People v. Bernard Smith , 81 Mich. App. 561 ( 1978 )

D. C. Riley, J.

The charges in the instant matter stem from a robbery which took place in a residence located within the City of Detroit on February 24, 1976.

The record reveals the following facts:

The victim left her home on the morning in question to drive a roommate to work. Upon her return, she noticed that the door of the house had been tampered with. As she entered the residence, she discovered a masked man with a gun who ordered her into the dining room. The intruder then placed a pillow case over her head and bound her with some cord. The man then removed her ring and watch as he talked with his accomplice. The victim recognized the voice of the accomplice as that of defendant, Larasena Smith, with whom she was acquainted. After the intruders left, the victim untied herself and discovered that her keys and car were missing. She also noticed a strange cap which she carried with her to a nearby bar where the police were notified of the crime.

It appears that the owner of the bar recognized the cap as one belonging to defendant, Bernard Smith. On the basis of this identification, coupled with the fact that the victim recognized defendant Larasena Smith’s voice at the scene of the crime, the police proceeded to the Smith residence and arrested the defendants. During the arrest, the police officers confiscated certain items which were later identified as belonging to the victim and her roommate.

Defendants were then charged with armed rob-, bery, contrary to MCLA 750.529; MSA 28.797, and subsequently were convicted by a jury in Detroit Recorder’s Court. Defendants appeal as of right alleging several instances of error.

Defendants first contend that the trial court erred in admitting into evidence property which was not listed in the information.

At trial, the prosecution sought to admit into evidence a shotgun and a sewing machine that were seized from defendants’ residence when they were arrested. These items were stolen from the victim’s home but were not listed in the information filed against the defendants.¹ Defendants contend that such evidence is inadmissible in that it violates the rule set forth in People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973).

"While evidence of a prior conviction of a defendant may be admissible to impeach his credibility, the general rule is that evidence tending to show the commission of other criminal offenses by the defendant is inadmissible on the issue of his guilt or innocence of the offense charged.

"Evidence of other crimes is barred because it has been decided that whatever probative value such evidence has is outweighed by the disadvantage of diverting the trier of fact from an objective appraisal of the defendant’s guilt or innocence.” 390 Mich at 413.

However, an exception to the rule is set forth in People v Scott, 61 Mich App 91, 95; 232 NW2d 315 (1975).

" 'It is elementary that the acts, conduct and demeanor of a person charged with a crime at the time of, or shortly before or after the offense is claimed to have been committed, may be shown as a part of the res gestae. Proof of such acts is not rendered inadmissible by the fact that they may tend to show the commission of another crime. ’ People v Savage, 225 Mich 84, 86; 195 NW 669 (1923).” (Emphasis supplied.)

Here, the prosecutor introduced the evidence in question to establish that the defendants were in the victim’s home.

The introduction of such evidence could prejudice the defendants’ case in that the jury could find the defendants guilty of stealing items not listed in the information. However, to do so, the jury would have to disregard the trial court’s clear instructions.

"The third element is that at the time of that assault, the Defendant took the money or property alleged to have been taken, in this case, we’re talking about keys and ring and a watch, which money or property did not belong to the defendant.” (Emphasis supplied.)

We will not presume that the jury disregarded this instruction.

Based upon this record, we find that the trial judge did not abuse his discretion in determining that the probative value of the evidence outweighed its prejudicial effect.²

Defendants also claim that they were prejudiced because the admission of the evidence constituted an impermissible variance of the proofs from the information. The admission of evidence of other offenses which is offered solely in explanation and corroboration of the evidence of the act charged in the information does not constitute a variance. People v Jenness, 5 Mich 305 (1858), People v King, 365 Mich 543; 114 NW2d 219 (1962).

Accordingly, we find no error in respect to this issue.

Defendants next contend that the trial court’s instruction on reasonable doubt was improper and mandates reversal of their convictions.

The trial court instructed the jury on reasonable doubt as follows:

"What do we mean when we talk about reasonable doubt? Again, I instruct you that the People must prove the Defendants guilty beyond a reasonable doubt. I said reasonable doubt, that doesn’t mean beyond all doubt, it doesn’t mean beyond a shadow of a doubt; we’re talking about a reasonable doubt.

