People v. Sanders

• Decision Date: 27 November 1972
• Docket Number: No. 2,Docket No. 12581,2
• Citation: 204 N.W.2d 706,43 Mich.App. 698
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul SANDERS, a/k/a Paul Saunders, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 706

204 N.W.2d 706

43 Mich.App. 698

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul SANDERS, a/k/a Paul Saunders, Defendant-Appellant.

Docket No. 12581.

Court of Appeals of Michigan, Division No. 2.

Nov. 27, 1972.

Rehearing Denied Jan. 15, 1973.

Released for Publication March 9, 1973.

Jerome A. Susskind, Domke, Marcoux, Allen & Beaman, Jackson, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Bruce A. Barton, Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and BRONSON and TARGONSKI, ^* JJ.

TARGONSKI, Judge.

On the evening of August 22, 1970, defendant and the deceased, Nathaniel Douglas, were in a bar in Jackson. The defendant and the deceased got into an argument over a loan. A fight ensued. The force of the defendant's blows made the deceased back up through a pair of swinging doors. At this time the defendant allegedly pulled a gun and shot the deceased, fatally injuring him.

At the trial four witnesses, who were present at the bar at the time of the shooting, testified that the defendant shot the decedent as he was backing up. The defendant testified that he killed the decedent unintentionally and was acting in self defense.

The defendant was convicted by a jury of second degree murder, a violation of M.C.L.A. § 750.317; M.S.A. § 28.549. Defendant was sentenced by the court to serve from fifteen to twenty-five years imprisonment.

A review of the record discloses an error which was not raised on appeal. However, since this error requires reversal, it is within the power of this Court to consider this issue and to avoid a miscarriage of justice. People v. Brocato, 17 Mich.App. 277, 169 N.W.2d 483 (1969); People v Mattice, 38 Mich.App. 333, 196 N.W.2d 345 (1972).

During the trial, the prosecutor, while questioning the defendant, asked him if he had been arrested for a robbery in Trenton, New Jersey. Even after the defendant had denied this, the prosecutor pursued this line of questioning by asking him if he wanted to reconsider the answer. Also, in the course of questioning the defendant with reference to misdemeanor violations the prosecutor managed to work into the record the matter of an incident in Jersey City wherein it appears the defendant was arrested as a disorderly person but was not convicted, according to the testimony.

This Court stated in People v. Brocato, Supra, 17 Mich.App. 302--303, 169 N.W.2d 495--496:

'We now hold that a defendant testifying at his own trial may not be asked if he has been arrested or charged with crime, where the arrest or charge has not resulted in a conviction and where the only purpose of the questions is to impeach the defendant's credibility as a witness. Where credibility is the only issue, the probative value of arrests and charges, unsubstantiated by a conviction, is slight at best. When weighed against the great danger that the jury, despite careful instructions, might misapply such evidence, the scales of justice tip in favor of exclusion, United States v. Beno, 324 F.2d 582 (C.A. 2, 1963).'

The holding of this Court in Brocato is applicable to the present case. The sole issue here for the jury to decide was which witnesses were to be believed. It was a matter of the credibility of the witnesses which is the essence of the holding in Brocato, supra. Furthermore, in the instant case, the apparent purpose of the prosecutor's questioning was obviously to impeach the defendant's credibility.

The facts here are distinguishable from those present in People v. Osgood, 24 Mich.App. 705, 180 N.W.2d 640 (1970). In Osgood the prosecutor asked the defendant if he had been convicted. In the present case the defendant was specifically asked if he had been arrested. Even when the answer was in the negative the prosecutor continued to pursue the area of arrest only.

People v. Peay, 37 Mich.App. 414, 195 N.W.2d 75 (1971), is also distinguishable from the present case. There the trial court allowed the prosecution to question the defendant concerning a prior arrest but it was shown on appeal that this was due to an inadvertent error. Further, the prosecutor in that case immediately ceased to question the defendant after he had denied ever being arrested for the particular crime.

In this case the prosecutor, by the innuendo of the language he employed, did not cease this line of attack. As a result I believe a manifest injustice resulted, necessitating reversal.

Further, under the facts of this case, admission of proof of conviction on a charge of disorderly person on the issue of defendant's credibility in a first-degree murder case created a situation where the danger of prejudice exceeded the probative value of this line of inquiry. Hence I conclude that the admission of proof of this misdemeanor conviction must be considered error for the reasons and on the basis of the authorities cited by Judge Bronson in his opinion.

