People v. McMaster

• Decision Date: 14 January 1987
• Docket Number: Docket No. 84176
• Citation: 398 N.W.2d 469,154 Mich.App. 564
• Parties: PEOPLE of the City of Troy, Plaintiff-Appellee, v. William Donald McMASTER, Defendant-Appellant. 154 Mich.App. 564, 398 N.W.2d 469
• Court: Court of Appeal of Michigan — District of US

Page 469

398 N.W.2d 469

PEOPLE of the City of Troy, Plaintiff-Appellee, v. William Donald McMASTER, Defendant-Appellant.

Docket No. 84176.

154 Mich.App. 564, 398 N.W.2d 469

Court of Appeals of Michigan.

Submitted Feb. 6, 1986.

Decided Sept. 9, 1986.

Released for Publication Jan. 14, 1987.

[154 MICHAPP 565] Debra A. Christen, Asst. City Atty., Troy, for plaintiff-appellee.

Kemp, Klein, Endelman & Beer, P.C. (by John A. Anderson and James C. Steffl), Birmingham, for defendant-appellant.

Before ALLEN, P.J., and HOOD and LIVO, ^* JJ.

[154 MICHAPP 566] PER CURIAM.

Defendant William McMaster appeals by leave granted from a circuit court order affirming his district court jury conviction for driving with a suspended license. Defendant appeals from his conviction by arguing that the court erred in allowing into evidence a Secretary of State document which referred to his prior arrests and convictions. The second issue raised by defendant on appeal is that the court erred in failing to instruct the jury that driving without a license is a lesser included offense of driving with a suspended license.

Defendant's license was suspended following a Secretary of State appeal hearing following the automatic suspension of his license for failure to take a Breathalyzer test. Suspension was for the period of February 14, 1984, through February 15, 1985, and notice of the suspension was sent by mailing the denial of McMaster's appeal to his last known address. On April 23, 1984, defendant was stopped by a police officer while driving a motor vehicle and asked to present his license. Defendant produced his license and the officer, after checking and finding that defendant's license was suspended, proceeded to arrest and charge him with driving on a suspended license, a violation of Chapter 106, Sec. 5.62a(1) of the Troy City Code.

At trial, the city introduced a certified Secretary of State document which stated the suspended status of McMaster's license and had attached to it a copy of the Secretary of State hearing officer's decision as to the earlier appeal of the suspension of defendant's driver's license. The attachments included a sworn statement of the hearing officer that the notice of the decision had been mailed to defendant at his last known address. The court, over the objection of defendant, allowed the document into evidence, citing MRE 803(8).

[154 MICHAPP 567] At the time of instructing the jury, defendant requested that the court instruct the jury that failure to display a license on demand (a violation of Troy City Code, Chapter 106, Sec. 5.63) was a lesser included offense of driving with a suspended license. The trial court refused to include such an instruction, ruling that the penalties of the two offenses, being identical, precluded instructing the jury that no license in possession was a lesser included offense of driving on a suspended license.

Defendant was found guilty of the offense of driving with a suspended license and was sentenced to serve fifteen days in jail and to pay a fine of $100. Following the affirmance of McMaster's conviction by the circuit court, this Court granted defendant leave to appeal on April 15, 1985.

Was the admission of the Secretary of State document which included reference to defendant's prior arrests and convictions error?

Defendant argued at trial that the Secretary of State document is inadmissible as hearsay. The trial court overruled defendant's objections and allowed the document into evidence, as an exception to the hearsay rule under MRE 803(8). On appeal, defendant has raised the issue of the prejudicial effect of allowing the jury to see evidence of his prior convictions. Failure to object at trial to the admission of evidence constitutes a waiver of the appellate challenge to the evidence. Taylor v. Lowe, 372 Mich. 282, 126 N.W.2d 104 (1964). This rule applies even though there is an objection at trial to the admission of the evidence on grounds other than those stated on appeal. "Evidentiary objections must be specific and state the precise ground or grounds for the objection. Failure to state the proper reason precludes appellate review [154 MICHAPP 568] unless there is manifest injustice. MRE 103(a)(1)." People v. Watts, 145 Mich.App. 760, 764, 378 N.W.2d 787 (1985), lv. den. 424 Mich. 889 (1986).

