People v. Jackson

217 N.W.2d 22, 391 Mich. 323, 1974 Mich. LEXIS 139

• Court: Michigan Supreme Court
• Decided: April 16, 1974
• Docket: 9; Docket 54,539
• Status: Published

Opinions

Levin, J.

James Jackson was convicted following a bench trial of the charged offense, assault with intent to rob being armed. MCLA 750.89; MSA 28.284.

Three hours after an attempted robbery of a bar Jackson was arrested when he sought to use a credit card stolen from a vending machine collector during the course of the attempt to rob the bar.

Jackson pled guilty to the offense of attempted unlawful possession of a credit card and was sentenced.

Jackson’s bench trial on the assault with intent to rob charge commenced a month later before the same judge who had accepted his plea of guilty and sentenced him on the credit card charge.

I

The dominant issue at the trial was identification. Barmaid-proprietress Petrenas identified Jackson as the culprit. Five other res gestae witnesses, including the vending machine collector, were unable to make an identification. Petrenas had previously identified Jackson at two photographic showings and at a lineup.¹ These identification procedures occurred while Jackson was in jail on the credit card charge but before his "arrest” on the assault with intent to rob charge. The police and prosecutor were unable to produce any records pertaining to the photographic and lineup identifications, and it is unclear whether Jackson was represented by counsel during these identification procedures.

The Court of Appeals rejected all assignments of error except those relating to the identification procedures and remanded to the trial court for a determination whether Petrenas’s in-court identification was of independent origin.

On remand, the same judge who had presided at the trial and at the earlier guilty-plea proceeding held an evidentiary hearing and concluded that Petrenas’s identification had an independent source.

Jackson contends that

(1) the judge erred in ruling that the prosecutor had an absolute right to impeach his credibility by the introduction of prior convictions, and in refusing to exercise his discretion in deciding whether to allow such impeachment in this case;

(2) Petrenas’s in-court identification testimony and the testimony pertaining to her pre-trial identifications should have been excluded;

(3) the judge should not have sat as trier of fact at the assault with intent to rob trial because he had accepted a plea of guilty to the charge of attempted unlawful possession of a credit card and had presumably read a presentence report before sentencing Jackson on that charge;

(4) special findings of fact are required in judge-tried criminal cases, and the findings filed by the judge in this case were inadequate;

(5) the judge erred in excusing the production of certain indorsed res gestae witnesses;

(6) the prosecutor impermissibly introduced evidence of other crimes;

(7) the judge had a predisposition to find Jackson guilty;

(8) Jackson was placed twice in jeopardy when, after he had been convicted for attempted unlawful possession of a credit card, he was prosecuted for assault with intent to rob being armed.

We reverse and remand for a new trial because the trial judge did err in failing to recognize that, in the exercise of discretion, he might have refused to allow the impeachment of Jackson by reference to his prior conviction record. We also conclude that before a new trial the question whether Petrenas’s claimed ability to identify Jackson has an independent source should again be explored before a judge other than the one who sat at the trial.

II

The statute provides that no person shall be disqualified as a witness by reason of his interest or his having been convicted of any crime but his "interest or conviction may be shown for the purpose of affecting his credibility.” (Emphasis supplied.)²

In Luck v United States, 121 US App DC 151, 156; 348 F2d 763, 768 (1965), the United States Court of Appeals for the District of Columbia Circuit held, under a statute with fundamentally the same language as the Michigan statute, that a trial judge may, in the exercise of discretion, exclude evidence of prior crimes:

"It [the statute] says, in effect, that the conviction 'may/ as opposed to 'shall/ be admitted; and we think the choice of words in this instance is significant. The trial court is not required to allow impeachment by prior conviction every time a defendant takes the stand in his own defense. The statute, in our view, leaves room for the operation of a sound judicial discretion to play upon the circumstances as they unfold in a particular case. There may well be cases where the trial judge might think that the cause of truth would be helped more by letting the jury hear the defendant’s story than by the defendant’s foregoing that opportunity because of the fear of prejudice founded upon a prior conviction. There may well be other cases where the trial judge believes the prejudicial effect of impeachment far outweighs the probative relevance of the prior conviction to the issue of credibility. This last is, of course, a standard which trial judges apply every day in other contexts; and we think it has both utility and applicability in this field.” (Emphasis by the Court.)

