PEOPLE v DAVIS
Docket No. 19372
Michigan Court of Appeals
Decided May 28, 1975
61 Mich App 220
Appeal from Recorder‘s Court of Detroit, Donald S. Leonard, J. Submitted Division 1 April 17, 1975, at Detroit.
The admissibility of a defendant‘s prior felony conviсtions, in the event he took the witness stand, was a moot issue where the defendant elected not to testify before the judge ruled on the issuе.
2. CRIMINAL LAW—INSTRUCTIONS TO JURY—ALIBI DEFENSE—REVERSIBLE ERROR.
It is reversible error to denigrate an alibi defense as easily proven and hard to disprove when instructing the jury in cases tried after August 2, 1974; however, instructing the jury that an alibi defense is easily proven and hard to disprove is not reversible error where the case was tried in October of 1973.
Dissent by R. M. Maher, J.
3. CRIMINAL LAW—EVIDENCE—PRIOR CONVICTIONS—DEFENDANT AS WITNESS—DISCRETION.
Failure of a trial judge, upon request of a defendant, to decide whether to exercise his discretion to exclude any refеrence to the defendant‘s prior conviction record in the event he testifies is reversible error.
Clifford B. Davis was convicted of аrmed robbery. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and Thomas M. Khalil, Assistant Prosecuting Attorney, for the pеople.
J. Russell Hughes, P. C., for defendant.
Before: J. H. GILLIS, P. J., and QUINN and R. M. MAHER, JJ.
OPINION OF THE COURT
On October 24, 1973, defendant was found guilty by a jury of the crime of armed robbery (
On apрeal defendant raises several issues for our consideration, alleging that the pretrial lineup identification procedure wаs unduly suggestive, that the verdict was contrary to the great weight of the evidence, that various procedural irregularities occurred аt trial, and that the entire handling of the arrest, pretrial and trial effectively denied defendant a fair trial.
First, we should note that our examination of the record discloses that the pretrial lineup was not unduly suggestive.
Next, we consider defendant‘s request that the court supprеss his prior convictions in the event that he should decide to take the witness stand. Defendant contends that the court erred in ruling on this motion. The transcript reveals that the court agreed with the argument of counsel as to misdemeanor convictions and stated that he would
Defendant also contends that the trial court‘s instruction that the defense of alibi is “easy to prove and hard to disprove” was errоneous. In People v McCoy, 392 Mich 231, 240; 220 NW2d 456, 460 (1974), the Supreme Court held that “[f]or cases tried after the publication of this opinion, it will be deemed reversible error (1) to denigrate the alibi defense ‘as easily proven and hard to disprove’ “. McCoy was decided on August 2, 1974. Defendant‘s trial was in October of 1973. Thus, the trial court‘s instructions as of defendant‘s trial date were not erroneous.
The final issue which we will discuss alleges that the trial court advised the jury that identity was the sole issue of fact to be determined by them. Our examination of the record discloses that the court did not so instruct the jury.
The court statеd that the prosecutor in his argument indicated that the main question in this case was the identification, but the court very carefully instructed the jury that each and every element must be established by the prosecution and that all of the elements constituting the charge must be proved and if not proved, then the jury must find the defendant not guilty.
The other allegations have been considered and we find no reversible error.
Affirmed.
QUINN, J., concurred.
PEOPLE v DAVIS
Docket No. 19372
Michigan Court of Appeals
Decided May 28, 1975
61 Mich App 220
“You want to bring some law * * * that will sustain your position on this between now and 2 o‘clock? I will be glad to look it over. * * * I am not going to cross that bridge until I see what the prosecutor is going to ask at the time and you can approaсh the bench.” (Emphasis supplied.)
After a recess was taken, the following discussion took place outside the presence of the jury:
Counsel for Defendant: “Your Honor, I would like the record to reflect that quite a prolonged discussion with my client was had regarding the possibility of him testifying. I advised him that he has no obligation or duty whatsoever to testify and that his absence from the witness stand cannot be used in any way as far as the jury‘s consideration of the case is concerned. I advised him that if he did take the stand, that based on the law and court rules, the prosecutor may be able to ask him about any previous convictions.
“After consultation, he аdvises me it is his desire not to testify.
“Is that correct Mr. Davis?
”The Court: Is it your desire not to testify on the stand, Mr. Davis?
”Defendant: I would like to but I can‘t see where it means to gain anything.
”The Court: You have weighed the options and alternatives and it is your desire and you did so advise your attorney that you did not wish to take the stand, is that correct?
”Defendant: Well, I don‘t want to take the stand but—
”The Court: I didn‘t get the answer. You better come up herе by the microphone.
“Now, your attorney has indicated to the court that he has discussed this matter of whether you should take the stand and testify in your own behalf or not. He
indicates to the court that he has advised you that you do have a right to testify if you so desire. Of course if you dо testify it subjects you to cross examination to test the credibility of yourself, which might relate to prior convictions and other matters of that sort to enable the jury to determine your credibility as a witness, and you also have the right not to take the stand. If you do not take the stand and testify the court would instruct the jury—and your attorney so advised you—that they should not draw any inference from the fact that you failed to takе the stand. You were exercising a constitutional right. “Now, understanding these rights, and under these circumstances, do you desire not to take the stand, as your attorney said?
”Defendant: Yes.” (Emphasis supplied.)
The possibility of impeachment by prior convictions must be considered in determining whether or not a defendant will еxercise his right to take the stand in his own defense. This is why counsel requested that the trial court exercise its discretionary authority to refuse to allow reference to defendant‘s record prior to a decision as to whether or not defendant would testify. As the Supreme Court stated in People v Jackson, 391 Mich 323, 336; 217 NW2d 22 (1974):
“[T]he trial judge shall, upon request, in the exercise of his discretion, decide whether to exclude any reference to [defеndant‘s] prior conviction record.”
The trial judge in this case, however, refused to “cross that bridge” until defendant had already taken the stаnd and the prosecutor had begun his cross-examination. It is for this reason that I respectfully dissent. The trial judge erred by failing to exercise his discretion when defendant moved to exclude reference to his record prior to his decision whether or not to take the stand. People v McCartney, 60 Mich App 620; 231 NW2d 472 (1975).