author: Danhof, C.J. V. J. Brennan, J.

text:
    PEOPLE v GARTH PEOPLE v COLLINS
    Docket Nos. 77-5055, 78-2109.
    Submitted June 6, 1979, at Lansing.
    Decided November 5, 1979.
    Leave to appeal applied for.
    Anthony Garth and John Collins were charged with breaking and entering an occupied dwelling with intent to commit larceny and larceny in a building. Both had previous convictions and both filed pretrial motions in limine to have evidence of their prior convictions excluded from trial evidence. After a vigorous discussion at a hearing on the motions the prosecutor finally suggested that the trial judge allow him to introduce the fact that defendants had prior unspecified felony convictions. Bay Circuit Court, John X. Theiler, J., ruled that the prosecutor could only ask defendants whether they had previously been convicted of a felony. Neither defendant chose to testify at trial. Both were convicted of the crimes charged, both appeal, and their appeals have been consolidated for purposes of review. The question presented is whether a trial judge may permit the trier of fact to be informed only that a defendant had committed a prior nonspecified felony rather than allowing impeachment by evidence of a specifically described prior felony conviction or completely excluding any evidence of the conviction. Held:

    1. Any objection to the prosecutor’s compromise suggestion could result in a ruling that evidence of more prior convictions specifically described would be admissible. References to unspecified felonies is prejudicial but reference to a number of specified felonies could be more prejudicial. Attorneys should not be faulted for choosing the lesser of two perceived evils for their clients. Failure to press for complete exclusion of evidence of a defendant’s prior convictions is not a waiver of the issue for purposes of appellate review.
    2. Evidence of unspecified felony convictions should be inadmissible because it invites a jury to speculate on the nature of the crime committed, prevents rational evaluation of the impact of a defendant’s past conduct on his credibility and informs the jury that a felon is on trial for yet another felony.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error §§ 558, 601, 602.
    [2-13] 29 Am Jur 2d, Evidence §§ 320, 327, 330.
    [9] 29 Am Jur 2d, Evidence § 208.

      3. The use of evidence of a defendant’s prior convictions for impeachment should be decided, not compromised.
    4. Evidence of unspecified felony convictions should be inadmissible for impeachment purposes because a jury would have difficulty directing its deliberations where it is denied the facts of a crime and a conviction which are necessary for a rational evaluation of the relationship between felonious conduct and credibility.
    5. A defendant is deprived of any opportunity to explain circumstances mitigating the relationship between a prior offense and his or her credibility where evidence of an unspecified prior conviction is used for purposes of impeachment.
    6. Supreme Court precedent establishes that trial judges should determine whether the probative value of evidence of specific prior convictions on the issue of credibility outweighs the prejudicial effect of the evidence. Anything less, such as the use of evidence of an unspecified prior conviction for purposes of impeachment, results in an unacceptable compromise with the rule and should not be encouraged.
    Reversed and remanded.
    V. J. Brennan, J., dissents. He would hold that there was no abuse of discretion in affording the defendants a choice of impeachment by evidence of prior convictions described by the general term "felony” or by the specific crimes as long as evidence of the prior convictions was admissible.
    Opinion of the Court
    1. Criminal Law — Evidence — Prior Convictions — Unspecified Prior Convictions — Admissibility — Appeal and Error.
    Failure to press further for complete exclusion of evidence of a defendant’s prior convictions is not a waiver of the issue for purposes of appellate review where defense attorneys may well have feared that any objections to a prosecutor’s compromise suggestion that the trial judge allow him to introduce evidence of prior unspecified felony convictions would result in a ruling that evidence of more prior convictions specifically described would be admissible; under such circumstances, attorneys should not be faulted for choosing the lesser of two perceived evils for their client.

      2. Criminal Law — Evidence — Prior Convictions — Admissibility — Discretion.
    A trial judge is required to recognize and exercise his discretionary power in admitting or excluding evidence of a defendant’s prior convictions.
    3. Criminal Law — Evidence — Unspecified Prior Convictions — Admissibility — Credibility — Jury Speculation.
    Evidence of an unspecified felony conviction should be inadmissible at trial because it invites a jury to speculate on the nature of the crime committed, prevents rational evaluation of the impact of a defendant’s past conduct on his credibility and informs the jury that a felon is on trial for yet another felony.
    4. Criminal Law — Evidence — Prior Convictions — Credibility — Impeachment — Rights of Accused — Prejudice.
    The very difficult questions presented by the use of evidence of prior convictions for impeachment must be decided rather than compromised; this is especially true where evidence of unspecified prior felony convictions is presented to impeach credibility because such unspecified prior convictions say nothing of the conduct that is asserted to bear negatively on the defendant’s reliability as a witness while presenting a very substantial possibility of jury speculation and consequent prejudicial impact upon the rights of the accused.
    5. Witnesses — Criminal Law — Prior Convictions — Credibility — Statutes.
    The basic premise underlying impeachment by evidence of a prior felony conviction is that any past felony committed by a witness is to some degree relevant to that individual’s credibility (MCL 600.2158, 600.2159; MSA 27A.2158; 27A.2159).
    6. Criminal Law — Evidence — Prior Convictions — Credibility — Probative Value — Prejudicial Effect — Admissibility — Discretion.
    The probative value of evidence of prior convictions on the issue of credibility as well as its prejudicial effect varies with the circumstances of each individual case; therefore, a trial court must exercise its discretion to balance probative and prejudicial aspects of prior conviction evidence and if the prejudicial effect outweighs the probative value, the evidence must be excluded from trial.
    7. Trial — Criminal Law — Prior Convictions — Admissibility — Credibility — Discretion — Prejudice.
    A trial court is required to exercise its discretion because it has the responsibility of controlling trial proceedings so as to aid the trier of fact in ascertaining the truth of the case; where impeachment of a criminal defendant by evidence of prior convictions is at issue, the court must determine whether the jury would profit from the opportunity to have defendant’s credibility impeached by the evidence of prior convictions or whether, alternatively, its quest for truth would be stymied if the defendant failed to testify out of fear of the prejudice resulting from evidence of the convictions.
    8. Criminal Law — Impeachment — Prior Unspecified Convictions — Admissibility — Prejudice.
    Impeachment by evidence of a prior unspecified felony conviction should not be allowed because it does not aid the trier of fact in judging a defendant’s credibility while affording a strong potential for prejudice; the trier of fact has no probative evidence to consider and is left with a prejudicially amorphous suggestion that the defendant’s past is blameworthy.
    9. Criminal Law — Evidence — Impeachment — Prior Convictions — Jury — Inferences.
    An accused person should not be convicted because he is a bad man; therefore, where impeachment of a defendant by evidence of prior convictions is attempted, courts should guard against the possibility of jury inferences that the defendant has a general criminal propensity and is thus more likely to have committed the crime charged.
    10. Trial — Criminal Law — Instructions to Jury — Evidence — Impeachment — Prior Unspecified Convictions — Credibility.
    Evidence of prior unspecified felony convictions should be inadmissible for impeachment of a defendant because even a properly instructed and well motivated jury would have difficulty directing its deliberation where it is denied the facts necessary for rational evaluation of the relationship between felonious conduct and credibility.
    11. Criminal Law — Evidence — Impeachment — Credibility — Prior Convictions — Probative Value — Prejudice.
    Prior felony offenses evidence of which is used for purposes of impeachment should be specified because, in many cases, the probative value of a prior conviction on the issue of credibility is relatively low whereas the prejudicial effect may be high due to the nature of the crime; failing to specify the offense may lessen the prejudicial impact and probative value but it also deprives a defendant of any opportunity to explain circumstances mitigating the relationship between the prior offense and his or her credibility.
    12. Criminal Law — Evidence — Impeachment — Prior Convictions — Unspecified Prior Convictions — Admissibility — Probative Value — Prejudice.
    Judicial reluctance to squarely consider the factore involved in impeachment by evidence of prior convictions should not be encouraged; allowing impeachment by evidence of unspecified prior felony conviction results in an unacceptable compromise because it avoids consideration and determination of whether the probative value of evidence of the specific prior convictions on the issue of credibility outweighs its prejudicial effect.
    Dissent by V. J. Brennan, J.
    13. Criminal Law — Evidence — Impeachment — Prior Convictions — Trial Strategy — Choice of Impeachment — Discretion.