"A reasonable doubt is exactly what those two words signify, a doubt which is founded in reason, a doubt for which you can give a reason for entertaining. It can be a doubt which arises from the evidence which you’ve heard, during this case or it can be a doubt which arises from the lack of evidence. To put it another way, the People don’t have to eliminate all doubt from your minds. To do that would be to put you in the position of a witness, someone who has seen what happened rather than as a Juror because only if you were a witness to the event could you say that you know what happened.

"But the proofs presented by the People must eliminate doubt based upon reason, any doubt which has a rational explanation.

"Each and every element of the crime charge must be proven by that standard of proof beyond a reasonable doubt and a reasonable doubt is not something flimsy or fanciful or fictitious, nor is it any doubt based upon any sympathy or prejudice or any bias.” (Emphasis supplied.)

Defendants’ contention is without merit. The instruction given by the trial court is consistent with past instructions approved by this Court.³

Defendant, Bernard Smith, next contends that the trial court erred in denying his motion to suppress his prior misdemeanor convictions which the prosecution intended to use for impeachment purposes if he testified.

At trial, defendant’s attorney filed a motion to preclude the prosecution from using his prior misdemeanor convictions for impeachment purposes. The trial court denied the motion, and defendant chose not to testify in his own behalf.

Defendant claims that the court’s ruling is in direct conflict with the rule set forth in People v Renno, 392 Mich 45; 219 NW2d 422 (1974), which prohibits the use of prior misdemeanor convictions for impeachment purposes.

Defendant contends that his convictions for attempted unlawful driving away of an automobile and attempted larceny in a building are misdemeanors, pursuant to MCLA 750.92; MSA 28.287, and are therefore barred from being used for impeachment purposes by Renno, supra.

Unlawful driving away of an automobile is a felony under Michigan law. MCLA 750.413; MSA 28.645 provides:

"Any person who shall, wilfully and without authority, take possession of and drive or take away, and any person who shall assist in or be party to such taking possession, driving or taking away of any motor vehicle, belonging to another, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years. ” (Emphasis supplied.)

Pursuant to MCLA 750.92; MSA 28.287 attempted unlawful driving away of an automobile is also a felony:

"If the offense so attempted to be committed is punishable by imprisonment in the state prison for life, or for 5 years or more, the person convicted of such attempt shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or in the county jail not more than 1 year.” (Emphasis supplied.)

Since the aforementioned conviction was a felony, its use for impeachment purposes was within the trial court’s discretion,⁴ and the Renno rule does not apply.

We now turn to defendant’s conviction for attempted larceny in a building. This particular crime is defined by MCLA 750.92; MSA 28.287 as a misdemeanor. However, under MCLA 750.7; MSA 28.197, attempted larceny in a building is a felony as it is punishable by imprisonment in a state prison.

This inconsistency can be reconciled by applying well-established rules of statutory construction to the facts at hand.

"[It is a] fundamental rule of construction * * * [that] courts are bound, whenever possible, so to construe statutes as to give them validity and a reasonable construction; seeming inconsistencies in the various provisions of a statute should be reconciled, if possible, so as to arrive at a meaning which gives effect to all parts of the statute.” In re Petition of State Highway Commission, 383 Mich 709, 714-715; 178 NW2d 923, 926-927 (1970).

" 'When a general intention is expressed, and also a particular intention which is incompatible with the general one, the particular intention shall be considered an exception to the general one.’

"The above statement was quoted with approval in Mayor of Port Huron v City Treasurer of Port Huron, 328 Mich 99, 112 [43 NW2d 77 (1950)], where it was said, in further discussion, that (pp 111, 112):

" 'A special statute shall be given effect as an exception to the general statute in order to carry out the legislative intent. Board of Education v Blondell, 251 Mich 528 [232 NW 375 (1930)]. When a general intention is expressed and also a particular intention which is incompatible with the general one, the particular intention shall be considered as an exception to the general one. Attorney General, ex rel Owen v Joyce, 233 Mich 619 [207 NW 863 (1926)]; Heims v School District No 6 of Davison Township, 253 Mich 248 [234 NW 486 (1931)], and cases therein cited.’ ” Bullinger v Gremore, 343 Mich 516, 544; 72 NW2d 777 (1955). See also Minor Child v Health Commissioner, 16 Mich App 128, 131; 167 NW2d 880 (1969).

