People v. McMillan

• Decision Date: 24 March 1976
• Docket Number: Docket No. 22695
• Citation: 242 N.W.2d 518,68 Mich.App. 113
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donna Jean McMILLAN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 518

242 N.W.2d 518

68 Mich.App. 113

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donna Jean McMILLAN, Defendant-Appellant.

Docket No. 22695.

Court of Appeals of Michigan.

March 24, 1976.

Released for Publication June 4, 1976.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter E. Deegan, Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, P.J., and J. H. GILLIS and KELLY, JJ.

J. H. GILLIS, Judge.

A jury convicted defendant of uttering and publishing, contrary to M.C.L.A. § 750.249; M.S.A. § 28.446. She was sentenced to a 2 1/2 to 14 year prison term, and appeals as of right.

On June 15, 1973, a woman attempted to cash a stolen check in a Port Huron grocery. The check was drawn on the account of one Shirley Ashford and made payable to Donna McMillan. When the store manager called the bank to verify the check, the woman fled. Three witnesses identified defendant as the woman who attempted to cash the check.

On appeal, defendant raises several issues for our consideration. We will discuss them seriatim.

I. The Alibi Instruction

At trial, defendant presented alibi testimony, and now raises objections to the instruction given the jury on alibi. Defendant urges reversal because the instruction contains language specifically disapproved in People v. McCoy, 392 Mich. 231, 220 N.W.2d 456 (1974), viz.:

'For cases tried after the publication of this opinion, it will be deemed reversible error (1) to denigrate the alibi defense 'as easily proven and hard to disprove' or to suggest that it is the burden of the defendant to 'establish' the defense.' 392 Mich. at 240, 220 N.W.2d at 460.

Here the jury was told that an alibi defense 'is one easily made or manufactured and likewise hard to disprove.' The instructions also spoke of 'sustaining' the defense.

The McCoy slip opinion ¹ is dated August 2, 1974. The Advance Sheets of Michigan Reports containing the opinion is dated August 30, 1974. We must decide whether 'publication' of the McCoy opinion is the date of the slip sheet decision or the date the decision appeared in the Advance Sheets of Michigan Reports. Though at least four opinions of this Court have stated that McCoy governs trials after August 2, 1974, People v. Crutchfield, 62 Mich.App. 149, 233 N.W.2d 507 (1975); People v. Davis, 61 Mich.App. 220, 232 N.W.2d 683 (1975); People v. Phelps, 57 Mich.App. 300, 225 N.W.2d 738 (1975); People v. Thomas, 55 Mich.App. 368, 222 N.W.2d 320 (1974), there is no indication that in any of these decisions the court was required to focus upon the exact meaning of 'publication' of McCoy. The choice of August 30th rather than August 2nd would not have led to a different result in any of these prior decisions, and we feel compelled to distinguish them on that basis.

In determining the extent of prospective effect we review other Supreme Court opinions dealing with the prospective timing of a rule the Court has pronounced. In People v. Brown, 393 Mich. 174, 181, 224 N.W.2d 38, 41 (1974), the Court stated that the announced rule would govern 'cases resulting from charges made on and after the date of this opinion.' In People v. Davis, 392 Mich. 221, 227, 220 N.W.2d 452 (1974), the Court limited its rule to 'FUTURE CASES AND IN PENDING CASES WHERE DEFEndants timely contested.' the decision in People v. Tanner, 387 Mich. 683, 690, 199 N.W.2d 202, 205 (1972), was limited by the Court 'to those cases in which sentence is to be or has been imposed After date of filing of this opinion and to those cases which On date of filing of this opinion are pending.' (Emphasis supplied.) A new rule in workmen's compensation which the Court announced in Whetro v. Awkerman, 383 Mich. 235, 244, 174 N.W.2d 783, 786 (1970), only applied to claims for compensation 'arising after March 12, 1970, the Date of the filing of this opinion.' (Emphasis supplied.)

As in McCoy, People v. Robinson, 390 Mich. 629, 634, 213 N.W.2d 106, 109 (1973), speaks of publishing rather than filing when setting the operative date. Several Court of Appeals' opinions have interpreted '(i)n appeals filed after this opinion is published' to mean that the rule in Robinson governs only after the date the opinion appeared in the advance sheets. ² People v. Coppernol, 59 Mich.App. 745, 229 N.W.2d 913 (1975); People v. Hall, 56 Mich.App. 10, 223 N.W.2d 340 (1974); People v. Koehler, 54 Mich.App. 624, 640, 221 N.W.2d 398 (1974) (dissenting opinion by O'Hara, J.). ³ We believe this to be the better rule.

