People v. Poindexter

• Decision Date: 07 January 1985
• Docket Number: Docket Nos. 72838,73311
• Citation: 138 Mich.App. 322,361 N.W.2d 346
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel POINDEXTER, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronnie FORT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 346

361 N.W.2d 346

138 Mich.App. 322

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel POINDEXTER, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronnie FORT, Defendant-Appellant.

Docket Nos. 72838, 73311.

Court of Appeals of Michigan.

Submitted Aug. 14, 1984.

Decided Oct. 15, 1984.

Released for Publication Jan. 7, 1985.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Frank J. Bernacki Asst. Pros. Atty. (in No. 73311), and Jeffrey Caminsky, Asst. Pros. Atty. (in No. 72838), for the People.

Robert E. Slameka, Detroit, for defendant-appellant Poindexter.

Rose Mary C. Robinson, Detroit, for defendant-appellant Fort.

Before T.M. BURNS, P.J., and KELLY and N.J. KAUFMAN, ^* JJ.

N.J. KAUFMAN, Judge.

Defendants were convicted by jury of extortion, M.C.L. Sec. 750.213; M.S.A. Sec. 28.410, and were each sentenced to 5 to 20 years imprisonment. Defendant Fort was also convicted of felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Both defendants appeal as of right.

Eric Pasha testified that while at an arcade he overheard defendants discussing a plan to snatch his sister Crystal's purse and jewelry. As defendants approached Crystal, Eric grabbed defendant Fort, and a fight ensued, during which defendant Fort was thrown through a window. A couple of weeks later, both defendants appeared at the Pasha residence and asked Eric's mother for $200 reimbursement to pay for the broken window. Mrs. Pasha testified that she told them she would pay half the bill if they showed her a receipt. Two or three days later, defendants telephoned the Pasha residence inquiring about the $200. When reminded of the receipt, one reportedly responded, "It's alright and I'll be around to get my money though."

Defendants continued to phone the Pasha residence demanding the $200. Finally on November 17, they told Mrs. Pasha, "We're coming to get our money and we're going to get our money today. We're coming nine-strong." Mrs. Pasha immediately phoned the police, who arrived in time to hear another phone call from defendants, demanding money. Eric, as instructed by the police, told defendants to come and get the money. When defendants arrived 40 minutes later, Eric gave them a package supposedly containing money; as soon as defendant Poindexter received it, the police interceded. After a struggle, the police arrested the defendants. Defendant Fort was found to be carrying a .22-caliber revolver in his jacket pocket.

Defendants first argue that they were denied their right to confrontation by the trial court's ruling that they could not impeach Eric Pasha with his prior juvenile record. The United States Supreme Court has ruled that the Sixth Amendment right to confrontation is paramount to the state's policy of protecting a juvenile offender, and any temporary embarrassment to the witness or his family resulting from the disclosure of his juvenile record is outweighed by a defendant's right to cross-examine witnesses effectively for possible bias. Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974).

Michigan has a statute similar to the juvenile protection statute at issue in Davis v. Alaska. Michigan's statute reads:

"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." M.C.L. Sec. 712A.23; M.S.A. Sec. 27.3178(598.23).

The purpose of the statute is to hide youthful errors from the full glare of the public by preventing a juvenile court conviction from subsequently discrediting the individual due to childhood actions. People v. Pennington, 113 Mich.App. 688, 697, 318 N.W.2d 542 (1982), citing People v. Smallwood, 306 Mich. 49, 10 N.W.2d 303 (1943). Thus the statute protects not only juveniles, but also adults with juvenile records. Although not revealed in the record, we assume Eric Pasha was no longer a juvenile at the time of this trial.