      A defendant, subject to impeachment by evidence of prior convictions, may desire to keep the nature of his prior felonies from the jury; however, as a matter of trial strategy, if disclosure is determined to be more beneñcial, there is nothing to impede the defense attorney from bringing to light the exact nature of a prior conviction and, as long as evidence of prior convictions is admissible, there is no abuse of trial court discretion in affording a defendant a choice of impeachment by the general term "felony" or by the speciñc crime.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George B. Mullison, Prosecuting Attorney, and Thomas E. Bock, Assistant Prosecuting Attorney, for the people.

      Lander C. McLoyd, Assistant State Appellate Defender, for defendants on appeal.
    Before: Danhof, C.J., and V. J. Brennan and H. R. Carroll, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

   Danhof, C.J.

This case raises one important issue concerning impeachment of a defendant’s credibility by evidence of his prior conviction: Rather than allowing impeachment by proof of a specifically described prior felony conviction or completely excluding any evidence of the conviction, may a trial judge in his or her discretion permit the trier of fact to be informed only that the defendant had committed a prior nonspecified "felony”?

Defendants were charged with breaking and entering any occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305, and larceny in a building, MCL 750.360; MSA 28.592. Both defendants filed pretrial motions in limine to have evidence of their prior convictions excluded. Defendant Collins had previously been convicted of attempted receiving and concealing stolen property, while defendant Garth had a prior felony record for carrying a concealed weapon and larceny over $100. The latter conviction was of such recent origin that Garth had not yet been sentenced for it.

At the subsequent hearing on this motion, defense attorneys, prosecutor and trial judge engaged in a vigorous, quite thorough discussion on the relative merits of admitting or excluding evidence of the defendants’ prior felony convictions. Among the points raised by the defense attorneys were the prejudicial similarity of two of the prior convictions to the offenses charged and the irrelevanee of a concealed weapons offense to defendant Garth’s credibility.

Finally, the prosecutor suggested that the trial judge allow him to introduce the fact that defendants had prior unspecified felony convictions along with the dates of those convictions. When asked whether they objected to this suggestion, the defense attorneys assented to it on the condition that the prosecutor exclude any reference to the dates of conviction. The judge accordingly ruled that the prosecutor could only ask defendants whether they had previously been convicted of "a felony”. Neither defendant chose to testify at trial, and both were convicted as charged.

We first find that the defense attorneys’ failure to press further for complete exclusion of evidence of defendants’ prior convictions was not a waiver of the issue for purposes of appellate review. Although the judge had at the time only stated that proof of the concealed weapon offense would be admissible to impeach Garth’s credibility, the defense attorneys may well have feared that any objections to the prosecutor’s compromise suggestion would result in a ruling that evidence of all three prior convictions, specifically described, was admissible. Under the circumstances, the attorneys are not to be faulted for choosing the lesser of two perceived evils on their clients’ part.

We further find that the trial judge recognized his discretionary power to admit or exclude evidence of defendants’ prior convictions, People v Jackson, 391 Mich 323, 336; 217 NW2d 22 (1974), and that he sought to exercise that discretion by weighing the probative value of evidence of the prior convictions against their prejudicial effect. Although we commend his efforts, we cannot agree with the solution he reached in this case.

The propriety of allowing impeachment of a witness by evidence of a prior unspecified felony conviction has only recently been addressed by this Court for the first time in People v Jones, 92 Mich App 100; 284 NW2d 501 (1979). The defendant in Jones was brought to trial in 1977 on four charged offenses including kidnapping, breaking and entering an occupied dwelling with intent to kidnap, assault with a gun and assault with a knife. He also had a prior felony record for second-degree murder in 1967, burglary in 1960 and grand larceny in 1952. The trial judge refused to exclude evidence of the latter two convictions, but ruled that the murder conviction could only be referred to as "a felony” at trial because the jury might otherwise view the conviction as similar to the kidnap charge. This Court on appeal held that the judge abused his discretion in allowing proof of the two property crimes because they were too old to reflect on defendant’s credibility at the time of trial.