Subsequently, in Gordon v United States, 127 US App DC 343; 383 F2d 936 (1967), Chief Justice, then Judge, Burger suggested guidelines for the exercise of this trial judge discretion. Among the factors to be considered are the nature of the prior offense, whether it is for substantially the same conduct for which the accused is on trial, and the effect on the decisional process if the accused does not testify from fear of impeachment by prior convictions.³

The highest courts of California, Pennsylvania, Illinois, Wisconsin, Connecticut, Alaska, Kentucky and New Mexico have also adopted the view that the question rests in the trial judge’s discretion, the California and Pennsylvania Courts expressly adopting the factor-balancing approach of the Luck-Gordon opinions.⁴ Mr. Justice Schaefer, speaking for a unanimous Illinois Supreme Court, declared:

"The question is inherently judicial, and we believe that view is correct which places the discretion as to the admissibility of this kind of evidence in the judge rather than in the prosecutor.” People v Montgomery, 47 Ill 2d 510, 515; 268 NE2d 695, 698 (1971).⁵

In People v Cummins, 47 Mich 334, 336; 11 NW 184 (1882), this Court, in its first statement after the legislative elimination of the common-law disability of a defendant in a criminal case to testify in his own behalf, declared "it was quite within the discretionary authority of the trial judge” (emphasis supplied) to permit a defendant who had elected to testify to be cross-examined as to his prior conviction record.⁶

In People v Farrar, 36 Mich App 294, 300-306; 193 NW2d 363 (1971), a panel of the Court of Appeals adopted the Luck construction, and held it was error for a trial judge to fail to recognize that he may, in the exercise of discretion, refuse to allow reference to a defendant’s prior conviction record. This construction of the statute has been followed in subsequent Court of Appeals decisions.⁷

We are persuaded that a trial judge may in the exercise of discretion exclude reference to a prior conviction record, and that it is error to fail to recognize that he has such discretion and, therefore, to fail or to refuse to exercise it.

In so construing our statute we have in mind that it is the duty of this Court to make the ultimate decision on whether to adopt, amend or retain a rule of evidence.⁸

In this case, at the conclusion of the people’s proofs, Jackson’s lawyer asked the judge to bar the use of his conviction record should he take the stand and testify in his own behalf. The judge responded that under the statute he had no choice but to allow the use of such evidence for impeachment purposes. The judge, thus, did not recognize that he enjoyed a discretion to exclude such evidence and, in refusing counsel’s request, did not exercise his discretion to allow or disallow the use of such evidence. On remand, the trial judge shall, upon request, in the exercise of his discretion, decide whether to exclude any reference to Jackson’s prior conviction record.

III

In Kirby v Illinois, 406 US 682; 92 S Ct 1877; 32 L Ed 2d 411 (1972), the United States Supreme Court, with less than five justices joining in an opinion, declared that the Wade9 9'*Gilbert¹⁰ exclusionary rules, restricting the use of in-court identification following a pre-trial corporeal identification during which the accused was not represented by counsel, did not apply to identification testimony following a corporeal identification that takes place before the accused has been indicted or otherwise formally charged.

In United States v Ash, 413 US 300; 93 S Ct 2568; 37 L Ed 2d 619 (1973), the Supreme Court held that the Sixth Amendment does not guarantee an accused the right to counsel at photographic displays at which witnesses attempt to identify a suspect. The Court distinguished its earlier Wade decision, requiring counsel at corporeal identifications, on the basis that the suspect is not physically present at a photo showing. This conclusion was rested essentially on the Court’s analysis limiting the Sixth Amendment right to counsel to only "trial-like confrontation” at which the accused requires the "guiding hand of counsel”.

In People v Anderson, 389 Mich 155, 186-187; 205 NW2d 461 (1973), this Court, in an opinion by Mr. Justice Williams, declared:

"1. Subject to certain exceptions, identification by photograph should not be used where the accused is in custody.

"2. Where there is a legitimate reason to use photographs for identification of an in-custody accused, he has the right tó counsel as much as he would for corporeal identification procedures.”

The Anderson opinion was filed after the Kirby decision was announced but before Ash was decided.

The quoted Anderson rules were enunciated after an extensive analysis of the competing considerations and represent the conclusion of this Court, independent of any Federal constitutional mandate, that, both before and after commencement of the judicial phase of a prosecution,¹¹ a suspect is entitled to be represented by counsel at a corporeal identification or a photographic identification unless the circumstances justify the conduct of an identification procedure before the suspect can be given an opportunity to request and obtain counsel¹² and that, except in exigent circumstances, photographs of a suspect known to be in custody or who can readily be produced for a lineup¹³ may not be displayed to witnesses. After due consideration of the Kirby and Ash opinions we adhere to this view because we are of the opinion that generally the best evidence of whether an eyewitness can identify a suspect is his response at a fairly conducted lineup unaffected by an earlier showing of photographs of the suspect.

