People v. Van Dorsten

• Decision Date: 22 August 1979
• Docket Number: Docket No. 77-1930
• Citation: 96 Mich.App. 356,292 N.W.2d 134
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles H. Van DORSTEN, III, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 134

292 N.W.2d 134

96 Mich.App. 356

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles H. Van DORSTEN, III, Defendant-Appellant.

Docket No. 77-1930.

Court of Appeals of Michigan.

Aug. 22, 1979.

Released for Publication May 28, 1980.

James R. Neuhard, State App. Defender, Steven R. Whalen, Asst. Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James D. Norlander, Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P. J., and R. B. BURNS and KELLY, JJ.

PER CURIAM.

Defendant appeals as of right his November 4, 1976, jury conviction for delivery of heroin, contrary to M.C.L. § 335.341(1)(a); M.S.A. § 18.1070(41)(1) (a), and his January 6, 1977, jury conviction as a second felony offender, contrary to M.C.L. § 769.10; M.S.A. § 28.1082. He was sentenced on February 4, 1977, to a prison term of not less than 15 years nor more than 30 years. On this date he also moved for a new trial based upon new evidence, but this motion was denied. Defendant now appeals as of right raising numerous issues.

Defendant's primary contention on appeal was that the trial judge abused his discretion in ruling that evidence of his prior convictions for forgery and indecent liberties would be admissible for impeachment purposes if defendant chose to testify. A review of the record indicates that the trial judge listened to the arguments of both counsel prior to his ruling on this motion. He then determined that evidence of both convictions would be admissible for impeachment purposes, but would be admissible only as evidence of unnamed prior convictions so as to prevent prejudice, and would be the subject of a limiting instruction given to the jury. We are convinced the trial judge adequately recognized that the decision to allow impeachment by evidence of prior convictions was within his discretion, and that he did not abuse this discretion by ruling in favor of the admissibility of the evidence of the prior convictions. People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974); People v. Cherry, 393 Mich. 261, 224 N.W.2d 286 (1974); People v. Worden, 91 Mich.App. 666, 284 N.W.2d 159 (1979).

Defendant's second contention is that the trial court erred in not granting his motion for new trial. The grant of a new trial on the ground of newly discovered evidence is discretionary with the trial court. People v. Howard, 78 Mich.App. 592, 261 N.W.2d 15 (1977). In order for the defendant to be entitled to a new trial it must be shown that the evidence is newly discovered and not merely cumulative, that the party offering the new evidence could not have discovered and produced it at trial with reasonable diligence, and that its use would probably render a different result on a retrial of the matter. People v. Barbara, 400 Mich. 352, 362, 255 N.W.2d 171 (1977). After the filing of the motion for a new trial the trial court held an evidentiary hearing in which it heard the testimony of George Worden, Michael Martin, Randall Duck, Charles Van Dorsten, John Ripple and Karen Van Dorsten. A review of the pertinent parts of their testimonies indicates that Mr. Worden testified that Mr. Ripple told him that he (Ripple) did not know defendant Van Dorsten but would lie about his involvement in the drug transaction. Mr. Martin testified that Ripple told him that he was going to lie about Van Dorsten's involvement in the drug transaction. He indicated that he had relayed this information to Van Dorsten in April of 1976. However, after a noon recess in which he had lunch with Van Dorsten, he modified his testimony to indicate that he had only told Van Dorsten that Ripple had sold his name in April of 1976 and that he had not informed Van Dorsten of the full details of his conversation with Ripple until January, 1977. Mr. Duck then testified that Ripple told him about the drug bust but had never mentioned Van Dorsten's name. Mr. Van Dorsten then took the stand and confirmed that Mr. Worden, Mr. Martin and Mr. Duck had informed him of their conversations with Mr. Ripple. Mr. Ripple then testified that he never told anyone, much less Mr. Worden, Mr. Martin and Mr. Duck, that he intended to testify falsely against Mr. Van Dorsten. He further testified that he had met Mr. Van Dorsten in January of 1975 in Detroit, four months before the drug transaction took place, and that he had once met Mrs. Van Dorsten at her home. Mrs. Van Dorsten then took the stand and testified that Mr. Van Dorsten was home the entire month of January, 1975 recuperating from a gunshot wound and that he had not, to the best of her knowledge, been in Detroit during that time. After hearing this testimony the trial judge denied defendant's motion for a new trial. In making this determination he found that while Mr. Martin's testimony would have been available to defendant prior to his trial with the exercise of reasonable diligence, neither the testimony of Mr. Worden nor Mr. Duck could have been produced. He also determined that their testimony would not be merely cumulative but ultimately concluded that had it been presented at trial it would not have been highly probable that a different result would have occurred. We agree with the trial court's determination. The only relevancy of this testimony concerned Mr. Ripple's credibility. His credibility had already been attacked by the introduction of evidence of his prior criminal convictions as well as an indication that he was testifying against Mr. Van Dorsten in order to fulfill a plea bargain which was advantageous to himself. Clearly Mr. Ripple's credibility had already been sufficiently impeached to alert the jury of the possibility that he might not be telling the truth in order to prevent further imposition of punishment upon himself. The additional testimony would not have significantly enhanced this prior impeachment, especially since the credibility of these witnesses was also subject to impeachment based upon their prior conviction records. For these reasons, it was not error for the trial court to deny defendant's motion for a new trial.

Defendant's remaining contentions of error are without merit and will be addressed only briefly. Defendant sought to have Mr. Ripple testify and name the individual who gave him defendant's phone number. The trial court held that this question was irrelevant...