The Jones Court also reversed the trial court’s decision to allow proof of the murder conviction as "a felony”:

"Proof of an unspecified 'felony’ conviction invites a jury to speculate on the nature of the crime * * *. At the very least, proof of the unspecified 'felony’ conviction prevents rational evaluation of the impact of the defendant’s past conduct on his credibility and therefore cannot serve the sole purpose for which it was to be presented; at the most, it informs the jury that a 'felon’ is on trial for yet another felony.
* ❖
"[Presentation of evidence of an unspecified 'felony’ conviction for purposes of impeaching the defendant’s credibility says nothing of the conduct that is asserted to bear negatively on the defendant’s reliability as a witness while presenting a very substantial possibility of jury speculation and consequent prejudicial impact upon the rights of the accused. The very difficult questions presented by the use of evidence of prior convictions for impeachment must be decided rather than compromised; * * 92 Mich App at 112, 113.

We agree with this reasoning and conclude that reversal is mandated in this case.

The basic premise underlying impeachment by evidence of a prior felony conviction is that any past felony committed by a witness is to some degree relevant to that individual’s credibility. See MCL 600.2159; MSA 27A.2159 and MCL 600.2158; MSA 27A.2158 for the statutory authority condoning impeachment of witnesses’ credibility by evidence of a prior conviction. Cf., MRE 609, effective March 1, 1978.

But the probative value of evidence of prior convictions on the issue of credibility as well as its prejudicial effect perforce varies with the circumstances of the individual case. See Gordon v United States, 127 US App DC 343; 383 F2d 936 (1967), and Luck v United States, 121 US App DC 151; 348 F2d 763, 767-769 (1965), for discussions of the variables involved. Based on this common sense consideration and on its interpretation of MCL 600.2158 and MCL 600.2159, the Michigan Supreme Court has held that the trial court must exercise its discretion to balance probative and prejudicial aspects of the prior conviction evidence. If the prejudicial effect outweighs the probative value, the evidence must be excluded from trial. See Jackson, supra.

The purpose of requiring a trial court to thus exercise its discretion is in keeping with the court’s responsibility to control trial proceedings so as to aid the trier of fact in ascertaining the truth of the case. Where impeachment of a criminal defendant is at issue, the court must often make the difficult determination whether the jury would profit from the opportunity to have defendant’s credibility impeached by evidence of prior convictions or whether, alternatively, its quest for truth would be stymied if the defendant failed to testify out of fear of the prejudice resulting from evidence of the convictions. See Jackson, supra, at 332-333, quoting from Luck, 348 F2d at 768. See also People v Crawford, 83 Mich App 35, 39-40; 268 NW2d 275 (1978).

We conclude that the procedure employed below, allowing impeachment by evidence of a prior non-specified felony conviction, does not aid the trier of fact in judging a defendant’s credibility while affording a strong potential for prejudicing the defendant.

Felony convictions cover a wide range of activities from advocating polygamy, MCL 750.441; MSA 28.696, through perjury in a court of law, MCL 750.422; MSA 28.664, to felony murder, MCL 750.316; MSA 28.548. Because many felonious activities have little if any relationship to veracity, a prior felony conviction is not in itself a reliable indication of lack of credibility. Without knowledge of the nature of the felony, the trier of fact has no probative evidence to consider, merely an amorphous suggestion that defendant’s past is blameworthy.

Jones points out that the vagueness of the term "felony” may lead a jury to speculate as to the nature of a defendant’s crime. Perhaps even worse is the possibility of a jury inference that a defendant has a general criminal propensity and is thus more likely to have committed the crime charged. Such an inference is forbidden, People v DerMartzex, 390 Mich 410, 413; 213 NW2d 97 (1973), but may be unavoidable. Cf., MRE 404. Even a properly instructed, well motivated jury would have difficulty directing its deliberations where it is denied the facts necessary for rational evaluation of the relationship between felonious conduct and credibility.

As for the prejudice to defendant, in many cases the probative value of evidence of a prior conviction on the issue of credibility is relatively low whereas the prejudicial effect may be high due to the nature of the crime. Failing to specify the offense would measurably lessen the prejudicial impact (as well as the probative value), but would also deprive the defendant of any opportunity to explain circumstances mitigating the relationship between the prior offense and his or her credibility.

In other situations, particularly where the prior conviction is for the same offense as the one charged, the trial court’s refusal to allow specific mention of the prior offense would superficially be a boon to defendant. But the defendant may nevertheless refuse to testify because the mere mention of a prior felony record is prejudicial. He or she thus foregoes a right because of a trial court decision which actually impedes the truth-seeking function of the jury. In addition, the defendant’s constitutional choice to testify or remain silent becomes a strategic guessing game because the jury’s reaction to evidence of a prior "felony” conviction is not measurable.

Finally, allowing impeachment by evidence of an unspecified prior felony conviction avoids the very decision which Jackson requires trial judges to make: Does the probative value of proof of the specific prior convictions on the issue of credibility outweigh its prejudicial effect? Without impugning the integrity of trial courts, we believe that condoning the compromise reached in this case will encourage judicial reluctance to squarely consider the factors involved in impeachment by evidence of a prior conviction. See the guidelines for the exercise of judicial discretion in Jackson, recently reaffirmed in People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979).

Defendants’ convictions are reversed. On retrial, the trial judge shall decide whether evidence of the defendants’ prior felony convictions should be admitted or excluded. We do not address the other issues on appeal because they are without merit.

Reversed and remanded.

H. R. Carroll, J., concurred.

V. J. Brennan, J.

(dissenting). I find no abuse of discretion by the trial court regarding his ruling on impeachment by evidence of prior convictions. There is no showing on the record that the trial court misapplied the factors set forth in People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978).

The majority opinion is concerned with the propensity of the jury to speculate as to the nature of the prior felony committed. Here the majority moves into the realm of trial tactics which is better left to the defendant and his attorney. Trial strategy differs with the circumstances surrounding each case. A defendant may be well advised under certain conditions to keep the nature of his prior felony from the jury. If disclosure is determined to be more beneficial, there is nothing to impede the defense attorney from bringing to light the exact nature of the prior conviction.

Under the practice employed below the defendant had the choice. As long as evidence of prior convictions is admissible, I see no error in affording a defendant a choice of impeachment by the general term "felony” or by the specific crime.

I would affirm.

