People v. Lytal

• Citation: 96 Mich.App. 140,292 N.W.2d 498
• Decision Date: 17 March 1980
• Docket Number: Docket No. 78-3013
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David LYTAL, Defendant-Appellant. 96 Mich.App. 140, 292 N.W.2d 498
• Court: Court of Appeal of Michigan (US)

Page 498

292 N.W.2d 498

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David LYTAL, Defendant-Appellant.

Docket No. 78-3013.

96 Mich.App. 140, 292 N.W.2d 498

Court of Appeals of Michigan.

March 17, 1980.

Released for Publication May 28, 1980.

[96 MICHAPP 145] James R. Neuhard, State App. Defender, Peter J. Van Hoek, Asst. Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert L. Kaczmarek, Pros. Atty., Linda Berns Wright, Chief Appellate Pros. Atty., for plaintiff-appellee.

Before ALLEN, P. J., and V. J. BRENNAN and MacKENZIE, JJ.

ALLEN, Presiding Judge.

Defendant appeals from his February 1978 jury convictions of four counts of possession with intent to deliver a controlled substance contrary to M.C.L. § 335.341(1)(b); M.S.A. § 18.1070(41)(1)(b). He was sentenced to concurrent prison terms of 4 to 7 years on each of the first two charges and 10 to 20 years on each of the other two charges. Five issues are raised on appeal.

I. Did the ruling, evidence and argument

concerning[96 MICHAPP 146]

defendant's prior

conviction constitute reversible error?

At the close of the prosecutor's case in chief but prior to commencement of defendant's case, the prosecution sought permission to impeach defendant's credibility with evidence of a single 1977 conviction for possession with intent to deliver a controlled substance. Defense counsel objected and requested that evidence of the prior conviction be excluded because of its overwhelming prejudicial effect. In response to the motion, the trial judge, after indicating that the issue was one addressed to his discretion, ruled:

"There is no question in the Court's mind that there could be prejudicial effect.

"However, I would like to reserve my ruling on this, because I think this depends on the testimony of the defendant, if he takes the stand. I think my I'm going to reserve ruling until the direct examination has been finished of the defendant, Mr. Lytal, and then at that time, I'll look at the previous conviction in light of the testimony that has been given to determine whether or not it would be probative value at that time."

No objection was made by defense counsel to this ruling whereupon, after a short recess, defendant took the stand and testified regarding his lack of knowledge concerning the contents of bottles shown to him by purported accomplices. Following the direct examination of defendant, the prosecutor moved to use evidence of defendant's prior conviction for impeachment purposes during his cross-examination. Defense counsel again objected to the use of evidence of this conviction on the basis that its prejudicial effect far outweighed any probative value, and that "it is not offered to impeach, but merely to convict him on this charge". The trial court rejected this contention [96 MICHAPP 147] and permitted the prosecutor to use evidence of the prior conviction for impeachment purposes, ruling:

"There is no question, of course, as any criminal conviction, I think, is prejudicial to a defendant. That, I think, the Court will always accept.

"The question is whether or not the prejudice outweighs the probative value, and in this particular case and after reviewing the direct testimony of the defendant, Mr. Lytal, the Court has determined that there is probative value on this particular conviction, because the defendant has apparently stated that he cannot read or write, and is not familiar with drugs or bottles, or whatever, and has denied that the box he had any knowledge that the box contained controlled substances when he saw it.

"I think that previous experience of the defendant in another drug, of course, is probative value, and does have probative value for the jury to decide.

"So, the Court will allow the Prosecution to impeach by prior conviction."

The prosecutor made only one reference to this conviction in his initial question on cross-examination of the defendant.

"(Prosecutor): Mr. Lytal, in 1977, were you arrested and subsequently convicted in this Circuit Court for Saginaw County? On February the 14th of 1977, did you plead guilty, and were convicted of the crime of possession with intent to deliver a controlled substance, diazapane?

"(Defendant): Yes, I was."

Defense counsel made reference to this conviction on redirect examination by following up on defendant's earlier testimony that the reason he did not want anything to do with the illegal drugs possessed by the alleged accomplices was because he [96 MICHAPP 148] "didn't want to get in no trouble" since he was already on probation from his earlier conviction.