Accordingly, in the exercise of our constitutional power to establish rules of evidence applicable to judicial proceedings in Michigan courts¹⁴ and to preserve best evidence eyewitness testimony from unnecessary alteration by unfair identification procedures, the principles developed in and following the announcement of Wade, as to corporeal identifications,¹⁵ and Anderson, as to photo showings,¹⁶ shall govern the receipt in evidence of identification testimony where the witness has viewed or seen photographs of the suspect without regard to when the judicial phase of the prosecution is commenced.

We have considered whether the rules spelled out in Anderson, decided on March 27, 1973, should be made retroactive. Jackson was arrested on the credit card charge on July 1, 1970 and on the assault with intent to rob charge on August 5, 1970.

The following appears in the opinion in People v Adams, 19 Mich App 131, 133; 172 NW2d 547 (1969): "Defendant’s appellate counsel argues and the [Wayne County] prosecutor concedes that the exhibition-of-photographs stage is as critical as the lineup stage.” A footnote quotes the people’s brief: "The appellee agrees that the pretrial photographic identification stage is as critical as the lineup stage. The appellee is also in agreement with the view that, where the defendant is in custody, identification by means of a police lineup should be attempted. People v Rowell (1969), 14 Mich App 190 [165 NW2d 423].”

It, therefore, appears that at least as to appeals from Wayne County, Anderson ought to be retroactive to at least June 11, 1969, the date on which the Adams case was submitted. Jackson is, therefore, entitled to the benefit of the rule stated in Anderson. We reserve the question whether Anderson should have greater retroactivity as we think that other considerations may be relevant in appeals from less populous counties and there is no need, decisionally, to reach that question.

IV

It is unclear whether the judge who presided at Jackson’s trial received any information during the earlier credit card guilty-plea proceedings which would not have been admissible at the assault with intent to rob trial.¹⁷ In any event, since a new trial has been ordered and the judge who presided has already expressed his conclusion that Jackson is guilty, the appearance of justice will be better served if another judge of the multijudge recorder’s court presides at_the new trial. For the same reasons, we have considerable misgivings about this judge having presided at the remand hearing ordered by the Court of Appeals. Having convicted Jackson on the strength of Petrenas’s testimony, the most upright man might not be wholly objective when asked to determine whether the in-court identification had an independent origin. Accordingly, before the new trial, there shall be another hearing before another judge for the purpose of determining whether Petrenas’s identification has a source independent of the photographic and lineup identifications.

V

Turning to the remaining issues, in People v Jackson, 390 Mich 621, 627; 212 NW2d 918 (1973), we recently held that a trial judge sitting without a jury is required to file findings of fact in a criminal case as well as in a civil case. We have examined the trial judge’s findings in this case and conclude that they are more than adequate on the only disputed factual issue, identification.

We see no need to decide whether it was error to excuse the two res gestae witnesses. At the new trial it will again be the prosecutor’s obligation to attempt to produce them and the circumstances then are likely to be different than the circumstances as they were at the time of the first trial. We do observe, however, that the statement of a police officer that the testimony of one of the two witnesses was cumulative ought not to have been accepted in lieu of production of the witness. Such a statement generally is merely repetitive of what an investigative report indicates the witness told an investigating officer; acceptance of such multiple hearsay is inconsistent with the defense right to cross-examine the witness.

If upon the new trial the judge decides to exclude reference to prior convictions, it will be especially important to avoid reference to other crimes committed by Jackson, including the attempted unlawful possession of a credit card conviction, even though he was initially arrested on that charge, except to the extent the circumstances of that crime have substantial probative value on the present charge of assault with intent to rob.

There is no support in the record for the claim that the trial judge was predisposed to convict Jackson.

Although the attempted unlawful possession of a credit card charge grew out of the assault with intent to rob charge, in the sense that the credit card was taken from the vending machine operator, the assault with intent to rob and the attempted possession of a credit card were separate transactions.¹⁸ The Double Jeopardy Clause does not license subsequent offenses growing out of a theft or excuse the theft upon trial for one or another offense.

Reversed and remanded for a new trial and further proceedings consistent with this opinion.

T. M. Kavanagh, C. J., and T. G. Kavanagh, Swainson, and Williams, JJ., concurred with Levin, J.

1 Petrenas had initially described the robber to police as having a "process” hair style. Yet she selected a picture of Jacks on in which he had a "natural” style.

2 MCLA 600.2159; MSA 27A.2159; originally enacted as 1881 PA 245.

Similarly, see MCLA 600.2158; MSA 27A.2158; originally enacted as 1861 PA 125:

"No person shall be excluded from giving evidence on any matter, civil or criminal, by reason of crime or for any interest of such person * ** * ; but such interest, * * * or conviction of crime, may be shown for the purpose of drawing in question the credibility of such witness, except as is hereinafter provided.” (Emphasis supplied.)