       Although our opinion addresses only impeachment of criminal defendants by evidence of prior convictions, the same principles would apply to impeachment of any witness. See MRE 609.

       The record is not absolutely clear, but Collins was apparently convicted of attempted receiving and concealing stolen property in 1976 and Garth of carrying a concealed weapon in the early 1970’s. Defendants’ trial took place in 1977.

       We note that the prosecutor had the burden of persuading the judge regarding the admissibility of evidence of the prior convictions. Insofar as the judge instead required defendants to justify exclusion, he erred in shifting the burden. People v McCartney, 60 Mich App 620; 231 NW2d 472 (1975), People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978). However, we do not predicate our decision on these grounds.

       The victim in Jones testified that she had admitted defendant to her home and that he thereafter held a knife to her neck while ordering her to leave the house with him, threatened to kill her if she woke her sleeping children, forcibly pulled her from her home, pointed a gun at her several times and drove her to a deserted farm before she managed to convince him to release her.

       This would be particularly true of violent crimes. There are also numerous nonviolent crimes involving socially condemned but not dishonest or fraudulent conduct.


source: Caselaw Access Project

author: Cynar, J.

license: Public Domain

text:
    PEOPLE v GILBERT (ON REHEARING)
    Docket No. 78-383.
    Submitted October 10, 1978, at Detroit.
    Decided November 5, 1979.
    Leave to appeal applied for.
    Daniel C. Gilbert equipped his automobile with a radar detector. He was charged with equipping his automobile with a radio receiver set capable of receiving police signals. At a hearing on Gilbert’s motion to dismiss, the Troy Municipal Court concluded that radar detectors were radio receiving devices but dismissed the charge on the basis that the Legislature did not intend the statute under which Gilbert was charged to apply to radar detectors. The prosecutor appealed to the Oakland Circuit Court. Robert L. Templin, J., vacated the dismissal and ordered the case remanded for trial. Defendant appealed by leave granted and the Court of Appeals held that a radar detector was a radio receiving set within the purview of the statute, that the statute had not been preempted by Federal law, that the frequencies in question had been assigned by the Federal Communications Commission to the Police Radio Service for radar use and that the fact that the FCC had also assigned the frequencies for other uses did not affect the applicability of the statute. The Court then dismissed the charges against defendant because he had no notice that the statute applied to radar detectors. (88 Mich App 764 [1979]). The Court denied a defense application for rehearing, then, on its own motion, ordered rehearing to consider what effect the FCC’s new regulatory scheme, effective January 2, 1979, had on the Court’s original opinion. Held:

    Even though the frequencies are no longer assigned to the Police Radio Service, they are still assigned by the FCC for police purposes.
    88 Mich App 724 (1979) is affirmed.
    1. Statutes — Criminal Law — Radar Detectors.
    A radar detector is a "radio receiving set” which falls within the purview of the statute which prohibits the use in a vehicle of a radio receiving set that will receive signals sent on those frequencies allocated for police purposes (MCL 750.508; MSA 28.776).

      References for Points in Headnotes
    [1] [No Reference]
    [2] [No Reference]

      2. Criminal Law — Statutes — Radio Receivers — Frequency Allocations.
    The statute that prohibits use in a vehicle of a radio receiving set that receives signals on a frequency assigned to police does not require that those frequencies be assigned exclusively to the police; therefore, the fact that those frequencies are also allocated for other use does not affect the applicability of the statute (MCL 750.508; MSA 28.776).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Michael J. Modelski, Assistant Prosecuting Attorney, for the people.

      Bacalis & Associates, P.C., for defendant.
    Before: Danhof, C.J., and Bashara and Cynar, JJ.
   Cynar, J.

On March 6, 1979, this Court made a determination that charges were properly brought against defendant for equipping his car on December 3, 1976, with a radar detector, more commonly known as a "fuzzbuster”, in violation of MCL 750.508; MSA 28.776. People v Gilbert, 88 Mich App 764; 279 NW2d 546 (1979).

An application for rehearing filed by defendant-appellant was denied May 8, 1979. However, on June 29, 1979, this Court, on its on motion, ordered the application for rehearing granted, only to consider what effect, if any, the Federal Communication Commission’s (FCC) regulatory scheme as amended effective January 2, 1979, has on this Court’s original opinion.

The Federal Communications Act of 1934 vested authority in the FCC to regulate radio transmissions and to issue licenses for radio stations and further gave the FCC power to enact rules in order to implement a regulatory scheme.

Part 89 of these rules, entitled Public Safety Radio Service, was in effect at the time defendant was charged. The purpose of the rules was declared to be "to provide a service of radio communication essential either to the discharge of non-Federal governmental functions or to the alleviation of an emergency endangering life or property”. See 47 CFR 89.1(b) (1977).

Under 47 CFR 2.1 (1977) and 47 CFR 2.105-2.106 (1977), the frequency range from 10,500 to 10,550 MHz has been assigned for radar use. Further, under 47 CFR 89.101 (1977), as in effect at the time defendant was charged, the same frequency range was expressly, though not exclusively, assigned to the Police Radio Service, a subpart of the Public Safety Radio Service. See also 47 CFR 89.309 (1977).

Based upon the above provisions, this Court concluded that, since the above megahertz frequency range was "assigned for police purposes”, any radar detector or "fuzzbuster” which would monitor and receive radio signals within such frequency range was a radio receiving set within the meaning of MCL 750.508, and any person who equipped a vehicle with the same would be subject to the proscriptions and sanctions of that statute.

However, effective January 2, 1979, Chapter I of Title 47 of the Code of Federal Regulations was amended by deleting Parts 89, 91, and 93 of the FCC rules and regulations, and by substituting therefor Part 90-denominated Private Land Mobile Radio Services.

Under Subpart F, the Radiolocation Service, one section has been devoted to establishing requirements for eligibility for authorizations to operate radiolocation devices. This section, § 90.103, reads in relevant part:

"(a) Eligibility. The following persons are eligible for authorizations in the Radiolocation Service to operate stations to determine distance, direction, speed, or position by means of radiolocation devices, for purposes other than navigation:
"(1) Any person engaged in a commercial, industrial, scientific, educational, or local government activity.
"(2) A corporation or association that will furnish radiolocation service to other persons.
"(3) A corporation that will furnish a nonprofit radio communication service to its parent corporation, to another subsidiary of the same parent, or to its own subsidiary where the party to be served is regularly engaged in any of the eligibility activities set forth in this paragraph. * * *”

Later in the same section, the frequency range in question, 10,500 to 10,550 MHz, is deemed available for assignment to stations in the Radiolocation service. Nowhere in this section is an assignment of this range made to the Police Radio Service, either exclusively or otherwise. See § 90.103(b). Nor does Subpart B of Part 90, Public Safety Radio Services, refer to said range of frequencies in any of its subsections.

