People v. Renno

• Decision Date: 25 June 1974
• Docket Number: No. 2,2
• Citation: 219 N.W.2d 422,392 Mich. 45
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Clayton RENNO, Defendant-Appellant. 392 Mich. 45, 219 N.W.2d 422
• Court: Michigan Supreme Court

Page 422

219 N.W.2d 422

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Clayton RENNO, Defendant-Appellant.

No. 2.

392 Mich. 45, 219 N.W.2d 422

Supreme Court of Michigan.

June 25, 1974.

St. Clair County Pros. Atty., by Peter R. George, Chief Appellate Atty., Port Huron, Michael J. Callaghan, Research Asst., for plaintiff-appellee

State Appellate Defender Office by Stuart M. Israel, Asst. Appellate Defender, Detroit, Martin D. Kriegel, Research Asst., for defendant-appellant.

Before the Entire Bench, except FITZGERALD, J.

T. M. KAVANAGH, Chief Justice.

This case is before us on leave granted from a decision of the Court of Appeals, 46 Mich.App. 156, 207 N.W.2d 463 (1973) affirming defendant's jury conviction of manslaughter.

Defendant was involved in a barroom brawl, and one of the parties to the altercation died as a result of injuries received in the fracas. He was tried for second-degree murder and convicted of manslaughter. His defense was two-pronged: (1) that his actions were lacking the necessary element of malice to support a murder conviction and (2) that he personally did not inflict the fatal blow to the deceased.

Defendant raises four issues on appeal, three of which go to the cross-examination of him by the prosecutor during the trial.

ISSUES 1 and 2

Defendant argues that it was reversible error for the prosecutor during cross-examination to inquire into the unsubstantiated details of defendant's prior municipal ordinance convictions and to repeatedly question the defendant regarding these details after the defendant repeatedly denied them.

During direct examination, defendant testified that he previously had been convicted of a few drunk charges and one drunk and disorderly charge.

On cross-examination the prosecutor, through his questioning, repeatedly tried to show that the drunk and disorderly charge defendant pled guilty to involved a fight defendant had with his wife in which he beat her up. Defendant denied this repeatedly and moved for a mistrial on the grounds that such conduct by the prosecutor deprived defendant of a fair trial and was improper.

In response to the defendant's motion for a mistrial, the prosecutor argued that such evidence, i.e., that defendant was arrested and charged with beating his wife and then pled guilty to drunk and disorderly, was admissible evidence under the provisions of M.C.L.A. § 768.27; M.S.A. § 28.1050. This statute provides:

'Sec. 27. In any criminal case where the defendant's motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.'

The trial judge did not rule on this motion but instead instructed the jury that these convictions could be assessed by the jury in evaluating the defendant's credibility. Ruling that they were proper for impeachment In People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974), several members of this Court expressed their views regarding the appropriateness of allowing the impeachment of the defendant by use of his prior convictions. The nature of and the extent of any rule which this Court may devise in this area is still not settled. In this case, however, this Court is of the opinion that the convictions used by the prosecutor to impeach this defendant's credibility were used in violation of what historically has been our rule on impeachment by conviction.

purposes, the trial judge denied defendant's motion for a mistrial.

This state has two statutes bearing on the propriety of impeaching a witness by prior convictions. The first, M.C.L.A. § 600.2158; M.S.A. § 27A.2158 was originally enacted in 1861 as 1861 P.A. 125. It reads in part:

'No person shall be excluded from giving evidence on any matter, civil or criminal, by reason of crime or for any interest of such person * * *; but such interest, * * * or conviction of crime, may be shown for the purpose of drawing in question the credibility of such witness, * * *.'

In 1867 this Court spoke on impeachment by conviction in Wilbur v. Flood, 16 Mich. 40 (1867). There Justice Campbell states, p. 44:

'The rules of law do not allow specific acts of misconduct, or specific facts of a disgraceful character, to be proved against a witness by others. He may be proved by record evidence to have been Convicted of infamous crimes, but not to have done other infamous deeds, nor to have undergone personal disgrace.' (Emphasis added.)