Reversed and remanded for new trial.

BRONSON, Judge (concurring in the result).

A review of the record leads me to the conclusion that the prosecutor's simple reference to an arrest not resulting in a conviction did not constitute reversible error. However, the prosecutor's use of a misdemeanor conviction for impeachment purposes causes me grave concern. This important issue has received too little attention by the courts of this state. The admission of a misdemeanor conviction for being a disorderly person in a murder trial to test the defendant's credibility reveals to this writer a clear case where the prejudicial effect of evidence outweighs its relevancy. I, therefore, concur in the result, but for a different reason.

It is significant that the error based upon People v. Brocato, 17 Mich.App. 277, 169 N.W.2d 483 (1969), was not raised by defendant. This failure to preserve the issue for appeal precludes reversal unless preserved by the Court Sua sponte to prevent a miscarriage of justice. People v. Degraffenreid, 19 Mich.App. 702, 173 N.W.2d 317 (1969). Dependency upon this concept requires a search of the record to substantiate an injustice before a reversal is appropriate and must be distinguished from errors which themselves constitute reversible error. ¹

The prosecutor's attempt to impeach the defendant's credibility involved a series of questions regarding his prior criminal record. Each of these questions preceding the impermissible reference to an arrest were prefaced by the phrase '(have you) ever been Arrested and convicted'. (Emphasis added.) This format clearly satisfies Brocato and its progeny. The prosecutor then asked defendant whether he had ever been arrested for robbery in Trenton, New Jersey. This single impermissible question regarding an arrest not culminating in a conviction was not further pursued after it was answered in the negative. Subsequently, the prosecutor questioned the defendant in a conclusionary manner as to whether his only Arrest and conviction was limited to the unarmed robbery elicited during earlier testimony. With an affirmative answer the prosecutor terminated his questions regarding prior crimes and concluded his cross-examination by a single question asking defendant whether he wanted to reconsider his answer.

In this context, no scheme, design, or concerted effort by the prosecutor to place undue emphasis upon this arrest or prejudice defendant by its injection in the case is revealed. ² The prosecutor's single improper reference must be viewed as an inadvertent error similar to that found in People v. Peay, 37 Mich.App. 414, 195 N.W.2d 75 (1971). Therein the prosecutor's references to arrests based upon an incorrect 'rap sheet' were viewed as an inadvertent error. As in the present case, the defendant in Peay raised no objection. The Court's conclusion in Peay that defendant was not prejudiced by the prosecutor's error is equally applicable to the present case. The error below was further mitigated by the trial judge's charge to the jury that they were to disregard any reference by the prosecutor to crimes for which the defendant denied conviction or the prosecutor had no proof of conviction. This error, permitted without objection, fails to offend one's sense of justice and a consideration of the entire record fails to disclose a miscarriage of justice. ³

The prosecutor's use of a misdemeanor conviction ⁴ for purposes of impeachment was objected to by defendant and presents the crucial issue in the present appeal. The impetus for impeaching witnesses and defendants via prior convictions flows from statutory sanction. M.C.L.A. § 600.2158; M.S.A. § 27A.5158. The permissible scope of such impeachment is not defined in the statute since it merely provides:

'(The) Conviction of crime, may be shown for the purpose of drawing in question the credibility of such witness * * *.' ⁵ (Emphasis added.)

The failure of the statute to further define the types of crimes admissible for purposes of testing a witness' credibility leaves a void to be filled in by statutory interpretation.

The proper construction of this statute must take cognizance of the fact that the statute is to be strictly construed ⁶ and the admissibility of convictions like all other evidence depends upon a test which balances its relevancy and prejudicial effect. A construction permitting the admissibility of All crimes as a matter of law ⁷ would effectively undermine the purpose of these concepts. This construction is further barred by the permissive nature of the statute as recently recognized by this Court in People v. Farrar, 36 Mich.App. 294, 193 N.W.2d 363 (1971). The Farrar Court based its conclusion upon the construction of a similar statute found in Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965). ⁸ Since the statute states that a conviction 'may' as opposed to 'shall' be admitted, the Luck Court held that the admissibility of such convictions fell within the trial judge's discretion. This approach preserves the evidentiary...