However, this does not end our inquiry. We must also examine the FCC’s licensing scheme to determine whether that impacts upon our decision. According to testimony given at trial by a radar technician, under the FCC licensing scheme, the frequency of 10,525 MHz is reserved for police purposes. At the time a police department purchases a radar unit, they submit a license application to the FCC, and are granted the same without delay. Under this licensing scheme, the license indicates that the frequency in which the radar unit operates, i.e., 10,525 MHz, is assigned for police radar purposes.

Although Part 90 no longer mentions the Police Radio Service, the licensing scheme of the FCC does not appear to be affected by the FCC’s amendment of the relevant rules and regulations, at least on the record before us. As such, we find that under MCL 750.508, the frequency of 10,525 MHz, at which radar devices operate, is still assigned by the FCC for police purposes. Accordingly, we find no grounds for disturbing the result reached in our original opinion in this matter.

88 Mich App 764 (1979) is affirmed.

       This provision, the statute under which defendant was charged, states:
      "Any person who shall equip a vehicle with a radio receiving set that will receive signals sent on frequencies assigned by the federal communications commission of the United States of America for police purposes, or use the same in this state unless such vehicle is used or owned by a peace officer or a bona fide amateur radio operator holding a conditional, general, advanced or extra class amateur license issued by the federal communications commission, without first securing a permit so to do from the commissioner of the Michigan state police upon such application as he may prescribe, shall be guilty of a misdemeanor, punishable by imprisonment in the county jail not more than 1 year or by a fine of not more than $500.00 or by both such fine and imprisonment in the discretion of the court.”

       47 USC 151 et seq.

       Subpart A of Part 90 was labeled General Information. Subpart B, Public Safety Radio Services is subdivided further into: (1) Local government radio service; (2) Police radio service; (3) Fire radio service; (4) Highway maintenance radio service; and (5) Forestry-conservation radio service. Subpart C is captioned Special Emergency Radio Service, Subpart D, Industrial Radio Services, and Subpart E, Land Transportation Radio Services. Each subpart additionally identifies specific services within the general categories.
      Finally, Subpart F is entitled Radiolocation Service, the scope of which is to accommodate "the use of radio methods for the determination of direction, distance, speed, or position for purposes other than navigation”. 43 Fed Reg 54,829 (1978) (to be codified in 47 CFR 90.101).


author: D. E. Holbrook, Jr., J.

text:
    PEOPLE v TENBRINK
    Docket No. 78-727.
    Submitted May 3, 1979, at Grand Rapids.
    Decided November 5, 1979.
    Leave to appeal applied for.
    Defendant, Gerrit Tenbrink, was found guilty but mentally ill in the Kent Circuit Court of first-degree criminal sexual conduct. Defendant appeals alleging that Roman J. Snow, J., erred at trial in sua sponte informing the jury of the possible dispositions of defendant in the event of a verdict of not guilty by reason of insanity or guilty but mentally ill and by failing to instruct on lesser included offenses. He also alleges that the statutes providing for disposition upon a verdict of guilty but mentally ill are invalid because the Department of Corrections is failing to meet its statutory obligation. Held:

    1. A trial court, in a case involving possible verdicts of not guilty by reason of insanity and guilty but mentally ill, does not err in sua sponte informing the jury as to the disposition of defendant in the event of either of those verdicts. Furthermore, the Court of Appeals will not reverse a trial court which sua sponte gave instructions to the jury in a criminal case to which the defendant did not object unless it is necessary to prevent manifest injustice.
    2. The appropriate remedy where the Department of Corrections fails to meet its statutory obligation to provide the psychiatrically-indicated treatment for a defendant and other inmates sentenced under the statute providing for a verdict of guilty but mentally ill is a complaint for a writ of mandamus to the Department of Corrections to enforce its duty under the statute.
    Affirmed.
    1. Criminal Law — Instructions to Jury — Appeal and Error.
    The Court of Appeals will not reverse a trial court which sua

      sponte gave instructions to the jury in a criminal case to which the defendant did not object unless it is necessary to prevent manifest injustice.

      References for Points in Headnotes
    [1] 75 Am Jur 2d, Trials §§ 906-908.
    [2] 75 Am Jur 2d, Trial §§ 738-742, 883.
    [3] 60 Am Jur 2d, Penal and Correctional Institutions §§ 4, 9, 52.
    [4] 75 Am Jur 2d, Trial §§ 876-882.
    [5] 75 Am Jur 2d, Trials §§ 162, 211 et seq.

      2. Criminal Law — Instructions to Jury — Disposition of Defendant — Guilty But Mentally III — Not Guilty by Reason of Insanity — Verdicts.
    A trial court, in a case involving possible verdicts of not guilty by reason of insanity and guilty but mentally ill, did not err in sua sponte informing the jury as to the disposition of defendant in the event of either of those verdicts.
    3. Criminal Law — Department of Corrections — Guilty But Mentally III — Psychiatric Treatment — Duty to Provide Treatment — Breach of Duty — Mandamus — Statutes.
    The appropriate remedy where the Department of Corrections fails to meet its statutory obligation to provide the psychiatrically-indicated treatment for a defendant and other inmates sentenced under the statute providing for a verdict of guilty but mentally ill is a complaint for a writ of mandamus to the Department of Corrections to enforce its duty under the statute (MCL 768.36[3], [4]; MSA 28.1059[3], [4]).
    4. Criminal Law — Lesser Included Offenses — Instructions to Jury.
    A failure to instruct on lesser included offenses will not be regarded as reversible error, with the sole exception of first-degree murder cases, absent a request for such instruction before the jury retires to consider its verdict.
    5. Criminal Law — Arguments of Prosecutor — Failure to Object — Curative Instructions — Appeal and Error.
    Failure to object to a prosecutor’s closing arguments at trial is a. bar to appellate review unless the prejudicial effect of the prosecutor’s comments was so great that it could not have been cured by a timely objection and cautionary instruction.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Assistant Prosecuting Attorney, for the people.

