Appeal from St. Clair, Halford I. Streeter, J.
Leave to appeal applied for.
D. E. Holbrook, P. J., and J. H. Gillis and M. J. Kelly, JJ. D. E. Holbrook, P. J., concurred. M. J. Kelly, J. (dissenting).
1. -- Case Precedent -- Effective Date -- Date of Publication -- Advance Sheets -- Slip Opinions -- Defenses -- Alibi Defense.
The date of publication of an opinion in the Advance Sheets of Michigan Reports, not the date of the slip opinion, is the effective date of a decision holding that it is reversible error for a trial court to denigrate an alibi defense as easily proven and hard to disprove or to suggest that it is the burden of the defendant to establish the defense, where the Michigan Supreme Court's opinion read in part "for cases tried after the publication of this opinion".
2. -- Case Precedent -- Defenses -- Alibi Defense -- Jury Instructions -- Burden of Proof -- Effective Date.
Instructions to the jury regarding an alibi defense, which twice informed the jury that proof of an alibi was not necessary for acquittal and emphasized that the burden of proof beyond a reasonable doubt remained with the prosecution, which when read in their entirety satisfied the existing standards, were adequate instructions where they were given prior to the effective date of a case holding otherwise.
3. Witnesses -- -- Cross-Examination -- Impeachment -- Credibility -- Topless Bars.
A prosecutor's cross-examination which forced a defendant to admit that she had worked in two different bars after earlier stating that she had not been employed since her divorce was an effective and proper impeachment of the defendant's credibility, and, where the remainder of the prosecutor's cross-examination was permissible, reversal is not required because there was a reference to places where the defendant admitted having been employed at topless bars.
4. Witnesses -- -- Cross-Examination -- Impeachment -- Credibility -- Prior Convictions -- Misdemeanors -- Felonies -- Record.
A defendant's claim on appeal that her credibility was improperly impeached by a prosecutor's reference to her prior misdemeanor convictions is not supported by the record where, on cross-examination, she testified that she was convicted of "shoplifting" and of "solicitation" and these terms describe equally well a number of separate offenses, some of which are misdemeanors and some of which are felonies, and the Court of Appeals, when reading the record, is uncertain as to whether the convictions were for felonies or for misdemeanors.
5. Witnesses -- -- Cross-Examination -- Impeachment -- Misdemeanors.
The rule which prohibits the bringing forth on cross-examination of misdemeanor convictions for impeachment purposes should be limited to those misdemeanors which carry a maximum of 90 days in the county jail; those misdemeanors which are punishable by imprisonment in a state prison should not come within this prohibition.
6. Witnesses -- -- Testimony -- Rebuttal Testimony -- Cumulative Testimony -- Abuse of Discretion -- Defenses -- Alibi Defense.
The admission of testimony which was presented as being rebuttal testimony but which was not properly classified as such and which may be merely cumulative was not an abuse of the trial Judge's discretion; where the prosecutor, at trial, presented three witnesses who identified the defendant as the woman who attempted to cash the check in question, and the defendant then presented testimony indicating that the defendant was elsewhere at the time of the crime, and the prosecutor recalled the three eye-witnesses who repeated their identification testimony, the testimony of the eye-witnesses was merely cumulative evidence.
Dissent by M. J. Kelly, J.
7. Witnesses -- -- Cross-Examination -- Impeachment -- Prior Convictions -- Misdemeanors.
The rule prohibiting the use on cross-examination of prior misdemeanor convictions for impeachment purposes is now limited to those misdemeanors which carry a maximum penalty of 90 days in the county jail, and those misdemeanors which are punishable by imprisonment in a state prison are no longer subject to this prohibition; however, where a prosecutor's cross-examination of a defendant, in an effort to impeach her credibility, brought out two misdemeanor convictions and a violation of parole, it constituted reversible error, where larceny of less than $100 and accosting and soliciting, each of which carries a maximum penalty of 90 days in the county jail, were the offenses which the defendant was talking about beyond peradventure.
8. Witnesses -- -- Cross-Examination -- Trial-Court Discretion -- Credibility -- Jury Prejudice -- Abuse of Discretion -- Fair Trial.
The scope of cross-examination lies within the sound discretion of the trial court, however, that discretion should be exercised "in such a way that a defendant is not cross-examined under the guise of testing credibility, merely to prejudice the jury"; where the trial court fails, over the repeated objections of defense counsel, to restrain the prosecutor, on cross-examination, from going into immaterial aspects of a defendant's life and background, the defendant has been deprived of the right to a fair trial.
The opinion of the court was delivered by: Gillis
Donna Jean McMillan was convicted of uttering and publishing a forged instrument. Defendant appeals.
A jury convicted defendant of uttering and publishing, contrary to MCLA 750.249; MSA 28.446. She was sentenced to a 2-1/2 to 14 year prison term, and appeals as of right.
On June 15, 1973, a woman attempted to cash a stolen check in a Port Huron grocery. The check was drawn on the account of one Shirley Ashford and made payable to Donna McMillan. When the store manager called the bank to verify the check, the woman fled. Three witnesses identified defendant as the woman who attempted to cash the check.