In the instant matter, MCLA 750.92; MSA 28.287 deals exclusively with the offense of attempted larceny in a building. MCLA 750.7; MSA 28.197 is the general statutory provision that defines what constitutes a felony under Michigan law.

The more specific statute should be controlling under the circumstances, and we rule, as a matter of law, that attempted larceny in a building is a misdemeanor in spite of the fact that it is punishable by up to two years in a state prison.

Having ruled that the offense in question is a misdemeanor, we must now determine if Renno, supra, barred its use for impeachment purposes at trial.

In Renno, supra, the Michigan Supreme Court expressly held that "municipal ordinance or misdemeanor convictions” cannot be used for impeachment purposes. 392 Mich at 55. (Emphasis added.) Even though the dissent makes a comprehensive argument that the Renno rule should not be applied to two-year or high misdemeanors, the fact remains that the Supreme Court has not acted to so limit the reach of Renno. We do not believe that this Court has the power to impose its own limits on Renno’s seemingly unambiguous language.

Absent the adoption of Michigan’s proposed rules of evidence, or Supreme Court response to the People v McMillan⁵ majority’s urging of a review of Renno, the prohibition on the use of all misdemeanor convictions for impeachment purposes remains the rule of law in Michigan.

We also cannot agree that the trial court’s decision was harmless error under the facts of this case. In People v Hagar, 73 Mich App 536; 252 NW2d 484 (1977), cited by the dissent, the defendant chose to testify and was impeached by several convictions, all but one apparently misdemeanor convictions. The Hagar Court, in a brief discussion, held that this Renno violation was harmless since the defendant had already been impeached by a felony conviction.

Without wishing to comment on the wisdom of the Hagar decision, we find it distinguishable from the case at bar. In Hagar this Court had a record of the defendant’s testimony and could evaluate the impact of the impeachment by use of misdemeanor convictions. Since the nature of those convictions, and Hagar’s felony conviction, were not revealed in the opinion, it can only be inferred that the prejudice to defendant was not sufficient to mandate reversal of the conviction.

In the present case, however, defendant, faced with the probability of impeachment by his complete criminal record, chose not to testify. This Court has no record on which to evaluate the reasons behind defendant’s decision. While it is conceivable that defendant relinquished his right to testify solely because of a desire to keep his felony conviction off the record, it is equally conceivable that the combined effect of the felony and misdemeanor was the factor that swayed the decision. It is also necessary to note that the misdemeanor conviction here was for a larceny offense, and thus may have had significant impeachment value, especially in a trial for armed robbery. Where the issue involved is as crucial to the judicial process as a defendant’s right to testify in his own behalf, any doubt as to the motivating factors behind a decision to forego that right must be resolved in the defendant’s favor.

Accordingly, the decision to allow defendant to be impeached by a misdemeanor conviction cannot be considered to be harmless error.

We have examined the issue of search and seizure and find no reversible error. See Harris v US, 390 US 234; 88 S Ct 992 (1968), People v Eddington, 387 Mich 551, 565; 198 NW2d 297 (1972).

The conviction of defendant Bernard Smith is reversed and remanded. The conviction of Larasena Smith is affirmed.

M. F. Cavanagh, P. J., concurred.

1 The information charged the defendants with feloniously stealing the victim’s watch, ring and keys.

2 People v McCartney, 60 Mich App 620; 231 NW2d 472 (1975), People v Draine, 72 Mich App 592; 250 NW2d 139 (1976).

3 People v Finley, 38 Mich 482 (1878), People v Poe, 27 Mich App 422; 183 NW2d 628 (1970), People v Ames, 60 Mich App 168; 230 NW2d 360 (1975).

4 People v Jackson, 391 Mich 323; 217 NW2d 22 (1974).

5 68 Mich App 113; 242 NW2d 518 (1976).