On appeal, defendant raises numerous issues based on the foregoing occurrences which he contends justify reversal.

First, defendant maintains that the trial judge erred in reserving his ruling on the admissibility of evidence of defendant's prior conviction until after defendant had testified. Defendant argues thus:

"Motions to exclude the use of prior convictions for impeachment are left to the sound discretion of the trial judge. People v. Jackson, 391 Mich. 323, 336 (217 N.W.2d 22) (1974); MRE 609(a). When invoked, this discretion must not only be recognized but exercised. People v. Jackson, supra; People v. Cherry, 393 Mich. 261 (224 N.W.2d 286) (1974). In the instant case Judge McDonald identified the decision to be made but declined to make it until after Defendant testified on direct. He thus effectively refused to exercise his discretion when requested to do so and thereby committed reversible error. People v. McCartney, 60 Mich.App. 620, 624 (231 N.W.2d 472) (1975); People v. Davis, 61 Mich.App. 220, 224 (232 N.W.2d 683) (1975) (Maher, J., dissenting)."

In People v. McCartney, 60 Mich.App. 620, 231 N.W.2d 472, 475 (1975), a panel of this Court ruled that the trial judge erred in stating that "it could not decide this discretionary matter until the defendant had taken the stand and the prosecutor had laid an adequate foundation to question the defendant concerning his prior criminal record". In reaching this conclusion the Court reasoned that the decisions in People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974), and People v. Farrar, 36 Mich.App. 294, 193 N.W.2d 363 (1971), holding that a trial judge must exercise his discretion in determining whether to exclude reference to a prior conviction [96 MICHAPP 149] record for impeachment purposes, mandate that the trial court immediately exercise its discretion at the time the request is made by one of the parties. Our reading of those cases does not convince us that this conclusion is properly founded. Both People v. Jackson, supra, and People v. Farrar, supra, stand for the proposition that the trial court must exercise its discretion when it is requested to exclude references to a defendant's prior conviction record. Neither case holds that the exercise of that discretion must take place as soon as the motion is made. In fact, the only case in which such a holding has been rendered is People v. McCartney, supra. ¹

While it is true that in most instances the trial judge should immediately exercise his discretion when requested by a party to exclude or include reference to a defendant's prior conviction for the purpose of impeaching the defendant's testimony, in situations such as the present one, there is no need to do so until the trial judge can make an intelligent and reasoned decision based upon the circumstances as revealed at trial.

In Jackson the Michigan Supreme Court cited with approval the adoption by this Court in Farrar of the guidelines for the exercise of the trial court's discretion which were explained in Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967):

"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 [96 MICHAPP 150] testify from fear of impeachment by prior convictions." 391 Mich. 323, 333, 217 N.W.2d 22, 25.

The Court in People v. McCartney, supra, felt that the third factor noted above is violated where the trial court reserves its ruling because the decisional process is affected by the defendant's resolve not to testify from fear of possible impeachment by the prior convictions sought to be suppressed. This factor is of no concern where, as in the case at bar, the defendant takes the stand and is able to present his defense and "tell his side of the story". Naturally, where a defendant chooses to testify whether or not impeachment by evidence of prior conviction is permitted, it cannot be said that the decisional process is adversely affected by the judge's reservation. Rather, if anything, the trial judge's withheld decision in this situation permits the judge to more carefully consider the impact which the admissibility of the evidence of a prior conviction will have on the purpose for which it is admitted, i. e., impeaching defendant's testimony. In short, once the defendant has indicated that he will testify, notwithstanding the possibility of an adverse ruling by the trial judge, the judge is then put in a better position to "consider the nature of the prior offense" as it relates to defendant's credibility and the impeachment of his testimony.

In so ruling however, it must be emphasized that if the defendant demands an immediate ruling so that he may better determine whether to take the witness stand in his own behalf, the trial judge should immediately render his decision. ² [96 MICHAPP 151] This is because there may be situations in which the defendant's very decision to testify may be contingent upon whether or not the trial judge permits impeachment by prior conviction. However, where, as here, the defendant fails to object to the trial judge's decision to reserve his ruling and then proceeds to testify in his own behalf, it cannot be said that the trial judge erred...