On appeal, defendant raises several issues for our consideration. We will discuss them seriatim.
At trial, defendant presented alibi testimony, and now raises objections to the instruction given the jury on alibi. Defendant urges reversal because the instruction contains language specifically disapproved in People v McCoy, 392 Mich 231; 220 NW2d 456 (1974), viz.:
"For cases tried after the publication of this opinion, it will be deemed reversible error (1) to denigrate the alibi defense 'as easily proven and hard to disprove' or to suggest that it is the burden of the defendant to 'establish' the defense." 392 Mich at 240; 220 NW2d at 460.
Here the jury was told that an alibi defense "is one easily made or manufactured and likewise hard to disprove". The instructions also spoke of "sustaining" the defense.
The McCoy slip opinion *fn1 is dated August 2, 1974. The Advance Sheets of Michigan Reports containing the opinion is dated August 30, 1974. We must decide whether "publication" of the McCoy opinion is the date of the slip sheet decision or the date the decision appeared in the Advance Sheets of Michigan Reports. Though at least four opinions of this Court have stated that McCoy governs trials after August 2, 1974, People v Crutchfield, 62 Mich App 149; 233 NW2d 507 (1975), People v Davis, 61 Mich App 220; 232 NW2d 683 (1975), People v Phelps, 57 Mich App 300; 225 NW2d 738 (1975), People v Thomas, 55 Mich App 368; 222 NW2d 320 (1974), there is no indication that in any of these decisions the court was required to focus upon the exact meaning of "publication" of McCoy. The choice of August 30th rather than August 2nd would not have led to a different result in any of these prior decisions, and we feel compelled to distinguish them on that basis.
In determining the extent of prospective effect we review other Supreme Court opinions dealing with the prospective timing of a rule the Court has pronounced. In People v Brown, 393 Mich 174, 181; 224 NW2d 38 (1974), the Court stated that the announced rule would govern "cases resulting from charges made on and after the date of this opinion". In People v Davis, 392 Mich 221, 227; 220 NW2d 452 (1974), the Court limited its rule to "future cases and in pending cases where defendants timely contested". The decision in People v Tanner, 387 Mich 683, 690; 199 NW2d 202 (1972), was limited by the Court "to those cases in which sentence is to be or has been imposed after date of filing of this opinion and to those cases which on date of filing of this opinion are pending". (Emphasis supplied.) A new rule in workmen's compensation which the Court announced in Whetro v Awkerman, 383 Mich 235, 244; 174 NW2d 783 (1970), only applied to claims for compensation "arising after March 12, 1970, the date of the filing of this opinion". (Emphasis supplied.)
As in McCoy, People v Robinson, 390 Mich 629, 634; 213 NW2d 106 (1973), speaks of publishing rather than filing when setting the operative date. Several Court of Appeals' opinions have interpreted "n appeals filed after this opinion is published" to mean that the rule in Robinson governs only after the date the opinion appeared in the advance sheets. *fn2 People v Coppernol, 59 Mich App 745; 229 NW2d 913 (1975), People v Robert Hall, 56 Mich App 10; 223 NW2d 340 (1974), People v Koehler, 54 Mich App 624, 640; 221 NW2d 398 (1974) (dissenting opinion by O'Hara, J.). *fn3 We believe this to be the better rule.
Had the Court in McCoy intended its prohibition to become immediately effective, it could have used a word other than "publication" in expressing that intention. The Court could have spoken of the date of the opinion, the date of its filing or the date of its release. By using one of these phrases, rather than speaking of publication, the Court would have clearly indicated that it intended its pronouncement to be immediately effective.
Reading "publication" to mean publication in the Advance Sheets of Michigan Reports allows the bench and bar opportunity to become aware that certain practices, formerly allowed, are now considered error. We should not expect reliance on unavailable judicial pronouncements. We conclude that "publication" used in McCoy means appearance in the Advance Sheets of Michigan Reports and that the prohibition in McCoy against certain language in alibi instructions did not become effective at the time of trial of defendant McMillan. We are forced to repudiate prior statements of this Court holding that McCoy became effective on August 2, 1974, the date of the slip opinion. However, moving the date forward to August 30, 1974, casts no doubt upon the validity of any of the opinions as it would not change the result in any of the prior decisions.
The McCoy rule not having been in effect, we find that the alibi instruction given in this case twice informs the jury that proof of alibi is not necessary for acquittal, and emphasizes that the burden of proof beyond a reasonable doubt remains with the prosecution. We find these instructions adequate, as when read in their entirety they satisfied existing standards.
Defendant also alleges that the prosecutor improperly cross-examined her, and that reversal is mandated. On direct examination, McMillan testified that she was 29 years old, divorced, the mother of six children and unemployed. On cross-examination, she stated that she had not been employed since her divorce. The prosecutor then effectively and properly impeached her credibility by forcing her to admit that she had, in fact, worked in two different bars. We agree with Judge Kelly's determination that reference to the fact that the bars were "topless" was irrelevant and improper. Because, however, we find the remainder of his cross-examination permissible, the reference to topless bars does not require reversal.
Impeachment of Defendant's ...