*1 v HARRINGTON PEOPLE Opinion op the Court Adversary Offense — 1. Criminal Law —Informations—Prior Hearing —Second Offender —Sentence—Statutes. being charging a second nar- An information a defendant' quashed for reason that no cotic offender need not be charge been held on that because examination had adversary hearing legislative provision for an there is no regarding the second offender status can offense and (MCLA335.348; 18.1070[48]). sentencing challenged MSA Preliminary Separate Crimes— 2. Criminal Law — Examinations — Sentence —Statutes. charge right preliminary examination on a as a There is no to a separate does not create a second offender where a statute augments merely factor which the sentence crime but creates a (MCLA335.348; 18.1070[48]). of a crime Credibility 3. Witnesses —Criminal Law —Defendant as Witness — Appeal —Prior Sentences — and Error. testing credibility of a defendant to It is reversible error when prior prison as to the details of his cross-examine the defendant sentence. 4. Witnesses —Criminal Law —Examination—Cross-Examination— Admissibility—Impeach- Arrests and Convictions — Prior ment. resulting im- in convictions are not admissible to Arrests not however, any peach; a witness be cross-examined as to might in the of the trial and this interest he have outcome [3-5] [1] ' Impeachment Propriety, on 21 Am Jur tion or showing extent of 81 Am Jur Witnesses prosecution. 20 ALR2d 1421. former punishment. 67 ALR3d 775. 2d, References impeaching credibility of witness 2d, Criminal Law conviction, for Points evidence or §§ §§ 442, 446, questions relating 587-589. of witness in criminal case in Headnotes inquiry 530. as to to nature arrest, accusa- Opinion Court might questions encompass examination as to arrests not re- sulting in convictions. by Danhof, C. J. *2 5. Witnesses —Criminal Law —Defendant as Witness —Prior Con- Object. victions —Prior Sentences —Failure to or Rule ruling, A trial prosecutor court over defense that a inquire could a into defendant’s convictions and the total years error, spent prison number of he had in is but no error put question occurs where a defendant had in issue the parole whether the condition of his that he not associate with known criminals affected his conduct and the point, cross-examined the defendant on that where there was prior ruling no inquiry on into defendant’s sentence and where objections prosecutor’s no questions registered to the were defense counsel. Montcalm,
Appeal from Bebeau, B. Leo J. Sub- (Docket 4, 1977, mitted May at Lansing. No. 27335.) Decided June 1977. appeal Leave to denied, 401 Mich —. J.
Gregory Harrington was convicted of delivery of marijuana. appeals. Defendant Reversed and remanded.
Stiles, C, Dudley, Fowler & P. for defendant on appeal. J., B.
Before: C. and R. E. Burns and A. JJ. Quinnell,* Burns,
B.R. J. Defendant appeals jury his con- viction of delivery marijuana contrary to MCLA 18.1070(41)(l)(c). 335.341(l)(c); MSA argues Defendant first the trial court erred denying quash in his motion to the information. 767.42(1); MCLA MSA 28.982 provides part: "An against person information shall not be any filed * judge, sitting Appeals assignment. on Circuit the Court of App Opinion op the Court a person
for a has had felony until such examination therefor”. charged being information a 335.348;
second offender MCLA under MSA 18.1070(48), part: which provides "Any person subsequent of a second or convicted imprisoned offense up under this act for a term to twice the or term otherwise authorized fined an authorized, up amount to twice that otherwise or both.” Defendant prelimi- contends he was entitled to a nary examination to his second offender as status. McFadden,
In App 232; 73 Mich (1977), NW2d 297 we deduced from the absence of procedural a 335.348; framework in MCLA 18.1070(48) legislative a intent not provide an *3 offense, adversary hearing regarding and observed that the second offender status could be challenged sentencing. The statute is therefore analogous act, to the habitual offender MCLA seq.; et MSA 28.1082 et 769.10 seq., in that it does crime, not separate create a but merely creates a factor which augments the sentence of a crime. See, e.g., Hendrick, People v 410, 398 Mich 416- (1976). 417; 840, 247 NW2d 842 Since the statute crime, does not create a there is no right to a 767.42(1); examination thereon. MCLA People 28.982; Judge v of Recorder’s see Court, 626, (1930). 627; 402, 251 Mich 232 NW 403 It was therefore not error for the trial court deny defendant’s motion to quash.
A police informant testified that defendant sold him marijuana. sale was overheard and veri- police sale, fied a officer. Defendant denied the by way explanation and stated on direct exami- that nation he knew the informant previously People v 121 arrested, been and therefore avoided him because he, defendant, parole. was on On cross-examina- tion, elicited the terms of defend- parole. ant’s It is reversible error to cross-examine a defendant as to the details of his prior prison People v sentence to Rappuhn, 390 test credibility. 266, 205, Mich 273-274; 209; 212 NW2d 67 ALR3d (1973). 766, 772 We must reverse.
We address
may
one other
issue which
recur on
retrial. On cross-examination
of the informant,
sought
to elicit
the circumstances
sur-
rounding prior arrests of the informant which did
convictions,
not result
in
apparently
to establish
the informant
had made a deal with the
police, might
subject
still be
to prosecution,
hence had an
interest
the outcome of the case.
Arrests not resulting in convictions are not admis-
Falkner,
sible to impeach.
People
v
682,
389 Mich
(1973).
695;
193,
209
However,
NW2d
199
a witness
cross-examined as to any
might
interest he
have
trial,
outcome of the
which might
encompass questions as to arrests not resulting in
Sesson,
convictions. People v
288,
Mich 298-302;
(1973);
NW2d
501-502
see
Crutchfield,
App 149;
The remaining issues raised by defendant are moot.
Reversed and remanded. J.,
E. A. Quinell, concurred. Danhof, C. J. (dissenting). I dissent. respectfully *4 Defendant offered the terms of parole his on direct examination as an explanation why he would not have associated with police the infor- mant. Defendant did so to bolster his claim that he had not sold anything to the informant.
122 118 Mich by circumstances, I not Under do believe these that 266, 273-274; Rappuhn, v 390 212 766, (1973), 205, 209; NW2d 67 ALR3d is In properly Rappuhn to this case. applicable said, it Court therefore hold that is error "We to cross-examine as to the duration prior prison details of his sentences to test his added.) credibility.” (Emphasis Id. at 273-274. did not Court noted that "defendant make any length statement of sentence resulting as from prior his convictions to which he did testify.” Id. at 271.
Here the prosecutor’s questions concerning the conditions of which parole, defendant’s included a requirement from associating that he refrain criminals, irrelevant, known were not as in Rap- puhn. put question Defendant had issue the parole whether the condition of his that he not associate with known criminals had affected his conduct, my opinion and in commit- ted no cross-examining error in defendant on that point. Drew,
In People 302-304; 67 Mich App (1976), NW2d the trial court erroneously ruled, over defense that the prosecutor could inquire only not into defendant’s con- victions, but also into the total years number of he spent prison. The stated: majority
"The fact the detrimental information was brought attorney out the defense does not constitute preserved object- a waiver because he had the issue ing prior ruling. to the If Court’s there had been no ” thereto, prior ruling objection and no we would afñrm. added.) (Emphasis Id. 303-304. In the case present ruling there had been no prior *5 permitting inquiry sentence,1 into defendant’s defense counsel registered no objection to pros ecutor’s questions concerning the conditions defendant’s parole. Under these circumstances, for the reasons ably by Judge D. stated E. Holbrook, Drew, Jr. his dissent I would affirm. rule, trial court did over defense that defendant’s impeachment purposes, conviction could he used for but question upon. raised, argued, defendant’s sentence was not nor ruled