      Buth, Wood & Weidaw, for defendant on appeal.

      Before: Mackenzie, P.J., and D. E. Holbrook, Jr., and Cynar, JJ.
   D. E. Holbrook, Jr., J.

Defendant appeals as of right his September 1, 1976, jury conviction of guilty but mentally ill, MCL 768.36; MSA 28.1059, of criminal sexual conduct in the first degree, MCL 750.520b(l)(f); MSA 28.788(2)(l)(f). On appeal defendant advances four reasons for reversal, only one of which warrants extended discussion.

Defendant’s main contention is that the trial court erred by sua sponte instructing the jury as to the possible dispositions of defendant upon verdicts of "not guilty by reason of insanity” and "guilty but mentally ill”. In support of his position he relies heavily upon People v Samuelson, 75 Mich App 228; 254 NW2d 849 (1977), wherein a panel of this Court held that by implication People v Cole, 382 Mich 695; 172 NW2d 354 (1969), prohibits such an instruction. We disagree with Samuelson and hold otherwise.

In the instant case defendant did not object to the court’s sua sponte instructions and hence we will not reverse unless necessary to prevent a manifest injustice. People v Dixon, 84 Mich App 675; 270 NW2d 488 (1978). Believing such an instruction to be proper, reversal is not mandated.

Cole, supra, did not involve a sua sponte instruction. It did, however, concern itself with a situation where both defense counsel and the jury requested a disposition instruction relative to "not guilty by reason of insanity”. The court held that failure of the trial judge to so instruct when requested by the defense counsel or the jury constituted reversible error. This was all they were required to decide. We do not believe that by such holding a sua sponte instruction was by implication prohibited.

Before reaching the foregoing conclusion the Supreme Court, in Cole, discussed at great length cases pro and con regarding the possible effects of instructing a jury as to the disposition of a defendant upon a finding of "not guilty by reason of insanity”. Before arriving at their holding the Court adopted the view set forth in Lyles v United States, 103 US App DC 22; 254 F2d 725 (1957), as being the better reasoned authority. In Lyles, supra, 25, the Court stated:

"This point arises under the doctrine, well established and sound, that the jury has no concern with the consequences of a verdict, either in the sentence, if any, or the nature or extent of it, or in probation. But we think that doctrine does not apply in the problem before us. The issue of insanity having been fairly raised, the jury may return one of three verdicts, guilty, not guilty, or not guilty by reason of insanity. Jurors, in common with people in general, are aware of the meanings of verdicts of guilty and not guilty. It is common knowledge that a verdict of not guilty means that the prisoner goes free and that a verdict of guilty means that he is subject to such punishment as the court may impose. But a verdict of not guilty by reason of insanity has no such commonly understood meaning. As a matter of fact its meaning was not made clear in this jurisdiction until Congress enacted the statute of August 9, 1955 [69 Stat 710, DC Code § 24-301 (1951) (Supp 5)]. It means neither freedom nor punishment. It means the accused will be confined in a hospital for the mentally ill until the superintendent of such hospital certifies, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others. We think the jury has a right to know the meaning of this possible verdict as accurately as it knows by common knowledge the meaning of the other two possible verdicts.”

The Court continued in Lyles, pages 25 and 26:

"Sometimes a defendant may not want such an instruction given. If that appears affirmatively on the record we would not regard failure to give it as grounds for reversal. Otherwise, whenever hereafter the defense of insanity is fairly raised, the trial judge shall instruct the jury as to the legal meaning of a verdict of not guilty by reason of insanity in accordance with the view expressed in this opinion.”

When the Court in Cole found the better reasoned authority to be set forth in Lyles, we believe it adopted Lyles in full and not part. If Lyles is followed in full, and we follow it, then the giving of a disposition instruction relative to "not guilty by reason of insanity” is clearly authorized, if not mandated, absent objection by the defense counsel. Additionally, the reasons advanced in Lyles as to why a disposition instruction should be given as to "not guilty by reason of insanity” applies equally to the giving of a disposition instruction concerning "guilty but mentally ill” since the jury is equally unknowledgeable as to the consequences of such a verdict.

Nor do we feel that the change in the law relative to the possible disposition of one found "not guilty by reason of insanity” requires a different result. While the Lyles rule related to an automatic commitment statute similar to Michigan’s when Cole was decided, the District of Columbia code was amended in 1970 to require a sanity hearing within 50 days. This is similar to the new Michigan mental health code in effect at the time of trial in the case at bar. In United States v Brawner, 153 US App DC 1, 28-30; 474 F2d 969 (1972), the Court reconsidered the Lyles change and held that the instruction should be revised to conform with the statute as amended. The instructions in the instant case conformed with Michigan’s new law. On the basis of Lyles, Brawner and Cole we find no reversible error in the sua sponte instructions of the trial court relative to possible dispositions of the defendant if he were found "not guilty by reason of insanity” or "guilty but mentally ill”.

Defendant also contends that the provisions of MCL 768.36(3), 768.36(4); MSA 28.1059(3), 28.1059(4) cannot be carried out and are therefore rendered invalid. Basically defendant contends that in cases where the Department of Corrections is unable to provide the required psychiatric care the conviction is rendered invalid and must be reversed. We disagree. This issue is addressed in People v Sorna, 88 Mich App 351; 276 NW2d 892 (1979), where the Court held that when the Department of Corrections is failing to meet a statutory obligation the appropriate remedy is a complaint for writ of mandamus to the Department of Corrections to enforce the duty under the statute and not a reversal of defendant’s conviction.

Defendant further contends that the trial court committed error by failing to instruct on the lesser-included offenses of criminal sexual conduct in the second and fourth degrees. A review of the record and the court file fails to disclose any request by defense counsel to so instruct. Absent a request to instruct on lesser included offenses the trial court is under no obligation to do so. People v Henry, 395 Mich 367; 236 NW2d 489 (1975). The trial court did not, therefore, commit reversible error by failing to so instruct.

