Defendant was convicted by jury verdict for the sale of heroin and sentenced to a prison term of 20 to 25 years. MCLA 335.152; MSA 18.1122. On January 5, 1972, this Court by order granted leave for defendant’s delayed appeal. Defendant’s brief and supplemental brief contain ten allegations of error. Following due consideration, we find that only two allegations merit discussion:
(1) Does the Supreme Court order of People v Martin require a reversal of defendant’s conviction *411 and resentencing in light of the Controlled Substance Act of 1971, and
(2) Did the trial judge commit reversible error by permitting the prosecutor to cross-examine defendant with regard to 15 prior misdemeanor convictions for purposes of impeachment? .
The facts precipitating these issues are as follows.
Defendant was charged with selling heroin to one Jerry Wright on August 2, 1970. At trial, Wright testified that on the evening of August 2 he rode with Kim Potter to the parking lot of a Lansing restaurant where the duo met two police officers. The officers gave Wright $20 for the purchase of heroin and followed the duo to an address defendant had given Wright earlier in the day. Wright and his companion arrived at approximately 8 p.m. While Potter waited in the car, Wright approached the apartment at the given address and was admitted by Sharon Bahl. Wright and defendant proceeded to the bedroom where the purchase was consummated, the $20 being exchanged for two tinfoil packets subsequently identified as containing heroin. Wright was not regularly employed by the police department, but indicated that he initiated the informer relationship and received no compensation or benefits for his services.
Sharon Bahl testified that she resided in the apartment where the alleged sale occurred. She confirmed defendant’s presence at the scene and stated that defendant gave her $20 to satisfy an outstanding debt five or ten minutes after defendant and Wright went into the bedroom.
Defendant offered eight relatives to establish his alibi defense that he was attending a family picnic at Lake Lansing on August 2, 1970. Following the picnic, everyone returned to the home of defend *412 ant’s parents between 7:30 and 8:30 p.m. Defendant’s testimony confirmed the proffered alibi, and he denied being at Sharon Bahl’s apartment on August 2. The trial was concluded by the prosecution’s offering the testimony of Cheryl Frost, a visitor present at the apartment on the day in question, to rebut defendant’s denial of being at the scene of the crime.
Defendant’s first allegation of error is based upon a Michigan Supreme Court order issued in the case of
People v Martin,
"Leave to appeal granted, March 30, 1972, on the sole ground that the sentence was excessive and constituted cruel and unusual punishment. The case is remanded to Ságinaw County Circuit Court for resentencing on or after April 1, 1972 in the light of1971 PA 196 .” (Emphasis added.)
The ambiguity of the decisional basis of this order and its juxtaposition to recent decisions involving constitutional challenges to drug convictions cast doubt upon its intended precedential effect. Finding the potential application of this order to possess significant ramifications, we review it with care.
The threshold inquiry is to determine the legal proposition upon which the order is based. The Supreme Court’s mandate is less than clear since the order is susceptible to at least two interpretations. Since the order cites no authority justifying a remand for resentencing, save "
Section 61 of the act contains a saving clause, which in pertinent part provides:
"(1) Rights and duties which have matured, penalties which have been incurred, proceedings which have begun and prosecutions for violations of law occurring before the effective date of this act are not affected or abated by this act, except as provided in this subsection. * * * ” MCLA 335.361; MSA 18.1070(61). (Emphasis added.)
This language is in accord with the general proposition that statutes are not given retroactive application.
Barber v Barber,
The exceptions referred to in § 61 are two-fold. First, defendants not sentenced by the effective date of the statute may receive the benefit of the decreased sentences contained therein. Second, de *414 fendants sentenced prior to the effective date of the statute receive the following benefit:
" * * * Within 6 months after the effective date of this act, the parole board shall review the sentences of all persons who, on the effective date of this act, are serving sentences imposed for violation of offenses similar to those set out in chapter 4 and shall forward its recommendations to the governor with respect to commutation of such sentences.” MCLA 335.361(1); MSA 18.1070(61X1). (Emphasis added.)
This language manifests the legislature’s rejection of a retroactive application of the act. The provision substitutes such retroactivity with review by the governor for purposes of commuting perfected sentences. Since Martin’s sentence fell within the purview of this provision, the Martin order’s reliance upon retroactivity of the statute would be misplaced.
The second possible interpretation of the Martin order flows from the fact that leave to appeal was granted upon "the sole ground that the sentence was excessive and constituted cruel and unusual punishment”. The Supreme Court may have reversed Martin’s sentence upon this ground for appeal and directed resentencing in compliance with the Controlled Substance Act when effective. The problem created by this interpretation is that the order (1) fails to state the decisional basis for reversal, (2) reversal upon the submitted grounds for appeal requires an extension of current case law, and (3) such a reversal upon constitutional grounds would be based upon unreasoned silence. The sentence challenged in the Martin order was a 20- to 25-year prison term for the sale of heroin. If the Martin order constitutes the Supreme Court’s pronouncement that such a sentence for the sale of heroin constitutes cruel and unusual punish *415 ment, it envisages a proposition not heretofore articulated. We are loath to attach such precedential significance to an order without express direction.
Recently, the Supreme Court in
People v Lorentzen,
Since the statute declared unconstitutional by the
Lorentzen
Court encompassed both marijuana and heroin convictions, the issue becomes one of whether
Lorentzen
was intended to apply to a sale
*416
of heroin conviction. A review of the underpinnings of the
Lorentzen
decision and absence of any language extending its applicability beyond the Court’s concern with the marijuana problem negates such extension. This conclusion is supported by the Court’s reluctance in
People v Sinclair,
This writer’s views incorporating such a distinction and considering the milieu surrounding marijuana convictions are set forth in
People v Bruinsma,
"The present statute results in a lamentable failure to discriminate between large-scale pushers of hard narcotics and the individual who merely sells or gives a marijuana cigarette to an acquaintance.” Bruinsma, supra. (Emphasis added.)