3 The United States Courts of Appeals for the Second, Fourth and Tenth Circuits have said that the question rests in trial judge discretion. United States v Palumbo, 401 F2d 270, 273 (CA 2, 1968); United States v Hildreth, 387 F2d 328, 329 (CA 4, 1967); United States v Miller, 478 F2d 768, 769 (CA 4, 1973); United States v Bartello, 432 F2d 1030, 1033 (CA 10, 1970).

The First and Third Circuits appear to have adopted the same rule (United States v Johnson, 412 F2d 753, 756 [CA 1, 1969]; United States v Greenberg, 419 F2d 808, 809 [CA 3, 1969]), and the last expression from the Seventh Circuit is in accord. United States v DiVarco, 484 F2d 670, 677 (CA 7, 1973).

The Eighth Circuit has rejected this approach. United States v Scarpellino, 431 F2d 475, 479 (CA 8, 1970).

The Fifth Circuit may have rejected the discretionary approach. Bendelow v United States, 418 F2d 42 (CA 5, 1969), but see Unitea States v Vigo, 435 F2d 1347, 1351 (CA 5, 1970); United States v Bedgood, 453 F2d 988 (CA 5, 1972).

There are decisions of the Ninth Circuit accepting (United States v Allison, 414 F2d 407, 411 [CA 9, 1969]) and rejecting this approach (Shorter v United States, 412 F2d 428, 430 [CA 9, 1969]).s

4 People v Beagle, 6 Cal 3d 441; 99 Cal Rptr 313; 492 P2d 1 (1972); Commonwealth v Bighum, 452 Pa 554; 307 A2d 255 (1973); People v Montgomery, 47 Ill 2d 510; 268 NE2d 695 (1971); State v Driscoll, 53 Wis 2d 699; 193 NW2d 851 (1972); State v Marquez, 160 Conn 47; 273 A2d 689 (1970); Spaulding v State, 481 P2d 389 (Alas, 1971); Bowie v State, 494 P2d 800, 801 (Alas, 1972); Cotton v Commonwealth, 454 SW2d 698 (Ky, 1970); State v Coca, 80 NM 95; 451 P2d 999 (Ct App, 1969); State v Victorian, 84 NM 491; 505 P2d 436 (1973).

The Supreme Judicial Court of Maine has indicated that it is ready to adopt this view when the question is squarely presented. See State v Toppi, 275 A2d 805, 810 (Me, 1971).

The Pennsylvania Court appears to have gone further than most, stating:

"Since the avowed purpose of using prior convictions in rebuttal is to cast doubt upon the defendant’s veracity generally as a witness, it is important to limit the convictions so used to crimes involving dishonesty or false statement. 'Both Model Code of Evidence Rule 106(1)(b) and Uniform Rule of Evidence 21 make inadmissible evidence of the conviction of a crime "not involving dishonesty or false statement.” Accord, McCormick, Evidence § 43 at 91. The Comment lo the Uniform Rule states the Rule’s aim as preventing the "smearing rather than discrediting” of the witness.’ McIntosh v Pittsburgh Railways Company, 432 Pa 123, 125, 246 A2d 467, 468 (1968). Cf. Fed.R.Ev. 609. Convictions for crimes not in this category have no probative value in this regard.” Commonwealth v Bighum, 452 Pa 554, 566.

Similarly, see Cotton v Commonwealth, supra.

In so holding, the California Court acknowledged:

“The Luck decision no longer states the rule in that jurisdiction. A different result was reached in Taylor v United States, [280 A2d 79] (D. C. Cir. Aug. 6, 1971) 9 Crim L Rep. 2450 because 14 District of Columbia Code section 305, had been amended to provide that evidence of any prior felony conviction 'shall be admitted if offered’ for impeachment. This subsequent development is based on statutory change and not the underlying rationale to which we still subscribe.” People v Beagle, 6 Cal 3d 441, 452, n 1.

In this connection see fn 8 and accompanying text.

The Connecticut Court so concluded, not as a matter of statutory construction, but in application of the general rule of evidence that a judge may in the exercise of discretion exclude relevant evidence if he concludes that its probative value is outweighed by its "prejudicial” effect. State v Marquez, 160 Conn 47, 52. See, generally, McCormick, Evidence (2d ed), § 185, pp 438-441; 1 Jones on Evidence (6th ed), § 4.6, p 392.

