People v. Hughes

• Decision Date: 05 November 1979
• Docket Number: Docket No. 78-1038
• Citation: 287 N.W.2d 226,93 Mich.App. 333
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Howard HUGHES, III, Defendant-Appellant. 93 Mich.App. 333, 287 N.W.2d 226
• Court: Court of Appeal of Michigan — District of US

Page 226

287 N.W.2d 226

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Howard HUGHES, III, Defendant-Appellant.

Docket No. 78-1038.

93 Mich.App. 333, 287 N.W.2d 226

Court of Appeals of Michigan.

Nov. 5, 1979.

Released for Publication Jan. 29, 1980.

[93 MICHAPP 335] Arthur J. Tarnow, Detroit, for defendant-appellant.

[93 MICHAPP 334] Frank J. Kelley, Atty. Gen., Robert A. [93 MICHAPP 335] Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., Elizabeth Osgood Pollard, Asst. Pros. Atty., for plaintiff-appellee.

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

HOLBROOK, Judge.

Defendant was convicted by jury on May 4, 1977, of felony murder, contrary to M.C.L. 750.316; M.S.A. 28.548, in connection with the fatal shooting of a police officer during the armed robbery of a branch of the National Bank of Ypsilanti on July 11, 1975. On June 7, 1977, he was sentenced to life imprisonment and now appeals of right.

Defendant's first trial ended in a mistrial in September 1976 when the jury was unable to reach a verdict. At the retrial police officer Claudius Wilcox testified that while pursuing the robbers' automobile as it fled the scene after the robbery he observed a portion of the driver's face, and identified defendant in court as the driver. Defendant was convicted of the crime charged and now presents five allegations of error, only two of which merit discussion.

Defendant first contends that the trial court erred reversibly by denying his pretrial motion to suppress evidence of his prior conviction of second-degree murder. In denying this motion the trial judge stated:

"As to the second request, the court suppress any [93 MICHAPP 336] testimony, if the defendant takes the stand as to his past record, of course this only applies, any reference on defendant's past criminal record could only be brought if the defendant testifies. If he testifies, the court in exercising discretion, would feel that it would be proper to cross-examine the defendant only as to his felony record which he either has been found guilty or pled guilty, not misdemeanors or anything of this nature. * * * The court feels that this would go to the credibility of the defendant if he testifies. In the same manner, defendant, as if he testifies, testimony as to his college education where or what he's been doing pursuant, those things that he's accomplished, this also being brought forth as to anything which would affect his credibility, may also be presented by counsel for defendant, if the defendant testifies. This would be pertinent to his credibility. So what counsel appears to be arguing that it would be proper to show that the defendant has done excellent work in school, and so forth, and that he's been without a blemish for many years, but then defendant seems to claim that at that point the testimony should stop and say everything that's good should be permitted to be offered as to his credibility, but nothing in any way affecting his credibility should be offered, and the court, in its discretion, feels that this case on the basis of what the court has heard and seen, the court feels that this would be proper for cross-examination as to this felony."

Plaintiff's brief states that in November, 1963 defendant was convicted of second-degree murder, was paroled on September 23, 1969, and was discharged from parole after 24 months.

The Michigan Supreme Court, on January 6, 1977, entered an order giving notice that it was considering the adoption of proposed Michigan Rules of Evidence. 399 Mich. 951. These rules were adopted by order of the Court on January 5, 1978, to be effective on March 1, 1978. 402 Mich. lxxxviii. MRE 609(b) provides:

[93 MICHAPP 337] "(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction Or of the release of the witness from the confinement imposed for that conviction, whichever is the later date." (Emphasis added).

Defendant's trial in the case at bar took place during April and May, 1977. The time interval between this trial and defendant's release from the confinement imposed pursuant to his earlier conviction is well within the ten-year limit imposed by MRE 609(b). Therefore, the Michigan Rules of Evidence, even if applicable to the instant case, would not have prohibited the use of evidence of defendant's prior conviction for impeachment purposes.

There is no question that the trial judge recognized his discretion to forbid impeachment of defendant by use of evidence of his prior conviction. People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974). Although evidence of similar prior convictions should be admitted with great care, People v. Baldwin, 405 Mich. 550, 275 N.W.2d 253 (1979); People v. Green, 86 Mich.App. 142, 272 N.W.2d 216 (1978), similarity does not per se bar every impeachment by evidence of a prior similar conviction, People v. Cash, 80 Mich.App. 623, 264 N.W.2d 78 (1978); People v. Townsend, 60 Mich.App. 204, 230 N.W.2d 378 (1975). Furthermore, a prior conviction need not be specifically in the area of dishonesty, as fraud or embezzlement, for evidence of it to be admissible for impeachment. People v. Cash, supra, People v. Payne, 27 Mich.App. 133, 183 N.W.2d 371 (1970).

In the case at bar the trial judge carefully balanced the negative effect of impeachment against the positive aspects of defendant's anticipated[93 MICHAPP 338] testimony regarding his educational and other accomplishments subsequent to his prior conviction and decided that impeachment would be allowed. There was no abuse of discretion. Furthermore, although defendant did not testify at trial, his alibi defense was developed through the testimony of three defense witnesses who described his whereabouts at various times during the day of the crime. Defendant's first contention of error is unmeritorious.

Defendant next argues that he was denied equal protection of the law because the trial court refused defense counsel's request for a complete typed transcript of his first trial.

On January 17, 1977, Richard Zipser, defendant's retained counsel who had conducted his first trial, moved to withdraw from the case. Counsel stated in his motion to withdraw that he was willing to assist in the case by going over all issues and evidence with any new defense counsel. The trial judge on January 26, 1977, issued an order granting the motion to withdraw, and on February 2, 1977, two new counsel were appointed to represent defendant.

Defendant's appointed counsel filed a written motion on March 15, 1977, requesting the complete transcript of the first trial. This motion was heard on April 1, 1977, at which time one of defendant's attorneys stated that he had received from Mr. Zipser a transcript of the testimony of witnesses Dudley Paschall and police officer Claudius Wilcox. Officer Wilcox was the sole prosecution eyewitness to identify defendant as an active participant in the robbery.

In denying the motion because of the physical impossibility of transcribing the entire first trial before the scheduled commencement of defendant's[93 MICHAPP 339] retrial, the trial judge offered to make his conference room available to defense counsel and furnish them with recording equipment and a tape recording of all testimony at the first trial. He stated that counsel could listen to the tape as much as they wished, could make notes, and could then ask the reporter to transcribe any excerpts needed for impeachment purposes at defendant's forthcoming trial. One of defendant's attorneys suggested that he review the witness list with his co-counsel and Mr. Zipser, determine which witnesses they wanted to hear, and then have the court reporter transcribe limited portions of the testimony if necessary. The trial court agreed, although the record does not reveal that defense counsel ever followed this procedure.

On April 11, 1977, the first day of defendant's retrial, defense counsel again requested a complete transcript of the original trial and asked for a continuance until the transcript could be furnished. Counsel conceded that he had conferred with Mr. Zipser and had received "rough notes" from him. The trial judge denied these requests and stated:

"I would like to emphasize because sometimes appellate courts have a tendency sometimes to not quite understand because probably we don't make it clear, the trial courts don't make it clear their reasons for our rulings. The matter of transcript was brought before the court officially on April 1st, 1977. I believe it was praeciped on from the week before, it was put over at request of counsel for defendant to April 1st, 1977. Trial was set or has been set for sometime for today. This was a situation to face the court where the defendant had been in jail...