Surely, a distinction between hard narcotics such as heroin and marijuana is justified. Heroin can be lethal. It can be no less deadly than the weapons used to commit homicides. The only question is how long it takes the addiction to complete its deadly goal. The menace to society created by heroin pushers is dramatized by the fact that they are now found invading our high schools and grade schools. We must zealously guard seemingly irreversible addiction during such formative years. In light of the societal loss to heroin addiction, we *417 are not prepared to say that a 20- to 25-year sentence for its sale is either cruel or unusual. 4
It would be improvident for this Court to assume that an issue of such proportions would be decided without discussion. The Lorentzen decision should not be extended to sale of heroin cases upon a mere assumption. Since the Martin order does not cite Lorentzen as the basis for its disposition, a conclusion that it extended Lorentzen to heroin cases sub silentio is dubious.
We are not unmindful that the courts speak through orders and judgments.
Boyle v Berg,
*418 Defendant’s second allegation of error is based upon the trial judge’s admission of 15 misdemeanor convictions for purposes of impeachment. Upon cross-examination defendant admitted the following prior convictions: three for illegally possessing alcohol; three for being intoxicated in a public place; three for assault and battery; two for being a disorderly person; two for driving with a suspended license; and one each for allowing an unlicensed person to drive his car and attempting to possess barbituric acid not in a container. Although defense counsel objected to the use of such prior convictions, the trial judge permitted the inquiry "for the purpose of attack on credibility”. Defendant contends that the trial judge committed reversible error, and we agree.
The use of misdemeanors for purposes of impeachment is no stranger to the trial courts of this state, but an allegation of error based thereon has received too little attention. The general practice of admitting prior convictions for purposes of impeachment has been statutorily sanctioned* *** 6 and judicially approved. 7 This history and precedent need not blind us from the potential prejudice inherent in the practice or the realities of its use.
The present case represents a vivid example in which the admission of evidence for the limited purpose of impeachment does not comport with defendant’s right to a fair and impartial trial. Defendant was on trial for the sale of heroin, yet only one misdemeanor (attempted possession of a barbituric acid. not in a container) had even a *419 remote relationship to the charged crime. The record indicates that almost the entire cross-examination consisted of the prosecutor’s pro forma recitation of defendant’s conviction record under the guise of impeachment. This case dramatically emphasizes the need to closely scrutinize the admission of misdemeanor convictions.
In
People v Farrar,
"Among the factors to be considered are the nature of the prior offense, whether it is for substantially the same conduct for which the accused is on trial, and the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions.”
The admission of defendant’s misdemeanors is not consistent with these guidelines. The prosecutor has no "right”
9
to stand before the jury and recite defendant’s conviction record. When admission is challenged he must offer reasonable grounds upon which the trial judge can justify his exercise of discretion in favor of admission. The dissimilarity
*420
between an alleged conviction and charge was held by the Court in
People v Simard,
" * * * The prosecution thus tried to show that defendant was guilty of a misdemeanor that had not the remotest connection with the crime charged and was in no way similar in character. * * * While much latitude is allowed in cross-examination to test credibility, the prosecutor cannot bring out independent issues involving other alleged crimes that are entirely dissimilar both in nature and motive and have nothing whatsoever to do with the issue involved. * * * ”
This proposition is no less applicable to defendant’s prior convictions which are entirely dissimilar from the sale of heroin charge.
Recently, this writer authored a separate opinion in
People v Sanders,
This appeal presents the same danger to the preservation of respect for our system of criminal justice as Sanders, except that it underscores the abuse and degradation of defendant’s right to a fair and impartial trial by the number of misdemeanor convictions involved. The prosecutor’s practice of reading defendant’s entire conviction record to the jury under the facade of cross-examination and ostensible protection of the impeachment statute should not be sanctioned. The present case reveals an egregious failure to consider the number, remoteness, relationship with the charged crime, and probative value-prejudicial effect of the misdemeanors offered for impeachment purposes. Defendant’s trial turned exclusively upon the defense of alibi. Like Sanders, resolution of this issue depended exclusively upon defendant’s credibility making the admission of prior crimes critical. The limited nature of the exception upon which the admission of prior convictions is predicated should be kept foremost in the minds of our trial judges as they attempt to fairly administer the difficult and complex evidentiary standards. The admission of the challenged misdemeanors are in contravention of current guidelines and constituted an abuse of discretion. Defendant’s conviction must be reversed and the case remanded for a new trial.
Reversed and remanded.
Notes
MCLA 335.301 eise?.;MSA 18.1070(1) etseq.
MCLA 335.366; MSA 18.1070(66).
See, e.g., People v Sinclair,
The same conclusion, without discussion, is found in
People v Stedman,
Subsequent to the writing of this opinion the Supreme Court similarly refused to accord the
Martin
order precedential significance by order issued in the case of
People v Ford,
" * * * People v Lorentzen,387 Mich 167 (1972), is inapplicable *418 and that the order of this Court dated March 30, 1972, in People v John Martin,387 Mich 766 , was improvidently entered and stands as no precedent under the facts and issues in the instant or similar cases.”
MCLA 600.2158; MSA 27A.2158.
People v Di Paola,
The
Luck
doctrine has subsequently been overruled by a statutory revision sustained in
Dixon v United States,
See People
v
Farrar,
Although three separate opinions were written in this case, a conclusion that the admission of the challenged misdemeanor conviction constituted error received majority approval.