5 Other courts have announced their adherence to the view that a prosecutor has the right to have prior conviction evidence introduced. State v Hawthorne, 49 NJ 130; 228 A2d 682 (1967); Commonwealth v West, 357 Mass 245; 258 NE2d 22 (1970); Bustillos v State, 464 SW2d 118, 124 (Tex Crim App, 1971); State v West, 285 Minn 188; 173 NW2d 468 (1969); but see State v Stewart, — Minn —; 209 NW2d 913 (1973); People v Yeager, — Colo —; 513 P2d 1057 (1973); State v Busby, 486 SW2d 501 (Mo, 1972).

6 The common-law disabilities were removed for defendants in criminal cases by 1881 PA 245. People v Thomas, 9 Mich 314 (1861), commenting on 1861 PA 125, sets forth the former state of the law.

7 People v Downs, 45 Mich App 130, 133; 206 NW2d 241 (1973); People v Hatfield, 46 Mich App 149, 151; 207 NW2d 485 (1973); People v Johnson, 46 Mich App 212, 220; 207 NW2d 914 (1973); People v Osteen, 46 Mich App 409, 419; 208 NW2d 198 (1973).

8 See Perin v Peuler (on reh), 373 Mich 531, 541-543; 130 NW2d 4 (1964); Dusdal v City of Warren, 387 Mich 354, 367; 196 NW2d 778 (1972) (per Adams, J; Swainson and Williams, JJ., concurring). Cf. Buscaino v Rhodes, 385 Mich 474, 479; 189 NW2d 202 (1971); People v Bellanca, 386 Mich 708, 716; 194 NW2d 863 (1972). See, also, GCR 1963, 601-608 promulgating rules of evidence, including rule 607 superseding a rule enacted by the Legislature.

The Supreme Court of Pennsylvania appears to have adopted the Luck construction in the exercise of its "supervisory powers”. Commonwealth v Bighum, 452 Pa 554, 567.

9 United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).

10 Gilbert v California, 388 US 263; 87 S Ct 1951; 18 L Ed 2d 1178 (1967).

11 Filing of a complaint/ issuance of an arrest warrant/ preliminary examination/ filing of an information or indictment.

12 See, e.g. Simmons v United States, 390 US 377, 88 S Ct 967; 19 L Ed 2d 1247 (1968); Stovall v Denno, 388 US 293; 87 S Ct 1967; 18 L Ed 2d 1199 (1967); People v Adams, 19 Mich App 131; 172 NW2d 547 (1969).

13 See, e.g. People v Cotton, 38 Mich App 763; 197 NW2d 90 (1972).

14 See fn 8 and accompanying text. See, also, Chandler v State, 501 P2d 512, 520 (Okla Ct Crim App, 1972).

15 See People v Anderson, 389 Mich 155, 168-169; 205 NW2d 461 (1973).

16 See People v Anderson, supra, pp 186-187.

Since photographs of an accused person may not ordinarily "be displayed to witnesses” if he is "known to be in custody” or "can readily be produced for a lineup” and, in general, only such an accused person is entitled to "an opportunity to request and obtain counsel,” most proper photographic identifications — where the suspect is not known or he cannot readily be produced for a lineup — will continue to be conducted without the presence of counsel.

The identification of an accused person known to be in custody or who can readily be produced for a lineup is to be attempted, without the showing of photographs, at a corporeal lineup at which he is entitled to an opportunity to request and obtain counsel.

In general, if a photographic identification of a known suspect is in fact conducted the likelihood is that both rules (the rule against holding the photographic identification and the rule against holding it without counsel) will have been violated. A violation of either or both rules will entitle a defendant to a hearing to determine whether the witness’ subsequent corporeal identification had a source independent of the photographic identification.

17 in People v Ramsey, 385 Mich 221, 225-226; 187 NW2d 887 (1971), this Court held it was reversible error for a trial judge sitting as trier of fact to refer to the transcript of preliminary examination testimony except under the exceptions provided by statute because jurors would not be aware of this testimony except under the provisions of the statute and a judge sitting as trier of fact can assume no greater prerogatives. In People v Frazier Walker, 385 Mich 596; 189 NW2d 41 (1971), this Court adopted the opinion of the Court of Appeals, 24 Mich App 360; 180 NW2d 193 (1970), reversing a conviction where the judge in a non-jury trial had interrogated witnesses in defendant’s absence and had knowledge that he had taken a lie detector test.

This Court has under consideration the adoption of a court rule concerning the disqualification of a judge who has heard or received evidence which would not be admissible at the trial. This proposed rule has been criticized by some persons and whether and in what form it will be adopted is unresolved.

18 Jackson was arrested when he attempted to use the credit card to make a purchase three hours after the attempted robbery of the bar.