witness replied in the affirmative. However at this point the trial court interrupted and instructed the jury to strike the question and answer from their minds and not to consider it in their deliberations. Defense counsel continued the questioning and asked the juvenile if he had been charged with the present robbery. The assistant prosecutor objected. The trial court excused the jury, declared a fifteen-minute recess, and directed defense counsel and the prosecutor to research the question of whether or not a juvenile record could be utilized to impeach the credibility of a witness. After the recess the trial court, defense counsel, and the prosecutor all relying on People v. Warren, 23 Mich.App. 20, 178 N.W.2d 127 (1970) and People v. Smallwood, 306 Mich. 49, 10 N.W.2d 303 (1943), agreed that the use of juvenile records for impeachment purposes was not permissible. Upon resumption of the trial, the court instructed the jury not to consider any of the testimony having to do with the youthful witness's difficulties in juvenile court.

Although there was no objection, defendant asserts that the trial court reversibly erred by ruling that a witness could not be impeached via a juvenile record. Inasmuch as defense counsel failed to object, our review is limited to ascertaining whether or not a miscarriage of justice resulted. People v. Mitten, 44 Mich.App. 64, 205 N.W.2d 47 (1972).

Testimony bearing upon a witness's credibility is essential to the trier of fact in ascertaining the truthfulness of the witness and consequently becomes indispensable for a fair trial. As we observed in People v. Downs, 45 Mich.App. 130, 131--132, 206 N.W.2d 241 (1973):

'The axiom 'What you are speaks louder than what you say', embodies a folk wisdom more venerable than our historically recent common law of evidence. So, Socrates observed that 'a man is as his deeds'. Accordingly, by this commonsense bit of common law, we recognize the peril of accepting without scrutiny the portrait of the witness, drawn in the most favorable image by the art of sponsoring counsel and the witness's own self-esteem. The genuineness of the image, or at least its completeness, must be challenged. The trier of fact should be made to know the capacity of the witness to make an observation, to remember a past event accurately, to be fair, and to be truthful. Bearing on the latter, it has been thought that the character of the witness as evidenced by his respect for law and the rights of others was a relevant area for cross-examination.'

In the case at bar the witness sought to be impeached was the prosecutor's key witness without whose testimony the defendant could not have been convicted. The record reflects that this witness had a juvenile record. The law at the time of defendant's trial clearly permitted the use of a juvenile record for the impeachment of a witness who, as here, was not himself a defendant. People v. Davies, 34 Mich.App. 19, 190 N.W.2d 694 (1971); People v. Basemore, 36 Mich.App. 256, 193 N.W.2d 335 (1971). Davies and Basemore were printed in the advance sheets approximately three months and two weeks respectively before the start of defendant's trial. These cases represented a shift in the law, and we do not deem either the prosecutor or the defense counsel negligent in failing to discover them within the fifteen minutes allocated to research the impeachment question. However, the...