Finally defendant contends that the prosecutor made certain comments concerning his personal belief regarding the guilt of the defendant and the credibility of a witness. None of the statements made by the prosecutor were ever objected to at trial and hence are barred from appellate review unless the prejudicial effect was so great that it could not have been cured by a timely objection or cautionary instruction. People v Hernandez, 80 Mich App 465; 264 NW2d 343 (1978). Having reviewed the remarks of the prosecutor we are unable to find where the prejudice lies. Nor do we find any request that a cautionary instruction be given. Hence there was no reversible error and error, even if it exists at all, would appear to be harmless.

Affirmed.

       Michigan’s old law was an automatic commitment statute. MCL 767.27b; MSA 28.966(12). The pertinent provisions of the new mental health code, MCL 330.2050; MSA 14.800(1050), which repealed the foregoing, established a 60-day commitment period followed by a sanity hearing after which the defendant may either be committed or discharged. Such is similar to the law in the District of Columbia at the time of Lyles and prior to Brawner, which modified Lyles.


author: D. E. Holbrook, J. T. M. Burns, J.

text:
    PEOPLE v HUGHES
    Docket No. 78-1038.
    Submitted June 12, 1979, at Lansing.
    Decided November 5, 1979.
    Leave to appeal applied for.
    Howard Hughes, III, was convicted of felony murder, Washtenaw Circuit Court, William F. Ager, Jr., J. An earlier trial on the same charge had ended in a mistrial. Defendant appeals, alleging that the trial court erred in ruling that evidence of a prior conviction for second-degree murder could be used for impeachment if the defendant elected to testify, and that the trial court erroneously refused defense counsel’s request for a complete typed transcript of his first trial. Held:

    1. The trial court did not abuse its discretion in ruling that evidénce of the prior conviction would be admissible under the facts of this case.
    2. Denial of the complete transcript was not an abuse of discretion where prior to trial the court had made available tape recordings of the earlier trial proceedings and offered to have transcribed any portions which counsel wished to use for purposes of impeachment.
    Affirmed.
    T. M. Burns, J., dissented. He would hold that given the facts of this case the trial court’s decision to allow the use of evidence of the prior conviction for impeachment was an abuse of discretion, as the prejudicial effect of this evidence outweighed its probative value. He would reverse.
    Opinion of the Court
    1. Criminal Law — Evidence — Impeachment — Prior Convictions.
    Evidence of a defendant’s prior felony convictions is admissible for impeachment purposes in the discretion of the trial judge and, although great care should be used where the prior conviction was for an offense similar to that charged, similarity does not per se bar impeachment by use of evidence of the prior offense nor must the prior conviction be specifically in the area of dishonesty, such as fraud or embezzlement, for evidence of it to be admissible for impeachment.

      References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence § 321.
    [2] 21 Am Jur 2d, Criminal Law § 233. 4 Am Jur 2d, Appeal and Error § 413.
    [3] 4 Am Jur 2d, Appeal and Error § 413.
    [4] 29 Am Jur 2d, Evidence §§ 253, 330.
    Right to impeach credibility of accused by showing prior conviction, as affected by remoteness in time of prior offense. 67 ALR3d 824.
    [5] 29 Am Jur 2d, Evidence § 327.

      2. Criminal Law — Transcripts — Indigent Defendants.
    Two factors are relevant to a determination of need where an indigent defendant has requested a free transcript of his trial: (1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.
    3. Criminal Law — Transcripts — Alternatives to Transcripts.
    Denial of a defendant’s request, at his retrial, for a complete transcript of his first trial which had ended in a mistrial was not an abuse of the trial court’s discretion where the court had made available to the defense an alternative substantially equivalent to a transcript, that being the opportunity to review tape recordings of the proceedings and to have transcribed any portions needed for impeachment purposes at the trial.
    Dissent by T. M. Burns, J.
    4. Criminal Law — Evidence — Impeachment — Prior Convictions.

      A trial court abused its discretion in ruling that a prosecutor would be allowed to impeach a defendant with evidence of a prior crime, should the defendant testify, where the prior offense was 14 years earlier, was of a similar nature to the crime for which the defendant was on trial, and was committed when the defendant was only 18 years old, and where the defendant had led a crime-free life since that time; under these circumstances the evidence of the prior offense was more prejudicial than probative.

      5. Criminal Law — Evidence — Impeachment — Prior Convictions.

      The effect on the decisional process if an accused does not testify for fear of impeachment by the use of evidence of prior convictions, where the case against the defendant is close, may require that the impeachment evidence be excluded.

      Frank J. Kelley, Attorney General, Robert A.

      Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and Elizabeth Osgood Pollard, Assistant Prosecuting Attorney, for the people.

      Arthur J. Tarnow, for defendant on appeal.
    Before: Allen, P.J., and T. M. Burns and D. E. Holbrook, JJ.

       Former Court of Appeals Judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, §23 as amended in 1968.

   D. E. Holbrook, J.

Defendant was convicted by jury on May 4, 1977, of felony murder, contrary to MCL 750.316; MSA 28.548, in connection with the fatal shooting of a police officer during the armed robbery of a branch of the National Bank of Ypsilanti on July 11, 1975. On June 7, 1977, he was sentenced to life imprisonment and now appeals of right.

Defendant’s first trial ended in a mistrial in September 1976 when the jury was unable to reach a verdict. At the retrial police officer Claudius Wilcox testified that while pursuing the robbers’ automobile as it fled the scene after the robbery he observed a portion of the driver’s face, and identified defendant in court as the driver. Defendant was convicted of the crime charged and now presents five allegations of error, only two of which merit discussion.

Defendant first contends that the trial court erred reversibly by denying his pretrial motion to suppress evidence of his prior conviction of second-degree murder. In denying this motion the trial judge stated:

"As to the second request, the court suppress any testimony, if the defendant takes the stand as to his past record, of course this only applies, any reference on defendant’s past criminal record could only be brought if the defendant testifies. If he testifies, the court in exercising discretion, would feel that it would be proper to cross-examine the defendant only as to his felony record which he either has been found guilty or pled guilty, not misdemeanors or anything of this nature. * * * The court feels that this would go to the credibility of the defendant if he testifies. In the same manner, defendant, as if he testifies, testimony as to his college education where or what he’s been doing pursuant, those things that he’s accomplished, this also being brought forth as to anything which would affect his credibility, may also be presented by counsel for defendant, if the defendant testifies. This would be pertinent to his credibility. So what counsel appears to be arguing that it would be proper to show that the defendant has done excellent work in school, and so forth, and that he’s been without a blemish for many years, but then defendant seems to claim that at that point the testimony should stop and say everything that’s good should be permitted to be offered as to his credibility, but nothing in any way affecting his credibility should be offered, and the court, in its discretion, feels that this case on the basis of what the court has heard and seen, the court feels that this would be proper for cross-examination as to this felony.”

