213 N.W.2d 602 | Mich. Ct. App. | 1973
PEOPLE
v.
PADUCHOSKI
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Gerard A. Poehlman, Assistant Prosecuting Attorney, for the people.
Carl Ziemba, for defendant on appeal.
*435 Before: DANHOF, P.J., and FITZGERALD and WALSH,[*] JJ.
WALSH, J.
Defendant, Patrick W. Paduchoski, and one William Hawthorne were convicted by a jury of attempted larceny in a building. MCLA 750.360; MSA 28.592. Each was sentenced to one year probation. Defendant Paduchoski only appeals his conviction.
Defendant first argues that the trial judge erred in defining the element of intent in his instructions to the jury. While this instruction was somewhat ambiguous, no objection was made to it at trial. Absent a showing of manifest injustice, objections to instructions cannot be raised for the first time on appeal. GCR 1963, 516.2; People v Flowers, 30 Mich App 579; 186 NW2d 777 (1971); People v Miron, 31 Mich App 142; 187 NW2d 497 (1971); People v Larry Smith, 31 Mich App 191; 187 NW2d 490 (1971). No manifest injustice resulted from the instruction on intent. We hold, therefore, no reversible error arose from this instruction.
Next, did the trial court commit reversible error when it ruled during cross-examination of the key prosecution witness that the witness's place of employment was immaterial?
Defendant and Hawthorne, employees of the Acme Quality Paint Company, were charged with larceny in the company's warehouse on the night of September 14, 1971. An eyewitness, Joseph Bryant, who was standing across the street from the warehouse, testified that he saw defendant Paduchoski jump from a car and run into the building through a side door. He further testified that a few seconds later both defendants ran from *436 the warehouse to the street and began walking down the sidewalk. An arresting police officer testified that defendants, who were apprehended as they walked down the sidewalk, were the same two men he momentarily viewed in the warehouse. However, the officer admitted that he lost sight of the two men after they fled through the side door. Thus, only witness Bryant's testimony unequivocally identifies the two men in the warehouse as the defendants.
On cross-examination, counsel for appellant's co-defendant asked Mr. Bryant where he worked. The court sustained the prosecutor's objection, ruling that where the witness works is immaterial. During cross-examination by appellant's counsel an objection was made to a question concerning the witness's residence. During the colloquy between counsel and trial judge the question of place of employment again arose:
"Mr. Young: Well I take the position, your Honor, and I have to take it because having tried cases for 44 years and in cross-examination, the only way that I can properly represent a defendant in a criminal case is to cross-examine the witness on the stand at least enough to satisfy myself and to also give the jury the benefit of passing upon credibility and then I want to get to the point of where he's working. This becomes material too, and other questions that I'm going to ask. There's a lot of things that come in. There is no showing here, your Honor, to restrict this witness in reference to keeping anything secret. He's not an informer.
"The Court: It's not a matter of secrecy. It's a matter of materiality.
"Mr. Young: Well materiality I can only develop when I cross-examine the witness to establish his credibility.
"The Court: We're interested in what this witness saw that night, where he lives, what he does for a living *437 is completely immaterial and if the courts have ruled for 44 years otherwise, then I disagree with them."
In Alford v United States, 282 US 687; 51 S Ct 218; 75 L Ed 624 (1931), the Court held that it was an abuse of discretion and prejudicial error for the trial court to prohibit cross-examination of a government witness respecting his place of residence. The Court reasoned:
"Counsel often cannot know in advance what pertinent facts may be elicited on cross-examination. * * * It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and to put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. * * * To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to descredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial. * * * In this respect a summary denial of the right of cross-examination is distinguishable from the erroneous admission of harmless testimony. * * * The question, `Where do you live?' was not only an appropriate preliminary to the cross-examination of the witness, but * * * was an essential step in identifying the witness with his environment, to which cross-examination may always be directed." Alford, supra, at 693; 51 S Ct at 219-220; 75 L Ed at 628.
In Smith v Illinois, 390 US 129; 88 S Ct 748; 19 L Ed 2d 956 (1968), the Court reaffirmed Alford. In that case a witness who identified himself on direct examination as "James Jordan" admitted on cross-examination that "James Jordan" was not his real name. The trial judge, however, sustained objections to questions by the defense attorney *438 concerning the witness' correct name and residence. Holding this to be a denial of defendant's right to confront witnesses against him, US Const Ams VI, XIV, the Court stated:
"[W]hen the credibility of a witness is in issue, the very starting point in exposing falsehood and bringing out the truth through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself." Smith, supra, at 131; 88 S Ct at 750; 19 L Ed 2d at 959.
Smith and Alford held it improper to forbid cross-examination of a key witness concerning his place of residence. In the case at bar, the trial court forbade questions about the key witness' place of employment. We see no viable distinction between these. In fact, occupation may be more indicative of character, reputation, and credibility than residence. Therefore, we think Smith and Alford are controlling.
The Supreme Court has recognized two exceptions to the Smith-Alford standard. The trial court may limit cross-examination as to address where (1) the questions tend merely to harass, annoy, or humiliate the witness, Alford, supra, at 694; 51 S Ct at 220; 75 L Ed at 629; or (2) the inquiries would tend to endanger the personal safety of the witness, Smith, supra, at 134-135; 88 S Ct at 751; 19 L Ed 2d at 960 (White, J., concurring); United States v Saletko, 452 F2d 193 (CA 7, 1971), cert den 405 US 1040; 92 S Ct 1311; 31 L Ed 2d 581 (1972); United States v LaBarbera, 463 F2d 988 (CA 7, 1972). The record reveals neither exception applies.
*439 The trial court erred in refusing to permit defendant's attorney to cross-examine the government's key witness concerning his place of employment. This error compels us to reverse defendant's conviction.
Reversed and remanded.
All concurred.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.