People v. Redmon

• Decision Date: 22 February 1982
• Docket Number: Docket No. 56415
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joyce Elaine REDMON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 909

315 N.W.2d 909

112 Mich.App. 246

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joyce Elaine REDMON, Defendant-Appellant.

Docket No. 56415.

Court of Appeals of Michigan.

Submitted Oct. 7, 1981.

Decided Jan. 6, 1982.

Released for Publication Feb. 22, 1982.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., and John A. Cothorn, Asst. Pros. Atty., for the People.

George W. Kelsey, Ypsilanti, for defendant-appellant.

Before ALLEN, P. J., and KELLY and KELLEY, ^* JJ.

ALLEN, Presiding Judge.

May a key prosecution witness be impeached by evidence of prior convictions where more than ten years have elapsed since the date of the convictions or the release of the witness from confinement imposed for those convictions as proscribed by MRE 609(b)? This question of first impression comes to us on leave granted on the following facts.

In late 1980, defendant was charged with inciting, inducing or exhorting one Russell Haynes to murder one Franklin Manners. M.C.L. § 750.157b; M.S.A. § 28.354(2), and M.C.L. § 750.316; M.S.A. § 28.548. However, the record does not indicate murder occurred. Defendant pled not guilty, waived preliminary examination and was bound over to circuit court where trial was scheduled to be held January 19, 1981. Defendant moved for discovery of the prior criminal record of Russell Haynes who was endorsed as a key witness for the prosecution. The motion was granted and examination of the criminal record of the witness disclosed eight convictions, spanning the years 1940 to 1967, for larceny, forgery, counterfeiting, and related fraudulent activities. ¹ Defendant then moved that the record of prior convictions be allowed in evidence at trial in order that the witness be fully cross-examined and the jury allowed to determine for itself the credibility of the prosecution witness who is defendant's accuser. At that hearing, defendant argued that her Sixth Amendment right took precedence over Michigan Rules of Evidence. Following hearing, the Honorable Ross W. Campbell, Circuit Judge for Washtenaw County, ruled that the prior convictions could not be allowed because they occurred more than ten years ago and were not admissible under MRE 609(b), a rule which the trial court felt bound to follow.

" * * * (I)t seems to me that we should let the jury know about the prior convictions if they have any bearing at all or may have any bearing on credibility.

"We are then left with the limiting instruction, but I didn't write these rules. The fact that the Michigan Supreme Court is at variance with all of the federal courts throughout the entire United States shows their willingness to stand by what they consider the wisdom of the ten year exclusionary rule. It certainly is not the province of the trial judge to attempt to pass judgment on the wisdom or validity of such a rule by our Michigan Supreme Court. In point of fact, that court itself is the one that will review the wisdom and validity of its own rule."

However, Judge Campbell agreed that the question of law raised was of such importance that it would in all probability be raised in other circuits and on February 17, 1981, entered a consent order certifying the question for interlocutory appeal. On April 29, 1981, this Court granted defendant's application for leave to appeal.

MRE 609(b) provides:

"Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date."

Under federal rule F.R.E. 609(b), a federal district judge has discretion to allow impeachment by convictions which are more than ten years old:

"Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence."

To date, the cases discussing MRE 609(b) have enforced its plain terms. See, for example, People v. Slager, 105 Mich.App. 593, 595-596, 307 N.W.2d 376 (1981); People v. Huff, 101 Mich.App. 232, 239, 300 N.W.2d 525 (1980); People v. Featherstone, 93 Mich.App. 541, 544-545, 286 N.W.2d 907 (1979). In People v. Worden, 91 Mich.App. 666, 679, 284 N.W.2d 159 (1979), a panel of this Court stated in dicta that "(n)ew MRE 609(b) absolutely prohibits the introduction for impeachment purposes of evidence of a conviction more than ten years old". However, all of the cases cited above involve impeachment of the defendant. None involve the situation in the instant case, viz.: impeachment of a key prosecution witness who would testify against the defendant. This important distinction was noted by the trial court in certifying the question for interlocutory appeal. ² Consequently, the issues presented in the instant case are of first impression. Does the Sixth Amendment right to confrontation take precedence over a state statute or court rule which limits the right to disclose prior convictions of a key prosecution witness? If so, may this Court so rule, or is it a matter which only the Supreme Court may act upon?

The federal courts have not hesitated to strike down a state statute or rule of evidence materially restricting the right of an accused to cross-examine a prosecution witness. In Chambers v. Mississippi, 410 U.S. 284, 295, 297-298, 93 S.Ct. 1038, 1045, 1046-47, 35 L.Ed.2d 297 (1973), the Court held that the Sixth Amendment right to confrontation was violated when petitioner was not allowed to impeach a witness because of Mississippi's voucher rule, a common law rule that prohibited a party from impeaching his own witness. The Court stated:

"The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the 'accuracy of the truth-determining process.' Dutton v. Evans, 400 U.S. 74, 89 (91 S.Ct. 210 (219), 27 L.Ed.2d 213) (1970); Bruton v. United States, 391 U.S. 123, 135-137 (88 S.Ct. 1620 (1627-28), 20 L.Ed.2d 476) (1968). It is, indeed, 'an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal.' Pointer v. Texas, 380 U.S. 400, 405 (85 S.Ct. 1065 (1068), 13 L.Ed.2d 923) (1965). Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. E.g., Mancusi v. Stubbs, 408 U.S. 204 (92 S.Ct. 2308, 33 L.Ed.2d 293) (1972). But its denial or significant diminution calls into question the ultimate ' "integrity of the fact-finding process" ' and requires that the competing interest be closely examined. Berger v. California, 393 U.S. 314, 315 (89 S.Ct. 540 (541), 21 L.Ed.2d 508) (1969)

" * * * The availability of the right to confront and to cross-examine those who give damaging testimony against the accused has never been held to depend on whether the witness was initially put on the stand by the accused or by the State. We reject the notion that a right of such substance in the criminal process may be governed by that technicality or by any narrow and unrealistic definition of the word 'against.' The 'voucher' rule, as applied in this case, plainly interfered with Chambers' right to defend against the State's charges."

Likewise, in Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974), the Supreme Court held that the Sixth Amendment right to confrontation was violated when petitioner was not allowed to cross-examine a key prosecution witness about his juvenile offender status because of an Alaska rule prohibiting disclosure in court of an "adjudication, order, or disposition of a juvenile case". Although recognizing that Alaska had an interest in protecting the anonymity of juvenile offenders, the Supreme Court concluded that the right to confrontation was paramount to the state's policy of protecting juvenile offenders.

"Whatever temporary embarrassment might result to Green or his family by disclosure of his juvenile record-if the prosecution insisted on using him to make its case-is outweighed by petitioner's right to probe into the influence of a possible bias in the testimony of a crucial identification witness."

In the recent case of Burr v. Sullivan, 618 F.2d 583 (CA 9, 1980), Burr was tried and found guilty in the state court for arson. The state based its case on the testimony of two juvenile accomplices. When Burr sought to cross-examine the accomplices regarding 52 and 48 burglaries admitted to in a juvenile proceeding conducted after the arson, the state objected on grounds that an Oregon statute prohibited disclosure of such proceedings. The trial court granted the state's motion to strike. In a habeas corpus proceeding, the federal district court held that Burr's right to confrontation was denied. Appeal was then taken to the circuit court of appeals which affirmed saying:

"There is a further, alternative ground to support our ruling. The state trial court sua sponte declared that it would not, as the trier of fact, give any consideration to the point that the second witness, in cross-examination, testified that he had admitted commission of 48 burglaries in the juvenile proceeding conducted after the arson. The court based its ruling on...