People v. Slager

• Decision Date: 21 April 1981
• Docket Number: Docket No. 48688
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Boyd William SLAGER, Defendant-Appellant. 105 Mich.App. 593, 307 N.W.2d 376
• Court: Court of Appeal of Michigan — District of US

Page 376

307 N.W.2d 376

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Boyd William SLAGER, Defendant-Appellant.

Docket No. 48688.

105 Mich.App. 593, 307 N.W.2d 376

Court of Appeals of Michigan.

April 21, 1981.

Released for Publication July 2, 1981.

[105 MICHAPP 595] Martin C. Basch, Kalamazoo, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James J. Gregart, Pros. Atty., Michael H. Dzialowski, Asst. Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P. J., and ALLEN and WALSH, JJ.

ALLEN, Judge.

On November 15, 1978, defendant was convicted by a jury of felonious assault in violation of M.C.L. § 750.82; M.S.A. § 28.277. Immediately after the jury's verdict, defendant entered a plea of guilty to the supplemental information charging him as a second offender. Defendant was sentenced on January 8, 1979, to serve three months total confinement, three months in a work release program, and, thereafter, four and one-half years probation. Defendant appeals as of right.

Defendant's first claim of error is that the trial court improperly allowed the use of his prior conviction for impeachment purposes. As a preliminary matter, MRE 609(b) prohibits the use of prior convictions "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[105 MICHAPP 596] imposed for that conviction, whichever is the later date". (Emphasis supplied.) It is undisputed that defendant was released from imprisonment from his prior conviction in 1973. Therefore, no time limit problem exists with the use of this conviction. Although defendant maintains that the trial court abused its discretion in allowing evidence of the prior conviction, a review of the lower court record clearly indicates that the trial court weighed the probative value against the prejudicial effect upon the defendant and determined that the probative value exceeded the prejudicial effect. The trial court correctly indicated on the record that the similarity of the prior conviction (second-degree murder) increased its prejudicial effect and weighed against admission. Equally correct, the trial court indicated that the prior conviction was probative of defendant's credibility. The trial court exercised its discretion and determined that the probative value exceeded the prejudicial effect. We cannot say that the trial court clearly abused its discretion in so doing.

We take this opportunity to address defendant's suggestion that the prosecution be limited to the single question (Have you ever been convicted of a felony?) when using prior convictions for impeachment purposes. Defendant cites the case of People v. Hollis, 96 Mich.App. 333, 292 N.W.2d 538 (1980), in support of his position. ¹ Hollis, p. 340, fn. 12, 292 N.W.2d 538 does indeed suggest this as a viable alternative. See also People v. Moseley, 94 Mich.App. 461, 464, 290 N.W.2d 39 (1979). However, we believe that Hollis and Moseley are incorrect in this regard. Michigan [105 MICHAPP 597] case law is clear in holding that it is error to impeach with evidence of an unspecified felony. People v. Dixon, 99 Mich.App. 847, 298 N.W.2d 647 (1980), People v. Graves, 98 Mich.App. 112, 117, 296 N.W.2d 4 (1980), People v. Vincent, 94 Mich.App. 626, 633-634, 288 N.W.2d 670 (1980), People v. Garth, 93 Mich.App. 308, 315-316, 287 N.W.2d 216 (1979), People v. Jones, 92 Mich.App. 100, 113, 284 N.W.2d 501 (1979).

Defendant's second claim of error is that the trial court erred in refusing to instruct on the lesser included offenses of assault and battery and malicious destruction of property under $100. However, both assault and battery and malicious destruction of property under $100, M.C.L. § 750.81; M.S.A. § 28.276 and M.C.L. § 750.377a; M.S.A. § 28.609(1) respectively, are misdemeanors with maximum imprisonment of 90 days, M.C.L. § 750.504; M.S.A. § 28.772. As such, the trial court properly refused to instruct on either following the Supreme Court mandate of People v. Chamblis, 395 Mich. 408, 429, 236 N.W.2d 473 (1975), which stated:

"We are establishing a rule today, as a matter of policy, limiting the extent of compromise allowable to a jury in deciding whether to convict of a lesser included offense. In any case wherein the charged offense is punishable by incarceration for more than two years, the court, whether or not requested, may not instruct on lesser included offenses for which the maximum allowable incarceration period is one year or less."

Defendant's citation to People v. Miller, 406 Mich. 244, 277 N.W.2d 630 (1979), is inappropriate. The sole exception to Chamblis created by Miller is restricted to allowing a trial court to instruct the jury on a lesser included misdemeanor offense of receiving and concealing property with a value [105 MICHAPP 598] of $100 or less if the value of the property involved is the only element which separates the misdemeanor from the felony charged. Miller, supra, 251, 271 N.W.2d 630. Furthermore, the Miller opinion was held to be effective only for trials commencing after May 31, 1979. Miller, supra, 251, 277 N.W.2d 630.

Defendant next argues that, although he did not request the trial court to instruct the jury that felonious assault was a specific intent crime and although he did not object to the instructions as given, reversal is mandated by the retroactive application of People v. Joeseype Johnson, 407 Mich. 196, 284 N.W.2d 718 (1979), which held that felonious assault is a specific intent crime. The crucial question is whether Joeseype Johnson clarifies existing law and consequently is retroactive in application ² or whether the holding is only prospective under the principles announced in People v. Hampton, 384 Mich. 669, 187 N.W.2d 404 (1971). Different panels of this Court have reached different results. In People v. Starghill, 99 Mich.App. 790, 792, 298 N.W.2d 641 (1980), this Court held:

"However, Joeseype Johnson was decided on October 29, 1979, after defendant's conviction. We decline to apply it retroactively in these circumstances. See People v. Hampton, 384 Mich. 669, 187 N.W.2d 404 (1971). Therefore, we review the trial court's decision under prior law."

On the other hand, when faced with the identical issue, a different panel of this Court concluded in People v. Szymanski, 102 Mich.App. 745, 747, 302 N.W.2d 316 (1981):

"We agree that Joeseype Johnson constitutes a restatement[105 MICHAPP 599] and clarification of previously existing Michigan case law and is therefore fully applicable to the instant case. No problem of limiting the application of a new rule of law arises under such circumstances."

In both Starghill and Szymanski the issue of specific intent had been raised in the trial court. In People v. Ideis, 101 Mich.App. 179, 300 N.W.2d 489 (1980), and People v. Braddock, 106 Mich.App. 11, 307 N.W.2d 341 (1980), the issue of specific intent was not raised in the trial court. The Ideis majority opinion concluded that this Court is not precluded from considering the claim of error on appeal and found that Joeseype Johnson did not announce a new rule but merely clarified existing law and was entitled to retroactive effect. Judge Bashara dissented, relying on Starghill, supra, for holding that Joeseype Johnson should not be applied retroactively.

In People v. Braddock, supra, a unanimous panel considered both the Starghill and Szymanski decisions and held that:

"We are persuaded that the better logic is expressed in Starghill. Our conclusion is reinforced by the fact that, in the instant case, no exception was taken at trial to the court's failure to instruct the jury that felonious assault was a specific intent crime. Under such circumstances, it is not necessary to decide whether Joeseype Johnson should be given retroactive application." Braddock, supra.

We believe the Braddock decision is correct and adopt its conclusion as our own.

Defendant attempts to raise the issue of insufficiency of the evidence on appeal. While we find the evidence sufficient to support the jury verdict, we need not reach this decision. Defendant has not cited any authority in support of this claim of [105 MICHAPP 600] error. "A party 'may not leave it to this Court "to search for authority" to sustain or...