In 1881, M.C.L.A. § 600.2159; M.S.A. § 27A.2159 was passed as 1881 P.A. 245. This statute reads in part:

'* * * No person shall be disqualified as a witness in any civil or criminal case or proceeding by reason of his interest in the event of the same as a party or otherwise or by reason of his having been convicted of any crime; but such interest or conviction may be shown for the purpose of affecting his credibility. * * *.'

In 1882, this Court, speaking through Justice Campbell, had reason to address themselves to the purposes of the above statutes. In People v. Hall, 48 Mich. 482, 489--490, 12 N.W. 665, 668 (1882) this Court stated:

'We think also that it would have been highly proper that the court should, when requested, have called the attention of the jury to Hickey's position as affecting his credit. Formerly he could not have been sworn at all. The statute did not abrogate entirely the effect of Conviction of an infamous crime on a witness, but still allows it to be shown as a distinct fact bearing on his credibility. Comp.Laws, § 5966.' (Emphasis added)

The original legislative purpose behind these statutes is obvious. They were passed to allow persons, historically disqualified at common law from testifying in a case, to testify. A compromise, however, was worked out whereby these disqualified persons could still have their credibility attacked by those prior convictions Which formerly had disqualified them from testifying.

Not all crimes at common law disqualified a witness. Only Infamous crimes disqualified a witness, and our statutes were originally intended only to allow impeachment by use of that type of criminal conviction. This distinction was pointed out in 1889 by this Court in People v. Hanrahan, 75 Mich. 611, 620--621, 42 N.W. 1124, 1127 (1889) when it stated:

'It rests in the sound discretion of the Legislature to determine to what extent 'What punishments are considered as infamous are pointed out by Mr. Justice Gray in Ex parte Wilson, 114 U.S. 417, 5 S.Ct. 935, 29 L.Ed. 89. * * *'

they will give to municipal courts authority to punish offenders. But whatever authority is delegated to municipalities to legislate upon the subject of offenses, and to prescribe within certain limits the punishment to be inflicted therefor, it is clear that the constitutional rights of the accused must be protected and preserved in everything that is done, as fully as if the prosecution was for a crime under the general laws of the state. In cases where, on account of the nature of the punishment which may be [392 MICH 54] inflicted, it is classed as Infamous, every constitutional safeguard must be preserved to the accused. He cannot be denied the right of trial by jury; to be informed of the nature of the accusation; to be confronted with the witnesses against him, etc. In short, the proceedings against him must be by due process of law.

Turning to Mr. Justice Gray's definition of an infamous crime in Wilson, supra, pp. 442, 423, we find:

'Mr. William Eden (afterward Lord Auckland) in his Principles of Penal Law, which passed through three editions in England and at least one in Ireland within six years before the declaration of independence, observed, 'There are two kinds of infamy; the one founded in the opinions of the people respecting the mode of punishment; the other in the construction of law respecting the future credibility of the delinquent.' Eden's Principles of Penal Law, ch. 7, § 5.

'At that time, it was already established law, that the infamy which disqualified a convict to be a witness depended upon the character of his crime, and not upon the nature of his punishment. Pendock v. McKinder, Willes, 665; Gilb. Ev. 143; 2 Hawk ch. 46, § 102; The King v. Priddle, 1 Leach (4th Ed.) 442. The disqualification to testify appears to have been limited to those adjudged guilty of treason, felony, forgery, and crimes injuriously affecting by falsehood and fraud the administration of justice, such as perjury, subornation of perjury, suppression of testimony by bribery, conspiring to accuse one of crime, or to procure the absence of a witness, and not to have been extended to cases of private cheats, such as the obtaining of goods by false pretences, or the uttering of counterfeit coin or forged securities. 1 Greenl. Ev. § 373; Utley v. Merrick, 11 Met 302; Fox v. Ohio (46 U.S. 410) 5 How. 410, 433, 434 (12 L.Ed. 213).

'But the object and the very terms of the provision in the fifth amendment show that incompetency to be a witness is not the only test of its application.'

Defendant in this case was impeached by the prosecutor's use of his prior municipal ordinance violations and convictions. As set forth in Hanrahan, supra, and Wilson, supra, these are not the type of crimes which historically would have disqualified a witness from testifying. Our legislature saw fit to pass these statutes and to confer upon the accused a right he previously did not have at common law, that of testifying on his own behalf. The legislature also saw fit to limit this right, permitting the defendant's credibility to be attacked...