People v. Harrington

256 N.W.2d 52, 76 Mich. App. 118, 1977 Mich. App. LEXIS 889

Opinions

R. B. Burns, J.

Defendant appeals his jury conviction of delivery of marijuana contrary to MCLA 335.341(l)(c); MSA 18.1070(41)(l)(c).

Defendant first argues that the trial court erred in denying his motion to quash the information. MCLA 767.42(1); MSA 28.982 provides in part:

"An information shall not be filed against any person for a felony until such person has had a preliminary examination therefor”.

The information charged defendant with being a second offender under MCLA 335.348; MSA 18.1070(48), which provides in part:

"Any person convicted of a second or subsequent offense under this act may be imprisoned for a term up to twice the term otherwise authorized or fined an amount up to twice that otherwise authorized, or both.”

Defendant contends he was entitled to a preliminary examination as to his second offender status.

In People v McFadden, 73 Mich App 232; 251 NW2d 297 (1977), we deduced from the absence of a procedural framework in MCLA 335.348; MSA 18.1070(48) a legislative intent not to provide an adversary hearing regarding the prior offense, and observed that the second offender status could be challenged at sentencing. The statute is therefore analogous to the habitual offender act, MCLA 769.10 et seq.; MSA 28.1082 et seq., in that it does not create a separate crime, but merely creates a factor which augments the sentence of a crime. See, e.g., People v Hendrick, 398 Mich 410, 416-417; 247 NW2d 840, 842 (1976). Since the statute does not create a crime, there is no right to a preliminary examination thereon. MCLA 767.42(1); MSA 28.982; see People v Judge of Recorder’s Court, 251 Mich 626, 627; 232 NW 402, 403 (1930). It was therefore not error for the trial court to deny defendant’s motion to quash.

A police informant testified that defendant sold him marijuana. The sale was overheard and verified by a police officer. Defendant denied the sale, and by way of explanation stated on direct examination that he knew the informant had previously been arrested, and therefore avoided him because he, defendant, was on parole. On cross-examination, the prosecutor elicited the terms of defendant’s parole. It is reversible error to cross-examine a defendant as to the details of his prior prison sentence to test credibility. People v Rappuhn, 390 Mich 266, 273-274; 212 NW2d 205, 209; 67 ALR3d 766, 772 (1973). We must reverse.

We address one other issue which may recur on retrial. On cross-examination of the informant, defendant sought to elicit the circumstances surrounding prior arrests of the informant which did not result in convictions, apparently to establish that the informant had made a deal with the police, might still be subject to prosecution, and hence had an interest in the outcome of the case. Arrests not resulting in convictions are not admissible to impeach. People v Falkner, 389 Mich 682, 695; 209 NW2d 193, 199 (1973). However, a witness may be cross-examined as to any interest he might have in the outcome of the trial, which might encompass questions as to arrests not resulting in convictions. People v Sesson, 45 Mich App 288, 298-302; 206 NW2d 495, 501-502 (1973); see People v Crutchfield, 62 Mich App 149; 233 NW2d 507 (1975).

The remaining issues raised by defendant are moot.

Reversed and remanded.

E. A. Quinell, J., concurred.