*1 220 DAVIS
PEOPLE op Opinion the Court 1. Criminal Law —Evidence—Prior Convictions —Defendant Witness —Moot Issue. convictions, prior felony in the of a defendаnt’s stand, was a moot issue where the event he took the witness before the ruled defendant elected not issue. Jury 2. Criminal Law —Instructions —Alibi Dеfense —Reversi- ble Error. It is an defense as reversible error instructing disprove tried hard to 2, however, instructing 1974; an disprove easily proven and alibi defense is hard to is not the case was tried in October of 1973. reversible where M. 3. Criminal Law —Evidence—Prior Convictions —Defendant Witness —Discretion. defendant, judge, upon request decide of a
Failure of a trial any discretion to exclude referenсe whether to exercise his in the event he testiñes the defendant’s conviction Detroit, Donald Court of Recorder’s Appеal from April Leonard, Submitted Division S. 19372.) (Docket May Decided No. Detroit. 1975. armed rob- convicted of B. Davis was
Clifford appeals. bery.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Cahalan, L. General, William Solicitor Boyle, Principal Patricia J. Prosecuting Attorney, [1, [2] 3] 21 Am Jur 21 Am Jur 2d, References 2d, Criminаl Law § Criminal Law Points 137. § 585. Headnotes People v Davis Opinion of the Court Research, Attorney, Training and Appeals, Thomas Khalil', Assistant Prоsecuting Attor- ney, for people.
J. C, Hughes, Russell P. for defendant. Gillis, J., Before: H. P. and Quinn and M. JJ. Gillis, J. H. P. J. On the morning January of 1973, two men the robbed Dobbs Clothes еstablish- in ment the of City Detroit moments after the opened store at 9 a.m. was Defendant arrested later, 22, 1973, more than three months оn April he greeted entered the store and the owner recognized who him immediately as one of the men who robbed store in Jаnuary. 24, 1973,
On October defendant was found guilty (MCLA aby of the crime of robbery armed 28.797) 750.529; MSA and sentenced to 15 to 25 in years prison.
On appeаl defendant several raises issues consideration, alleging lineup our the pretrial procedure suggestive, identification was unduly great weight contrary verdict was evidence, procedural of that various irregulari- trial, at ties occurred handling entire аrrest, pretrial of the effectively denied fair defendant a trial.
First, should note our pretrial lineup the record discloses was suggestive. not unduly
Next, request we consider defendant’s suppress court convictions event that he should decide to take the stаnd. Defendant contends that in ruling on this transcript motion. The reveals agreed with the of counsel as to misdemeanor and stated that he convictions would [May- R. rule on felony point. a later A lunch recess then immediately lunch, that, counsel announced client, long discussion with his client elected not to The issue of the of felony convictions thus became moot. also contends the triаl court’s
instruction is "easy defense alibi prove and hard to disprove” was erroneous. In v McCoy, 220 NW2d (1974), Court held that "[f]or publication tried after of this opinion, (1) will be deemed defense 'as and hard to dis- ”. McCoy prove’ was decided on 1974. Defendant’s trial was October of 1973. Thus, court’s instructions as of defend- ant’s trial date were not erroneous.
The final issue alleges which we will discuss the trial court advised the jury identity the sole issue of fact to be determined them. Our examination of the record discloses court did not jury. so instruct prosеcutor stated in his indicated that question the main identification, case was but the court very carefully instructed that each every element must be prosecution established all of elements constituting charge proved must be proved, not then the must find the defendant not guilty. allegations
The other have been considered and find no reversible Quinn, J., concurred. (dissenting).
R. M. Counsel for defend- court, аnt asked that in the event defend- People v Davis M.E. testifies, exclude reference to ant purposes impeachment. rеplied: bring "You law will want to some sustain your position on now and 2 I this between o’clock? will * * * glad going look it J am be over. not cross bridge until is going I see what approach ask the time and can bench.” (Emphasis supplied.) taken,
After a recess was discus- presеnce sion took place jury: outside the Honor, Counsel for Defendant: "Your I would like the quite prolonged record to reflect that my discussion with regarding possibility client was had of him testifying. duty obligation I advised him that he has no or whatsoever to and that his absence from the the cannot way stand in any be used as far as jury’s consideration of case is concerned. I stand, advised him that if he did take the that based on rules, prosecutor maybe the law ask able to any previous him about convictions. consultation, "After hе advises me it is his desire not to "Is that correct Mr. Davis? your "The Court: Is it desire not to
stand, Mr. Davis? I would to but I can’t where it "Defendant: like see gain anything. means to weighed options You and alter- have is desire and did so advise natives and attorney correct? did not wish take thе Well, I want "Defendant: don’t *4 but— get I didn’t better come the answer. You
up microphone. by here "Now, court that your attorney has indicated to the you discussed should he take the stand this matter of whether has or not. He testify own behalf App 220 R.M. you you that he has advised to the court indicates desire. Of cоurse if right testify you so do have a to you to cross to you test prior enable the witness, subjects do might th,e which relate to to credibility yourself, that sort matters of convictions and other your credibility as a determine to right not to take the have the you also stand and the court stand. If do not take the attorney so advised would instruct you the —and any inference from the not draw they should —that the stаnd. You were exercis- fact that ing failed to take right. a constitutional "Now, rights, under understanding these these circumstances, not to take the do desire your attorney said? supplied.) (Emphasis
"Defendant: Yes.”
The possibility
impeachment
prior
convic-
tions must
in detеrmining
be considered
whether
or not a
right
defendant will exercise his
his own defense. This is why counsel
requested that
the trial court exercise its discre-
tionary
to
authority
refuse to allow reference
prior
to a decision
whether
or not
defendant would
As the
Jackson,
People
Court stated in
v
(1974):