People v. Harrington

• Decision Date: 07 June 1977
• Docket Number: Docket No. 27335
• Citation: 256 N.W.2d 52,76 Mich.App. 118
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory J. HARRINGTON, Defendant-Appellant. 76 Mich.App. 118, 256 N.W.2d 52
• Court: Court of Appeal of Michigan — District of US

Page 52

256 N.W.2d 52

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory J. HARRINGTON, Defendant-Appellant.

Docket No. 27335.

76 Mich.App. 118, 256 N.W.2d 52

Court of Appeals of Michigan.

June 7, 1977.

Released for Publication July 25, 1977.

[76 MICHAPP 119] Stiles, Fowler & Dudley by Larry D. Fowler, Lansing, for defendant-appellant.

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

Before DANHOF, P. J., and R. B. BURNS and EDWARD A. QUINNELL, ^* JJ.

R. B. BURNS, Judge.

Defendant appeals his jury conviction of delivery of marijuana contrary to M.C.L.A. § 335.341(1)(c); M.S.A. § 18.1070(41)(1)(c).

Defendant first argues that the trial court erred in denying his motion to quash the information. M.C.L.A. § 767.42(1); M.S.A. § 28-982 provides in part:

"An information shall not be filed against any person [76 MICHAPP 120] for a felony until such person has had a preliminary examination therefor".

The information charged defendant with being a second offender under M.C.L.A. § 335.348; M.S.A. § 18.1070(48), which provides in part:

"Any person convicted of a second or subsequent offense under this act may be imprisoned for a term up to twice the term otherwise authorized or fined an amount up to twice that otherwise authorized, or both."

Defendant contends he was entitled to a preliminary examination as to his second offender status.

In People v. McFadden, 73 Mich.App. 232, 251 N.W.2d 297 (1977), we deduced from the absence of a procedural framework in M.C.L.A. § 335.348; M.S.A. § 18.1070(48) a legislative intent not to provide an adversary hearing regarding the prior offense, and observed that the second offender status could be challenged at sentencing. The statute is therefore analogous to the habitual offender act, M.C.L.A. § 769.10 et seq.; M.S.A. § 28.1082 et seq., in that it does not create a separate crime, but merely creates a factor which augments the sentence of a crime. See, e. g., People v. Hendrick, 398 Mich. 410, 416-417, 247 N.W.2d 840, 842 (1976). Since the statute does not create a crime, there is no right to a preliminary examination thereon. M.C.L.A. § 767.42(1); M.S.A. § 28.982; see People v. Judge of Recorder's Court, 251 Mich. 626, 627, 232 N.W. 402, 403 (1930). It was therefore not error for the trial court to deny defendant's motion to quash.

A police informant testified that defendant sold him marijuana. The sale was overheard and verified by a police officer. Defendant denied the sale, and by way of explanation stated on direct examination that he knew the informant had previously [76 MICHAPP 121] been arrested, and therefore avoided him because he, defendant, was on parole. On cross-examination, the prosecutor elicited the terms of defendant's parole. It is reversible error to cross-examine a defendant as to the details of his prior prison sentence to test credibility. People v. Rappuhn, 390 Mich. 266, 273-274, 212 N.W.2d 205, 209, 67 A.L.R.3d 766, 772 (1973). We must reverse.

We address one other issue which may recur on retrial. On cross-examination of the informant, defendant sought to elicit the circumstances surrounding prior arrests of the informant which did not result in convictions, apparently to establish that the informant had made a deal with the police, might still be subject to prosecution, and hence had an interest in the outcome of the case. Arrests not resulting in convictions are not admissible to impeach. People v. Falkner, 389 Mich. 682, 695, 209 N.W.2d 193, 199 (1973). However, a witness may be cross-examined as to any interest he might have in the outcome of the trial, which might encompass questions as to arrests not resulting in convictions. People v. Sesson, 45 Mich.App. 288, 298-302, 206 N.W.2d 495, 501-502 (1973); see People v. Crutchfield, 62 Mich.App. 149, 233 N.W.2d 507 (1975).

The remaining issues raised by defendant are moot.

Reversed and remanded.

DANHOF, Chief Judge, dissenting.

I respectfully dissent.

Defendant offered the terms of his parole on direct examination as an explanation of why he would not have associated with the police informant. Defendant did so to bolster his claim that he had not sold anything to the informant.

[76 MICHAPP 122] Under these circumstances, I do not believe that People v. Rappuhn, 390 Mich. 266, 273-274, 212 N.W.2d 205, 209; 67 A.L.R.3d 766, 772 (1973), is properly applicable to this case. In Rappuhn the Court said, "We therefore hold that it is error to cross-examine defendant as to the duration and details of his prior prison sentences to test his credibility." Id. at 273-274, 212 N.W.2d at 209 (Emphasis added.) The Court noted that "defendant did not make any statement as to the length of sentence resulting from his prior convictions to which he did testify." Id. at 271, 212 N.W.2d at 207.

Here the prosecutor's questions concerning the conditions of defendant's parole, which included a requirement that he refrain from associating with known criminals, were not irrelevant, as in Rappuhn. Defendant had put in issue the question of whether the condition of his parole that he not associate with known criminals had affected his conduct, and in my opinion the prosecutor committed no error in cross-examining defendant on that point.

In People v. Drew, 67 Mich.App. 295,...