People v. Jackson
| Decision Date | 16 April 1974 |
| Docket Number | No. 9,9 |
| Citation | 391 Mich. 323,217 N.W.2d 22 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James JACKSON, Defendant-Appellant. 391 Mich. 323, 217 N.W.2d 22 |
| Court | Michigan Supreme Court |
William L. Cahalan, Pro. Atty., Dominick R. Carnovale, Chief Appellate Dept., Gerard A. Poehlman, Asst. Pros. Atty., Detroit, for plaintiff-appellee.
State Appellate Defender Office by David A. Goldstein, Asst. Defender, Detroit, for defendant-appellant; Francis L. Zebot, Asst. Defender, John Lydick and Steve Schwartz, Research Attys., Detroit, on brief.
Before the Entire Bench.
James Jackson was convicted following a bench trial of the charged offense, assault with intent to rob being armed. M.C.L.A. § 750.89; M.S.A. § 28.284.
Three hours after an attempted robbery of a bar Jackson was arrested when he sought to use a credit card stolen from a vending machine collector during the course of the attempt to rob the bar.
Jackson pled guilty to the offense of attempted unlawful possession of a credit card and was sentenced.
Jackson's bench trial on the assault with intent to rob charge commenced a month later before the same judge who had accepted his plea of guilty and sentenced him on the credit card charge.
The dominant issue at the trial was identification. Barmaid-proprietress Petrenas identified Jackson as the culprit. Five other res gestae witnesses, including the vending machine collector, were unable to make an identification. Petrenas had previously identified Jackson at two photographic showings and at a lineup. 1 These identification procedures occurred while Jackson was in jail on the credit card charge but before his 'arrest' on the assault with intent to rob charge. The police and prosecutor were unable to produce any records pertaining to the photographic and lineup identifications, and it is unclear whether Jackson was represented by counsel during these identification procedures.
The Court of Appeals rejected all assignments of error except those relating to the identification procedures and remanded to the trial court for a determination whether Petrenas's in-court identification was of independent origin.
On remand, the same judge who had presided at the trial and at the earlier guilty plea proceeding held an evidentiary hearing and concluded that Petrenas's identification had an independent source.
Jackson contends that
(1) the judge erred in ruling that the prosecutor had an absolute right to impeach
his credibility by the introduction of prior convictions, and in refusing to exercise his discretion in deciding whether to allow such impeachment in this case;
(2) Petrenas's in-court identification testimony and the testimony pertaining to her pre-trial identifications should have been excluded;
(3) the judge should not have sat as trier of fact at the assault with intent to rob trial because he had accepted a plea of guilty to the charge of attempted unlawful possession of a credit card and had presumably read a presentence report before sentencing Jackson on that charge;
(4) special findings of fact are required in judge-tried criminal cases, and the findings filed by the judge in this case were inadequate;
(5) the judge erred in excusing the production of certain indorsed res gestae witnesses;
(6) the prosecutor impermissibly introduced evidence of other crimes;
(7) the judge had a predisposition to find Jackson guilty;
(8) Jackson was placed twice in jeopardy when, after he had been convicted for attempted unlawful possession of a credit card, he was prosecuted for assault with intent to rob being armed.
We reverse and remand for a new trial because the trial judge did err in failing to recognize that, in the exercise of discretion, he might have refused to allow the impeachment of Jackson by reference to his prior conviction record. We also conclude that before a new trial the question whether Petrenas's claimed ability to identify Jackson has an independent scource should again be explored before a judge other than the one who sat at the trial.
The statute provides that no person shall be disqualified as a witness by reason of his interest or his having been convicted of any crime but his 'interest or conviction May be shown for the purpose of affecting his credibility.' (Emphasis supplied.) 2
In Luck v. United States, 121 U.S.App.D.C. 151, 156, 348 F.2d 763, 768 (1965), the United States Court of Appeals for the District of Columbia Circuit held, under a statute with fundamentally the same language as the Michigan statute, that a trial judge may, in the exercise of discretion, exclude evidence of prior crimes:
(Emphasis by the Court).
Subsequently, in Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967), Chief Justice, then Judge, Burger suggested guidelines for the exercise of this trial judge discretion. Among the factors to be considered are the nature of the prior offense, whether it is for substantially the same conduct for which the accused is on trial, and the effect on the decisional process if the accused does not testify from fear of impeachment by prior convictions. 3
The highest courts of California, Pennsylvania, Illinois, Wisconsin, Connecticut, Alaska, Kentucky and New Mexico have also adopted the view that the question rests in the trial judge's discretion, the California and Pennsylvania Courts expressly adopting the factor-balancing approach of the Luck-Gordon opinions. 4 Mr Justice Schaefer, speaking for a unanimous Illinois Supreme Court, declared:
'The question is inherently judicial, and we believe that view is correct which places the discretion as to the admissibility of this kind of evidence in the judge rather than in the prosecutor.' People v. Montgomery, 47 Ill.2d 510, 515, 268 N.E.2d 695, 698 (1971). 5
In People v. Cummins, 47 Mich. 334, 336, 11 N.W. 184, 185 (1882), this Court, in its first statement after the legislative elimination of the common law disability of a defendant in a criminal case to testify in his own behalf, declared 'it was quite within the Discretionary authority of the trial judge' (emphasis supplied) to permit a defendant who had elected to testify to be cross-examined as to his prior conviction record. 6
In People v. Farrar, 36 Mich.App. 294, 300--306, 193 N.W.2d 363 (1971), a panel of the Court of Appeals adopted the Luck construction, and held it was error for a trial judge to fail to recognize that he may, in the exercise of discretion, refuse to allow reference to a defendant's prior conviction record. This construction of the statute has been followed in subsequent Court of Appeals decisions. 7
We are persuaded that a trial judge may in the exercise of discretion exclude reference to a prior conviction record, and that it is error to fail to recognize that he has such discretion and, therefore, to fail or to refuse to exercise it.
In so construing our statute we have in mind that it is the duty of this Court to make the ultimate decision on whether to adopt, amend or retain a rule of evidence. 8
In this case, at the conclusion of the people's proofs, Jackson's lawyer asked the judge to bar the use of his conviction record should he take the stand and testify in his own behalf. The judge responded that under the statute he had no choice but to allow the use of such evidence for impeachment purposes. The judge, thus, did not recognize that he enjoyed a discretion to exclude such evidence, and in refusing counsel's request, did not exercise his discretion to allow or disallow the use of such evidence. On remand, the trial judge shall, upon request, in the exercise of his discretion, decide whether to exclude any reference to Jackson's prior conviction record.
In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the United States Supreme Court, with less than five justices joining in an opinion, declared that the Wade 9--Gilbert 10 exclusionary rules, restricting the use of in-court identification following a pretrial corporeal identification during which the accused was not represented by counsel, did not apply to identification testimony following a corporeal identification that takes place before the accused has been indicted or otherwise formally charged.
In United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), the Supreme Court held that the Sixth Amendment does not guarantee an accused the right to counsel at photographic displays at which witnesses attempt to identify a suspect. The Court distinguished its earlier Wade decision, requiring counsel at corporeal identifications, on the basis that the suspect is not physically present at a photo showing. This conclusion was rested essentially on the Court's analysis limiting the Sixth Amendment right to counsel to only 'trial-like confrontation' at which the accused requires the 'guiding hand of counsel.'
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