People v. Paduchoski, Docket No. 14577

• Decision Date: 02 November 1973
• Docket Number: No. 1,Docket No. 14577,1
• Citation: 213 N.W.2d 602,50 Mich.App. 434
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patrick W. PADUCHOSKI, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 602

213 N.W.2d 602

50 Mich.App. 434

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patrick W. PADUCHOSKI, Defendant-Appellant.

Docket No. 14577.

Court of Appeals of Michigan, Division No. 1.

Nov. 2, 1973.

Released for Publication Jan. 15, 1974.

Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Gerard A. Poehlman, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and FITZGERALD and WALSH*, JJ.

WALSH, Judge.

Defendant, Patrick, W. Paduchoski, and one William Hawthorne were convicted by a jury of attempted larceny in a building. M.C.L.A. § 750.360; M.S.A. § 28.592. Each was sentenced to 1 year probation. Defendant Paduchoski only appeals his conviction.

Defendant first argues that the trial judge erred in defining the element of intent in his instructions to the jury. While this instruction was somewhat ambiguous, no objection was made to it at trial. Absent a showing of manifest injustice, objections to instructions cannot be raised for the first time on appeal. GCR 1963, 516.2; People v. Flowers, 30 Mich.App. 579, 186 N.W.2d 777 (1971); People v. Miron, 31 Mich.App. 142, 187 N.W.2d 497 (1971); People v. Smith, 31 Mich.App 191, 187 N.W.2d 490 (1971). No manifest injustice resulted from the instruction on intent. We hold therefore, no reversible error arose from this instruction.

Next, did the trial court commit reversible error when it ruled during cross-examination of the key prosecution witness that the witness' place of employment was immaterial?

Defendant and Hawthorne, employees of the Acme Quality Paint Company, were charged with larceny in the company's warehouse on the night of September 14, 1971. An eyewitness, Joseph Bryant, who was standing across the street from the warehouse, testified that he saw defendant Paduchoski jump from a car and run into the building through a side door. He further testified that a few seconds later both defendants ran from the warehouse to the street and began walking down the sidewalk. An arresting police officer testified that defendants, who were apprehended as they walked down the sidewalk, were the same two men he momentarily viewed in the warehouse. However, the officer admitted that he lost sight of the two men after they fled through the side door. Thus, only witness Bryant's testimony unequivocally identifies the two men in the warehouse as the defendants.

On cross-examination, counsel for appellant's co-defendant asked Mr. Bryant where he worked. The court sustained the prosecutor's objection, ruling that where the witness works is immaterial. During cross-examination by appellant's counsel an objection was made to a question concerning the witness' residence. During the colloquy between counsel and trial judge the question of place of employment again arose:

'Mr. Young: Well I take the position, your Honor, and I have to take it because having tried cases for forty-four years and in cross-examination, the only way that I can properly represent a defendant in a criminal case is to cross-examine the witness on the stand at least enough to satisfy myself and to also give the jury the benefit of passing upon credibility and then I want to get to the point of where he's working. This becomes material too, and other questions that I'm going to ask. There's a lot of things that come in. There is no showing here, your Honor, to restrict this witness in reference to keeping anything secret. He's not an informer.

'The Court: It's not a matter of secrecy. It's a matter of materiality.

'Mr. Young: Well materiality I can only develop when I cross-examine the witness to establish his credibility.

'The Court: We're interested in what this witness saw that night, where he lives, what he does for a living is completely immaterial and if the courts have ruled for forty-four years otherwise, then I disagree with them.'

In Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931), the Court held that it was an abuse of discretion and prejudicial error for the trial court to prohibit cross-examination of a government witness respecting his place of residence. The Court reasoned:

'Counsel often cannot know in advance what pertinent facts may be elicited on cross-examination. * * * It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and (to) put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. * * * To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial. * * * In this respect a summary denial of the right of cross-examination is distinguishable from the erroneous admission of harmless testimony. * * * The question, ...