People v. Johnson

• Decision Date: 08 August 1978
• Docket Number: Docket No. 77-1532
• Citation: 85 Mich.App. 181,270 N.W.2d 734
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis JOHNSON, Defendant-Appellant. 85 Mich.App. 181, 270 N.W.2d 734
• Court: Court of Appeal of Michigan — District of US

Page 734

270 N.W.2d 734

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis JOHNSON, Defendant-Appellant.

Docket No. 77-1532.

85 Mich.App. 181, 270 N.W.2d 734

Court of Appeals of Michigan.

Aug. 8, 1978.

Rehearing Denied Sept. 21, 1978.

Released for Publication Oct. 20, 1978.

[85 MICHAPP 182] Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief by Robert M. Morgan, Asst. Pros. Attys., for plaintiff-appellee.

Before MAHER, P. J., and J. H. GILLIS and LOUIS D. McGREGOR, ^* JJ.

PER CURIAM.

Defendant was tried and convicted by a jury of first-degree murder, contrary to M.C.L. § 750.316; M.S.A. § 28.548. He was subsequently sentenced to life imprisonment and now appeals as of right.

Only one issue raised by defendant in his brief on appeal merits discussion by this Court.

Defendant contends that the trial court committed reversible error by failing to exercise its discretion in response to defense counsel's motion to suppress defendant's prior convictions. We agree.

Prior to the commencement of trial, defense counsel moved that the criminal record of defendant be suppressed in the event that defendant testified. Defense counsel advised the trial court that defendant had three previous felonies. The prosecutor argued that if the defendant's prior convictions were to be suppressed, the defense should not be permitted to cross-examine the prosecution's chief witness about her previous convictions. Defense counsel would not agree to refrain [85 MICHAPP 183] from impeaching the witness. The trial court responded to the motion in the following manner:

"The Court : Well, I will rule that it will remain that way. Either they both come in or they both state (Sic ) out and you decide which way you want to do it."

M.C.L. § 600.2159; M.S.A. § 27A.2159 provides in part that:

"No person shall be disqualified as a witness in any civil or criminal case or proceeding by reason of his interest in the event of the same as a party or otherwise or by reason of his having been convicted of any crime; but such interest or conviction may be shown for the purpose of affecting his credibility."

The foregoing provision has been interpreted to provide that the trial judge may, in the exercise of his discretion, exclude reference to defendant's prior convictions. ¹ Upon proper motion, the trial judge must recognize that he/she has such discretion, and failure to do so constitutes reversible error. People v. Jackson, 391 Mich. 323, 336, 217 N.W.2d 22 (1974).

Also, in order to comply with Jackson, supra, the trial judge must positively indicate and identify his/her exercise of discretion on the record. People v. Cherry, 393 Mich. 261, 224 N.W.2d 286 (1974), People v. Strickland, 78 Mich.App. 40, 53, 259 N.W.2d 232 (1977).

In the instant case, the trial court recognized that it had discretion to permit or disallow impeachment of defendant via his prior convictions, but failed to exercise this discretion. Instead, the trial court left the decision to the parties.

[85 MICHAPP 184] The trial court's delegation of its discretionary powers to the parties constitutes...