It is the defendant's burden to show affirmatively that he was denied a fair trial by the admission of the Secretary of State document. People v. Chartrand, 73 Mich.App. 645, 252 N.W.2d 569, lv. den. 400 Mich. 848 (1977). Defendant argues that the fact that the jury deliberated for more than two hours manifests the harmful error of admitting this document. The Court finds this argument to be unsupported by any evidence and cannot therefore conclude that the length of time a particular jury takes to deliberate is of any consequence in determining error. Furthermore, defendant himself apprised the jury of his prior confrontations with the law enforcement system. Under these circumstances, manifest injustice has not been shown to exist with respect to admission of this document into evidence.

Defendant next argues that evidence of prior offenses is only admissible to show a defendant's motive, intent, scheme, plan or system, or lack of mistake or accident. M.C.L. Sec. 768.27; M.S.A. Sec. 28.1050. However, MRE 404(b) supersedes the statute and provides:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of the person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crime [sic], wrongs, or acts are contemporaneous with, or prior or subsequent to the crime charged."

MRE 404(b) absolutely bars the admission of [154 MICHAPP 569] prior bad acts when the only purpose of the evidence is to prove the defendant's criminal character. The rule also provides a nonexclusive list of when a defendant's bad acts are admissible. The general rule is that evidence of other crimes is inadmissible because it is irrelevant to a defendant's guilt but increases the chances of conviction because it tends to depict the defendant as an habitual criminal. An examination of the purpose for admitting the Secretary of State document is crucial.

"Whenever a question is made upon the admission of evidence, it is indispensable to consider the object for which it is produced, and the point intended to be established by it.... It frequently happens that an item of proof is plainly relevant and proper for one purpose, while wholly inadmissible for another, which it would naturally tend to establish. And when this occurs the evidence, when offered for the legal purpose, can no more be excluded on the ground of its aptitude to show the unauthorized fact, than its admission to prove such unauthorized fact can be justified on the ground of its aptness to prove another fact legally provable under the issue." People v. Doyle, 21 Mich. 221 (1870).

The purpose of the Secretary of State document was twofold: (1) to show that McMaster's license was suspended on April 23, 1984, and (2) to show that McMaster was notified of his suspension as prescribed by statute. To prove the offense charged, the prosecution would necessarily have to demonstrate that defendant's license was in fact suspended and that he had been notified of that suspension in compliance with provisions of Chapter 106, Sec. 5.62a of the Troy City Code and the comparable state statute, M.C.L. Sec. 257.311; M.S.A. Sec. 9.2011.

[154 MICHAPP 570] At trial, defendant argued that he was unaware that his license had been suspended. Assuming that only evidence admitted for purposes listed in MRE 404(b) is permissible, the Secretary of State document was properly admitted to show that defendant's license was suspended and that defendant had knowledge of such suspension. Although defendant alleged that he did not have knowledge of the license suspension, the jury found the evidence of the prosecution more credible then defendant's testimony on this issue and found defendant guilty of driving with a suspended license.

Here, the record does not reflect that the trial judge exercised his discretion in weighing the probative value of the evidence against the potential prejudicial effect of such admission, since no objection on this basis was raised at trial. The trial court is not required to apply the balancing test where no proper objection to the evidence has been made, People v. Florida, 61 Mich.App. 653, 233 N.W.2d 127, lv. den. 394 Mich. 830 (1975), as "[w]here the trial judge's discretion has not been invoked, there can be no abuse of that discretion, and consequently no error." People v. Jones, 44 Mich.App. 633, 638, 205 N.W.2d 611 (1973). Absent a showing of manifest injustice, there can be no reversal. People v. Hudgins, 125 Mich.App. 140, 336 N.W.2d 241 (1983).

Here, the defense sought to inject evidence regarding McMaster's prior arrest as part of the trial strategy. The jury was repeatedly informed of defendant's prior offenses by defendant's own testimony and argument. Where a defendant raises the issue of his prior bad acts, he has waived any claim of error. See People v. Stanton, 97 Mich.App. 453, 296 N.W.2d 70 (1980); People v. Williams, 84 Mich.App....