People v. McShan , 120 Mich. App. 496 ( 1982 )

120 Mich. App. 496 (1982) 327 N.W.2d 509

PEOPLE
v.
McSHAN

Docket No. 57149.

Michigan Court of Appeals.

Decided October 18, 1982.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Conrad J. Sindt, Prosecuting Attorney, and Kenneth G. Walters, Senior Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Richard B. Ginsberg), for defendant on appeal.

Before: M.J. KELLY, P.J., and R.M. MAHER and R.L. TAHVONEN,^[*] JJ.

M.J. KELLY, P.J.

Defendant was convicted after a bench trial on November 19, 1980, of felonious assault, MCL 750.82; MSA 28.277, and felony-firearm, MCL 750.227b; MSA 28.424(2), and sentenced to serve consecutive sentences of two years in prison and three years probation. Defendant appeals as of right.

At the conclusion of defense counsel's direct examination of defendant, the following discourse between defense counsel and the defendant took place:

Q. "All right. Felix, you have been arrested and convicted of offenses in the past; is that true?

A. "Yes, sir.

Q. "How many times?

A. "About three or four convictions."

Cross-examination by the prosecutor subsequently started with:

Q. "Is that felony convictions?

A. "Two felonies."

Attorneys may no longer impeach a witness with an unspecified felony conviction. People v VanDorsten, 409 Mich. 942; 298 NW2d 421 (1980). Even though VanDorsten was merely an order, it is binding precedent. People v Huff, 411 Mich. 974; 308 NW2d 110 (1981); People v Howard, 104 Mich. App. 598; 305 NW2d 268 (1981).

Defendant has raised two issues concerning the above exchange. First, he argues that the prosecution had the duty to prevent defense counsel from impeaching his own witness with unspecified prior convictions. In People v Denny, 86 Mich. App. 40, 44; 272 NW2d 332 (1978), we stated:

"We also note that the prosecutor must share responsibility for this error. The prosecutor, as an officer of the court, has the duty to see that apparent reversible error is not committed, even if the error is favorable to his case. * * *. `The duty of the prosecutor is to seek justice, not merely to convict'. As an officer of the court and a law enforcement official, the prosecutor must act not only as the sword of justice but also as the shield of justice. If the prosecutor recognizes that error is being committed, it is his duty to seek its immediate correction. A failure to exercise this duty results in costly and time-consuming retrials which could have been avoided."

In Denny, the trial judge had allowed the prosecutor to impeach the defendant with evidence of a similar prior conviction. Instead of weighing the similarity against admissibility, the trial judge weighed this similarity in favor of its admissibility. As such, the above quoted reason was only one reason why we reversed in Denny. Although Denny is correct within its context, we must stress its limitations. No analysis was undertaken here, and we do not hold a prosecutor to the duty to anticipate incomplete explication by defense counsel of a defendant's prior convictions for strategic purposes of defusing impeachment.

Defendant is also complaining of ineffective assistance of counsel. A conviction will not be reversed for a serious mistake unless it is reasonably likely that the defendant would have been acquitted. In other words, the mistake must be so significant that it may have been decisive in the defendant's conviction. See People v Coyle, 104 Mich. App. 636; 305 NW2d 275 (1981); People v Degraffenreid, 19 Mich. App. 702; 173 NW2d 317 (1969). Defendant is arguing that evidence of the prior convictions, armed robbery and attempted armed robbery, would have been excluded under the three-prong standard established in People v Crawford, 83 Mich. App. 35; 268 NW2d 275 (1978), had defense counsel requested it be excluded. However, the admission of evidence of such convictions is a matter within the trial judge's discretion. People v Jackson, 391 Mich. 323; 217 NW2d 22 (1974). Although some courts have suggested that evidence of a conviction of robbery is not as probative of credibility as evidence of convictions of such offenses as larceny and perjury, see People v Fries, 24 Cal 3d 222, 229; 155 Cal Rptr 194, 199; 594 P2d 19, 24 (1979), it does have some bearing on credibility. We cannot say that the trial judge would have abused his discretion in admitting evidence of convictions for armed robbery and attempted armed robbery in order to impeach defendant in his felonious assault trial.

Furthermore, this was a bench trial. In some situations, a conviction in a bench trial will be affirmed even though a conviction in a jury trial would have been reversed. See, e.g., People v Lundberg, 364 Mich. 596; 111 NW2d 809 (1961). In addition, the evidence was very strong against defendant. We do not believe defendant would have had a reasonably likely chance of acquittal if defense counsel had not presented references to the prior unspecified convictions.

During redirect examination, defendant's wife, the victim, admitted that she had lied during defendant's probation revocation hearing. Obviously, such testimony would have been pertinent if defense counsel had elicited it during cross-examination. However, even when combined with the alleged mistake raised above, we decline to reverse. For the reasons stated above, we do not believe that, absent these two mistakes, it would have been reasonably likely that defendant would have been acquitted.

