Opinion
Docket No. 77-3327.
Decided October 5, 1978.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor, General William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Frank J. Bernacki, Assistant Prosecuting Attorney, for the people.
Matthew R. Rumora, for defendant on appeal.
Before: N.J. KAUFMAN, P.J., and R.M. MAHER and D.C. RILEY, JJ.
On February 4, 1977, defendant was convicted by a jury of manslaughter, MCL 750.321; MSA 28.553, and sentenced to a prison term of 5 to 15 years.
He assigns as error four trial court rulings, of which the most significant pertains to an admission of a prior misdemeanor conviction for impeachment purposes. In his opening statement, defense counsel stated his client had "an unblemished record". On direct examination defendant testified that he had never been convicted of any offense, and on cross-examination he again denied any convictions. Subsequently, the prosecution produced a witness, officer Robert Black, who testified that defendant had previously been convicted of the misdemeanor of larceny under $100, MCL 750.356; MSA 28.588. Defendant argues that allowing the misdemeanor conviction into evidence directly contravenes People v Renno, 392 Mich. 45; 219 N.W.2d 422 (1974). Renno held that prior municipal ordinance or misdemeanor convictions are inadmissible at trial if intended solely for impeachment purposes. Defendant Renno, on direct examination, testified that he had previously been convicted of certain drunk and disorderly charges. On cross-examination the prosecutor repeatedly attempted to expose the underlying factual circumstances behind those charges. In construing two statutes bearing on the propriety of impeaching a witness by prior conviction, the Court declared that:
"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.
* * *
"Defendant in this case was impeached by the prosecutor's use of his prior municipal ordinance violations and convictions. As set forth in [People v] Hanrahan, supra, [ 75 Mich. 611, 620-621; 42 N.W. 1124 (1889)], and [Ex parte] Wilson, supra, [ 114 U.S. 417; 5 S Ct 935; 29 L Ed 89 (1885)] 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 in the discretion of the trial court by these prior disqualifying convictions. These statutes were passed to give rights to an accused defendant, not to take rights away from him. Allowing the use of municipal ordinance convictions for impeachment purposes does just that — it takes away rights the accused formerly had at common law." (Emphasis in original.) Renno, supra, at 53, 55.
Thus, it is apparent from the above excerpt that the Renno Court was concerned primarily with the general "bad character" of the witness as it pertained to his ability to testify before a jury in a credible manner. The witness was allowed to take the stand, but, at the same time, the jury was permitted to evaluate his communicative reliability through the admission of crimes serious enough (i.e., infamous crimes) to warrant certain inferences as to his overall character.
We deal here with a dissimilar situation, namely, the correction of false and perjured testimony. The misdemeanor conviction was not offered for the purpose mentioned in Renno, but rather to negate defendant's express contention on direct examination that he was never before convicted.
Although no Michigan cases deal with this exact issue, reference to other analogous decisions is instructive. In People v Bouchee, 62 Mich. App. 132; 233 N.W.2d 503 (1975), rev'd on other grounds, 400 Mich. 253; 253 N.W.2d 626 (1977), defense counsel in his opening statement vouched for the defendant's nonexistent criminal record; defendant further testified as much on direct examination, whereupon the prosecution introduced evidence of a prior military conviction which was defective for lack of counsel. See Loper v Beto, 405 U.S. 473, 480; 92 S Ct 1014; 31 L Ed 2d 374 (1972). The Bouchee Court determined that reference to the prior conviction was not permitted for the general purpose of denigrating defendant's character, but rather was admissible for the special and narrow purpose of demonstrating that defendant had given false testimony on direct examination.
"We believe that the record reflects that the defendant offered false testimony and that the prosecutor was allowed to show that defendant misrepresented his record in an attempt to mislead the jury. The defendant's testimony opened the door to rebuttal testimony, or what McCormick calls `fighting fire with fire'. McCormick, Evidence (2d ed), § 57, pp 131, 132." Bouchee, supra, at 136.
See People v Jackson, 77 Mich. App. 392; 258 N.W.2d 89 (1977), People v Eroh, 47 Mich. App. 669; 209 N.W.2d 832 (1973). Cf., People v Bobo, 390 Mich. 355; 212 N.W.2d 190 (1973).
While Bouchee did not reach the question of prior misdemeanor convictions, its reasoning touches the present case. For the trial court to have excluded the prior larceny conviction would allow the defendant to hide behind the purportedly expansive shield of Renno, thereby granting him free license to commit perjury and mislead the jury. This we cannot sanction, nor do we feel the Renno Court intended such a dubious result.