Had the Court in McCoy intended its prohibition to become immediately effective, it could have used a word other than 'publication' in expressing that intention. The Court could have spoken of the date of the opinion, the date of its filing or the date of its release. By using one of these phrases, rather than speaking of publication, the Court would have clearly indicated that it intended its pronouncement to be immediately effective.

Reading 'publication' to mean publication in the Advance Sheets of Michigan Reports allows the bench and bar opportunity to become aware that certain practices, formerly allowed, are now considered error. We should not expect reliance on unavailable judicial pronouncements. We conclude that 'publication' used in McCoy means appearance in the Advance Sheets of Michigan Reports and that the prohibition in McCoy against certain language in alibi instructions did not become effective at the time of trial of defendant McMillan. We are forced to repudiate prior statements of this Court holding that McCoy became effective on August 2, 1974, the date of the slip opinion. However, moving the date forward to August 30, 1974, casts no doubt upon the validity of any of the opinions as it would not change the result in any of the prior decisions.

The McCoy rule not having been in effect, we find that the alibi instruction given in this case twice informs the jury that proof of alibi is not necessary for acquittal, and emphasizes that the burden of proof beyond a reasonable doubt remains with the prosecution. We find these instructions adequate, as when read in their entirety they satisfied existing standards.

II. The Cross-Examination

Defendant also alleges that the prosecutor improperly cross-examined her, and that reversal is mandated. On direct examination, McMillan testified that she was 29 years old, divorced, the mother of six children and unemployed. On cross-examination, she stated that she had not been employed since her divorce. The prosecutor then effectively and properly impeached her credibility by forcing her to admit that she had, in fact, worked in two different bars. We agree with Judge Kelly's determination that reference to the fact that the bars were 'topless' was irrelevant and improper. Because, however, we find the remainder of his cross-examination permissible, the reference to topless bars does not require reversal.

III. Impeachment of Defendant's Credibility

Defendant next argues that her credibility was improperly impeached in that the prosecutor referred to her prior misdemeanor convictions. Our reading of the record leaves us uncertain as to whether the convictions were for felonies or misdemeanors.

On direct examination, defendant testified that she was in jail at a certain time. On cross-examination, the prosecutor inquired as to the nature of the crimes that defendant had been jailed for:

'Q. Have you been convicted of anything else?

'A. Yes.

'Q. What?

'A. I was convicted of shoplifting.

'Q. When was that?

'A. During the time I am on probation.

'Q. Would that have been about in September, 1971?

'A. I don't know. It could have been.

'Q. Any other crimes that you have been convicted of?

'A. Soliciting.

'Q. Soliciting for what?

'A. What do you mean for what?

'Q. Soliciting for what?

'A. I don't know. I got soliciting. I don't know for what.

'Q. For purposes of prostitution?

'A. They said soliciting. That's all I know.'

Defendant testified that she was convicted for 'shoplifting'. This term is frequently used to cover three separate offenses, two of which are felonies, the other a misdemeanor. If goods were 'lifted' or stolen from a building, then regardless of the goods' value, defendant may be convicted of larceny from a building, a felony. M.C.L.A. § 750.360; M.S.A. § 28.592. If defendant 'lifts' or steals goods valued at over $100, this fact supports a conviction for larceny over $100, also a felony. M.C.L.A. § 750.356; M.S.A. § 28.588. If defendant 'lifts' or steals goods valued at under $100, this fact supports a conviction for larceny under $100, a misdemeanor punishable by 90 days in the county jail. M.C.L.A. § 750.356; M.S.A. § 28.588, M.C.L.A. § 750.504; M.S.A. § 28.772. All three of these offenses are referred to as 'shoplifting.'

Likewise, defendant testified that she had been convicted of 'soliciting.' There is no such offense in Michigan. There are many offenses involving solicitation; some are felonies, some are misdemeanors. For example, accosting and soliciting is a misdemeanor, M.C.L.A. § 750.488; M.S.A. § 28.703; soliciting an athlete is a felony, M.C.L.A. § 750.124; M.S.A. § 28.319; soliciting patients for a dentist is a misdemeanor, M.C.L.A. § 338.216; M.S.A. § 14.629(16); and soliciting anyone to polygamous life is a felony, M.C.L.A. § 750.441; M.S.A. § 28.696. This list is not exhaustive; it is used for illustrative purposes only.

It is our belief that defendant's claim that she was impeached by use of prior misdemeanor convictions is not supported by the record. Even if this assumption was true, People v. Renno, 392 Mich. 45, 219 N.W.2d 422 (1974), does not mandate reversal, in that its holding does not constitute a per se reversal rule. Under the circumstances of this case, and assuming Arguendo that the convictions were for misdemeanors, we hold the error harmless. People v. Roberson, 55 Mich.App. 413, 222 N.W.2d 761 (1...