Our research has not yielded any Michigan cases discussing this statute's applicability to an impeachment by use of a juvenile record since Davis v. Alaska was handed down. Earlier cases upheld impeachment of witnesses by cross-examination as to juvenile records based on the holding in People v. Smallwood, supra, that where the word of one person against another is determinative, all facts pertaining to the credibility of the principal witness should be brought out. In People v. Davies, 34 Mich.App. 19, 190 N.W.2d 694 (1971), this Court expanded Smallwood to cases other than sexual offenses, reasoning that where the people's case turns on the credibility of a juvenile witness, there is no sound reason for excluding the history of juvenile offenses in a case not against that juvenile offender but against someone else whose liberty is at stake. Subsequent cases relied on Davies to reverse convictions of defendants who were not allowed to impeach key prosecution witnesses with their juvenile records. People v. Basemore, 36 Mich.App. 256, 193 N.W.2d 335 (1971), People v. Yacks, 38 Mich.App. 437, 196 N.W.2d 827 (1972), People v. Meadows, 46 Mich.App. 741, 208 N.W.2d 593 (1973), People v. Glover, 47 Mich.App. 454, 209 N.W.2d 533 (1973).

Michigan case law appears to be contrary to the general rule in other jurisdictions that a witness may not be impeached by use of the witness's juvenile court record. See Anno: Use of Judgment in Prior Juvenile Court Proceeding to Impeach Credibility of Witness, 63 A.L.R.3d 1112, Secs. 3 and 4, pp. 1120-1124.

But then in 1978 Michigan adopted MRE 609(d), identical to FRE 609(d), which reads:

"Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence."

This rule is broader than the statute but narrower than previous decisions. It has been relied on to prevent use of prior juvenile adjudications to impeach the credibility of a juvenile defendant. See In the Matter of Clabe Hunt, 407 Mich. 918 (1979).

In People v. Hawkins, 58 Mich.App. 69, 226 N.W.2d 851 (1975), this Court emphasized that the Smallwood line of cases did not go so far as to strip the statutory protection from every witness, nor did these cases limit the trial judge's discretion to control the scope of cross-examination of witnesses.

"Thus, the cases have all involved facts similar to Smallwood, allowing impeachment of a complainant in a one-against-one case, or were cases in which the witness was described as a 'key witness' or as being a chief witness, indispensable, or otherwise crucial to the case. None of the cases involve a discussion of the duties of the trial judge in exercising his discretion, but we think it implicit in all of them that there is such a discretion which, in criminal cases, is to be exercised in favor of impeaching cross-examination, notwithstanding the protective statute, where the credibility of an accusatory witness is essential to conviction.

"We think it equally clear that in other situations, the trial judge is required to weigh the policy considerations of the statute against the need to attack credibility in the light of all of the circumstances of the case. The preliminary question addressed to the trial judge will be dual in nature, going both to the role of the witness in the trial and to the nature of the juvenile record of the witness. As to the first, the kind of testimony elicited from the witness and its purpose, whether it is accusatory, whether it is direct or circumstantial, whether it is corroborative or cumulative and to what degree, whether the witness is hostile or has an interest in the outcome of the case, are among the factors to be considered. As to the juvenile record, the court should consider not only what conduct was involved, but also the period of time which has since elapsed." 58 Mich App 74-75. (Footnotes omitted.) (Emphasis added.)

Hawkins was decided prior to Davis v. Alaska, and does not consider the constitutional right to confrontation. However, its instruction that courts evaluate the role of the witness's testimony foreshadowed the analysis used in some post-Davis cases reviewing a trial court's decision to prohibit impeachment of a prosecution witness by use of juvenile adjudications. In Gonzales v. State, 521 P.2d 512 (Alaska, 1974), cert. den. 419 U.S. 868, 95 S.Ct. 125, 42 L.Ed.2d 106 (1974), the court affirmed the trial court's refusal to permit inquiry into prior juvenile adjudications, distinguishing the case from Davis by pointing out that impeachment of general credibility by prior convictions is of considerably less probative value than use of prior convictions to show bias, which was the case in Davis. The trial court's refusal was similarly upheld in People v. Holsey, 30 Ill.App.3d 716, 332 N.E.2d 699 (1975), because the minor was not the only witness to the crime, and other testimony greatly diminished the importance of the minor's testimony. The court stressed the continued vitality of the discretion of trial courts, reading Davis as requiring a balance of the importance of the youthful witness's testimony against the state's policy of preserving the anonymity of juvenile offenders.

In People v. Bingham, 75 Ill.App.3d 418, 31 Ill.Dec. 228, 394 N.E.2d 430 (1979), the court found it to be harmless error for the court to have excluded use of juvenile adjudications for impeachment purposes because the witness's testimony...