The United States Supreme Court in Harris v New York, 401 U.S. 222, 225-226; 91 S Ct 643; 28 L Ed 2d 1 (1971), addressed an analogous issue concerning the use for impeachment of an otherwise inadmissible confession which violated Miranda v Arizona:
384 U.S. 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).
"Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. * * * Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. * * *
"The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner's credibility was appropriately impeached by use of his earlier conflicting statements." (Citations omitted.)
Our Supreme Court in People v Graham, 386 Mich. 452; 192 N.W.2d 255 (1971), adopted the Harris rationale in affirming a conviction where the defendant had been impeached by evidence of his prior silence during a police interrogation. At trial he testified on direct examination that he repeatedly tried to inform the police what had happened. The Court cautioned, however, that the "defendant's refusal to speak during interrogation is admissible only to impeach his own inconsistent statements at trial". Graham, supra at 458.
These decisions illustrate that when a defendant seeks to controvert the truth-seeking functions of a criminal trial, the introduction of otherwise inadmissible evidence is permissible to contradict his false testimony. Accordingly, we hold that since the introduction of the prior misdemeanor conviction in the present case was not used to show the defendant's bad character, but was rather used specifically to negate his fraudulent testimony, and the jury was so instructed, its introduction was not reversible error.
The remaining issues on appeal may be disposed of more readily. First, the prosecution in rebuttal introduced a prior written statement of the defendant contrary to his previous in-court testimony. Defendant argues that no proper foundation was laid for its introduction.
People v Dozier, 22 Mich. App. 528, 531-532; 177 N.W.2d 694 (1970), enunciated the following guidelines:
"`To satisfy the requirement the cross-examiner will ask the witness whether he made the alleged statement, giving its substance, and naming the time, the place and the person to whom made. The purpose of this particularity is, of course, to refresh the memory of the witness as to the supposed statement by reminding him of the accompanying circumstances.
"`If the witness denies the making of the statement, or fails to admit it, but says "I don't know" or "I don't remember" then the requirement of "laying the foundation" is satisfied and the cross-examiner, at his next stage of giving evidence, may prove the making of the alleged statement.' McCormick, Handbook of the Law of Evidence (1954), § 37, p 68."
Further, when impeaching by a witness's prior inconsistent statement, the witness must be shown the document. People v Martin, 75 Mich. App. 6, 16; 254 N.W.2d 628 (1977). A perusal of the record convinces us these requirements were complied with in the instant case. Whether the defendant fully denied or failed to admit the statement is the subject of equivocal and contradictory testimony. The trial court determined the thrust of the defendant's testimony was that the entire statement was either untrue or that he did not recall having made the statement. Since we cannot say we might have reached a different result there is no showing of an abuse of discretion.
Defendant also asserts the trial court's instruction on self-defense was improper. Counsel did not object at trial to the self-defense charge, therefore, absent a miscarriage of justice, reversal is not warranted. MCL 769.26; MSA 28.1096, GCR 1963, 516.2, People v Trammell, 70 Mich. App. 351; 247 N.W.2d 311 (1976), People v Spaulding, 42 Mich. App. 492; 202 N.W.2d 450 (1972). We cannot say that manifest injustice occurred. Although irregular in part, the instruction fairly informed the jury as to the applicable law on self-defense.
Finally, defendant argues the trial court erred in failing to grant a motion for mistrial after the prosecutor had requested, in the presence of the jury, that the defendant be fingerprinted. Not every irregularity in a trial justifies the granting of a mistrial or new trial but only where it is clearly established that the error resulted in prejudice sufficient to deprive the defendant of a fair and impartial trial. People v Nick, 360 Mich. 219; 103 N.W.2d 435 (1960), People v Watson, 307 Mich. 596; 12 N.W.2d 476 (1943), cert den, 323 U.S. 749; 65 S Ct 81; 89 L Ed 600 (1944). No actual showing of prejudice was made here. The lower court's instructions that the prosecution's testimony was not evidence and that any reference to fingerprinting should be disregarded served further to eliminate any possible bias. People v Boxx, 16 Mich. App. 724; 168 N.W.2d 628 (1969).
Affirmed.
R.M. MAHER, J., concurred.
I concur separately for the simple reason that I cannot find anything wrong with the well-written opinion of Judge RILEY.
My difficulty is that I do not know why defense counsel stated that defendant had an unblemished record. If I were to guess I would say he did it because he knew of People v Renno, 392 Mich. 45; 219 N.W.2d 422 (1974), and knew that if his client took the witness stand he could not be questioned in regard to misdemeanor or ordinance violations.
I also do not know why the defendant answered the prosecutor's question as to previous convictions by stating that he had never been convicted of any offense. It could have been for two reasons: (1) that he heard his counsel say he had an unblemished record and (2) that his counsel had already told him he could not be questioned as to misdemeanor and/or ordinance convictions.
Nevertheless, it was perjury. Therefore, I affirm.