People v. Luther

• Decision Date: 30 October 1969
• Docket Number: No. 1,Docket No. 6024,1
• Citation: 20 Mich.App. 42,173 N.W.2d 797
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John H. LUTHER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 797

173 N.W.2d 797

20 Mich.App. 42

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

Docket No. 6024.

Court of Appeals of Michigan, Division No. 1.

Oct. 30, 1969.

Released for Publication Feb. 4, 1970.

James A. Sullivan, Vandeveer, Doelle, Garzia, Tonkin & Kerr, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Wayne County, Samuel J. Torina, Chief Appellate Lawyer, Wayne County, Luvenia D. Dockett, Asst. Pros. Atty., Wayne County, Detroit, for appellee.

Before FITZGERALD, P.J., and McGREGOR and V. J. BRENNAN, JJ.

FITZGERALD, Presiding Judge.

This case brings before us a matter of first impression in the jurisprudence of the State. It may be stated simply: Is it error for the trial court to permit a defendant's impeachment by use of his prior testimony given at his juvenile court waiver hearing? Other matters raised on appeal are peripheral and will be disposed of by the action taken on this core question.

The defendant, John H. Luther, was convicted of the crime of robbery armed ¹ in 1968 after a jury trial. The charge arose from an incident occurring in 1967 at a drug store in Detroit. The defendant was arrested in Canada approximately two months after the robbery and, being under the age of 17 years, was placed under the jurisdiction of the Wayne County probate court. A hearing was held to determine whether or not jurisdiction would be waived to circuit court. The probate court, in its discretion, waived jurisdiction of defendant to the recorder's court of the City of Detroit where he was tried.

During the course of the trial, two incidents occurred relating to the indorsement of a witness and chastising defendant's counsel, outside the presence of the jury, to the point of the threat of a contempt citation. The matter with which we are most directly concerned, however, occurred when the defendant took the witness stand in his own defense. During the cross-examination of the defendant, the prosecutor sought to impeach him by use of testimony that had been given by the defendant before the probate court at the waiver hearing. Defense counsel objected to the use of this testimony and the objection was overruled by the court. A motion for mistrial was made on the ground that the court erred in allowing the prosecutor to use the testimony from the waiver hearing and on other grounds. The motion was denied.

On appeal, defendant's counsel cites C.L.1948, § 712A.23 (Stat.Ann.1962 Rev. § 27.3178(598.23)) as proventing use of the probate court testimony of defendant for impeaching him.

'A disposition of any child under this chapter, or any evidence given in such case, shall not in any civil, criminal or any other cause or proceeding whatever in any court, be lawful or proper evidence against such child for any purpose whatever, except in subsequent cases against the same child under this chapter.'

Counsel interprets this section as permitting the use of the testimony only in a subsequent case against the same child under this specific chapter of the probate code, I.e., the juvenile section, pointing out that it would not be permissible in proceedings in recorder's court. The people counter by stating that with attainment of age 15, the protective shield of the probate court is not absolute, but gives way upon a waiver to a trial court of general jurisdiction, arguing that all proceedings related to the one crime should be usable to the extent that it is admissible and specifically for impeachment purposes.

The trial court in its determination of the issue relied upon People v. Smallwood (1943), 306 Mich. 49, 10 N.W.2d 303, 147 A.L.R. 439. We cannot see the corollary between the instant case and the Smallwood case. In Smallwood, it was the complaining witness's credibility which was tested by the use of the juvenile waiver hearing testimony. The Smallwood court, however, provides us with an interpretation of the aim of the provisions in the statute respecting juveniles:

'To hide youthful errors from the full gaze of the public and bury them in the graveyard of the forgotten past.' State v. Guerrero (1942), 58 Ariz. 421, 120 P.2d 798, 802. It prohibits the use of juvenile court proceedings or evidence obtained therein against a child in any other court to discredit him as one possessing a criminal history. * * * However, in the present case there was no effort to impeach the child's character but rather to ascertain her credibility.' (At p. 53, 10 N.W.2d at p. 304.)

To date, the question presented here has not been clearly answered. Since the opinion in Smallwood, the Michigan Supreme Court, and this Court, have treated only one case related to the question. In People v. Roberts (1961), 364 Mich. 60, 110 N.W.2d 718, the Supreme Court said (by a divided court, and in a dissent for quashal of the information):

'We are not required by the facts of this case to decide whether a juvenile's confession or admission obtained during interrogation before juvenile court waiver of jurisdiction is ever admissible in a criminal court proceeding.'

That case came up on appeal from an order denying a motion to quash...