Defendant argues next that the prosecution failed to exercise due diligence in producing a res gestae witness. Whether due diligence has been exercised is a determination left to the trial judge's discretion. People v Donald, 103 Mich. App. 613; 303 NW2d 247 (1981).

We find this issue very close. Defendant's case had been postponed a number of times. The trial was at one time set for October 8, 1980. The witness, although not subpoenaed, appeared at that time. She was then subpoenaed for the new trial date of October 21, 1980. At that time, she told a member of the prosecutor's office that she would be drifting between Battle Creek, Detroit, and Chicago. She did not know for sure where she would be and had no telephone number or address to give. However, she stated that the prosecutor should contact her children who were staying with her mother and they would contact her.

The trial was eventually set for November 18, 1980. The prosecutor did not attempt to subpoena this witness until five days before trial. A police officer then went to the witness's mother's house. There, he talked to the witness's son, who stated that she lived in Kalamazoo but would probably not be there until November 15th or 16th. On the 15th, a police officer went to the address given, but no one was there. The Kalamazoo Detective Bureau was asked to look for the witness. During the trial, the Kalamazoo Police went to another address of the witness in Kalamazoo, but were told that she no longer lived there and had given no forwarding address.

Although this case is close, we are remanding for a hearing pursuant to People v Robinson, 390 Mich. 629; 213 NW2d 106 (1973). We are convinced that if the prosecutor had attempted to secure the witness's presence earlier than five days before trial, there would have been a reasonably likely chance of securing her. In People v Pearson, 404 Mich 698, 717; 273 NW2d 856 (1979), the Supreme Court stated:

"Of particular concern to this Court, however, is that no serious effort was made sufficiently in advance of trial to allow for the difficulties which occurred."

The prosecution has the burden of establishing due diligence. The record shows that the witness did keep in contact with her children but does not reveal when the witness's children were told that she had to be in court on November 18th. If they had been told earlier, it is reasonably likely that the prosecutor would have been able to contact her in time for trial.

Therefore, we are remanding for a hearing. At this hearing, the trial judge is to affirm the conviction if the missing res gestae witness's testimony would have been merely cumulative, failure to produce resulted in a harmless error, or the prosecutor could not possibly have produced her. See Pearson, supra, p 725.

If the trial court should affirm, it must give its reasons for its findings on the record in compliance with GCR 1963, 517.1. One reason for this court rule is to ensure that the trial judge has followed the law. People v Bruce Ramsey, 89 Mich. App. 468; 280 NW2d 565 (1979), lv den 407 Mich. 861 (1979). People v Joeseype Johnson, 407 Mich. 196; 284 NW2d 718 (1979), held that felonious assault requires either an intent to injure or an intent to put the victim in reasonable fear of immediate battery. The trial judge, in his opinion, did not at all mention this specific intent element in felonious assault. As such, we cannot determine whether or not the trial judge correctly followed the law.

Defendant also claims that the evidence presented at trial was insufficient to prove the specific intent either to injure his wife or to put her in reasonable fear of immediate battery. However, his wife testified that he pointed the gun at her and stated, "Bitch, I ought to kill you". That is sufficient.

We need not address defendant's other issue.

Remanded.

R.L. TAHVONEN, J., concurred.

R.M. MAHER, J. (dissenting).

I respectfully dissent.

In the instant case, the prosecution must share with defense counsel the responsibility for defendant's impeachment by evidence of prior unspecified felony convictions. Although I would not impose a duty upon the prosecution to prevent defense counsel from impeaching his client with evidence of prior unspecified convictions, the record shows that the prosecution was an active participant in the improper attack on defendant's credibility. The prosecutor did not remain silent after defense counsel had finished impeaching his own client; rather, the prosecutor pointed out to the jury that defendant had previously been convicted of two felonies. Thus, reversal is required. People v McBride, 413 Mich. 341; 319 NW2d 535 (1982).

It may be true, as the majority states, that if defense counsel had sought to suppress evidence of his client's prior convictions, and that if the trial court had refused this request, this would not have constituted an abuse of discretion. This argument, however, misses the point. The crucial factor is not what the trial court might have done if it had been asked to exercise its discretion but, rather that, through his incompetence, defense counsel denied his client an opportunity to benefit from a favorable exercise of the trial court's discretion. Defense counsel's inexplicable failure to file a motion in limine to suppress evidence of his client's prior convictions cannot be fairly characterized as "trial strategy". This failure, compounded by defense counsel's inept attempt to "defuse" the prosecution's impeachment of his client, and coupled with his failure to impeach defendant's wife with evidence of her prior inconsistent statements, denied defendant the effective assistance of counsel.

I must respectfully disagree with the majority's implicit holding that defense counsel performed "at least as well as a lawyer with ordinary training and skill in the criminal law", see People v Garcia, 398 Mich. 250; 247 NW2d 547 (1976). Defendant is entitled to a new trial with the assistance of a competent attorney.

I would reverse.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.