Plaintiffs brief states that in November, 1963 defendant was convicted of second-degree murder, was paroled on September 23, 1969, and was discharged from parole after 24 months.

The Michigan Supreme Court, on January 6, 1977, entered an order giving notice that it was considering the adoption of proposed Michigan Rules of Evidence. 399 Mich 951. These rules were adopted by order of the Court on January 5, 1978, to be effective on March 1, 1978. 402 Mich Ixxxviii. MRE 609(b) provides:

"ft>) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the conñnement imposed for that conviction, whichever is' the later date.” (Emphasis added.)

Defendant’s trial in the case at bar took place during April and May, 1977. The time interval between this trial and defendant’s release from the confinement imposed pursuant to his earlier conviction is well within the ten-year limit imposed by MRE 609(b). Therefore, the Michigan Rules of Evidence, even if applicable to the instant case, would not have prohibited the use of evidence of defendant’s prior conviction for impeachment purposes.

There is no question that the trial judge recognized his discretion to forbid impeachment of defendant by use of evidence of his prior conviction. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). Although evidence of similar prior convictions should be admitted with great care, People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979), People v Green, 86 Mich App 142; 272 NW2d 216 (1978), similarity does not per se bar every impeachment by evidence of a prior similar conviction, People v Cash, 80 Mich App 623; 264 NW2d 78 (1978), People v Townsend, 60 Mich App 204; 230 NW2d 378 (1975). Furthermore, a prior conviction need not be specifically in the area of dishonesty, as fraud or embezzlement, for evidence of it to be admissible for impeachment. People v Cash, supra, People v Payne, 27 Mich App 133; 183 NW2d 371 (1970).

In the case at bar the trial judge carefully balanced the negative effect of impeachment against the positive aspects of defendant’s anticipated testimony regarding his educational and other accomplishments subsequent to his prior conviction and decided that impeachment would be allowed. There was no abuse of discretion. Furthermore, although defendant did not testify at trial, his alibi defense was developed through the testimony of three defense witnesses who described his whereabouts at various times during the day of the crime. Defendant’s first contention of error is unmeritorious.

Defendant next argues that he was denied equal protection of the law because the trial court refused defense counsel’s request for a complete typed transcript of his first trial.

On January 17, 1977, Richard Zipser, defendant’s retained counsel who had conducted his first trial, moved to withdraw from the case. Counsel stated in his motion to withdraw that he was willing to assist in the case by going over all issues and evidence with any new defense counsel. The trial judge on January 26, 1977, issued an order granting the motion to withdraw, and on February 2, 1977, two new counsel were appointed to represent defendant.

Defendant’s appointed counsel filed a written motion on March 15, 1977, requesting the complete transcript of the first trial. This motion was heard on April 1, 1977, at which time one of defendant’s attorneys stated that he had received from Mr. Zipser a transcript of the testimony of witnesses Dudley Paschall and police officer Claudius Wilcox. Officer Wilcox was the sole prosecution eyewitness to identify defendant as an active participant in the robbery.

In denying the motion because of the physical impossibility of transcribing the entire first trial before the scheduled commencement of defendant’s retrial, the trial judge offered to make his conference room available to defense counsel and furnish them with recording equipment and a tape recording of all testimony at the first trial. He stated that counsel could listen to the tape as much as they wished, could make notes, and could then ask the reporter to transcribe any excerpts needed for impeachment purposes at defendant’s forthcoming trial. One of defendant’s attorneys suggested that he review the witness list with his co-counsel and Mr. Zipser, determine which witnesses they wanted to hear, and then have the court reporter transcribe limited portions of the testimony if necessary. The trial court agreed, although the record does not reveal that defense counsel ever followed this procedure.

On April 11, 1977, the first day of defendant’s retrial, defense counsel again requested a complete transcript of the original trial and asked for a continuance until the transcript could be furnished. Counsel conceded that he had conferred with Mr. Zipser and had received "rough notes” from him. The trial judge denied these requests and stated:

"I would like to emphasize because sometimes appellate courts have a tendency sometimes to not quite understand because probably we don’t make it clear, the trial courts don’t make it clear their reasons for our rulings. The matter of transcript was brought before the court officially on April 1st, 1977. I believe it was praeciped on from the week before, it was put over at request of counsel for defendant to April 1st, 1977. Trial was set or has been set for sometime for today. This was a situation to face the court where the defendant had been in jail for many, many months, almost two years. The first time he came to this court was back in August of ’75. The first trial was in August of ’76, that’s about eight months ago. If the request had been made right after the first trial, things of this nature, it may be a different situation, but on April 1st when the request was made for transcript, this court stated that is was impossible to get a transcript out in that time. We had a jury trial set in this court, I think this is probably one of the busier courts in the state. * * * So I said that it was completely impossible to get a transcript out during this time. It wasn’t a matter of money, it wasn’t a matter the court felt superfluous in any way. The court didn’t feel that. The court felt that it was important to have the testimony of an eye-witness, the only eye-witness who testified and the court felt very pleased that counsel did have that transcript, but as to the rest of the transcript of the trial, it took many, many days. The court did not mean that it was because of expense or because the court’s time or anything like that. It was because of the impossibility of getting the transcript at that late date.
"Now as to continuance this morning, this is the first time that this court was asked for continuance. We had some difficulty drawing a jury before when—had difficulty. * * * We’ye had preparations, I’ve set aside two weeks of my time for this trial. For the first time in I don’t know how long after trial is over, I’m going away for three weeks. * * * So if we delay the case today we’d probably be—I have two, three other murder cases pending. I have at least four armed robbery cases pending. Many of these people are in jail. I’m saying this would be another eight months on my schedule before we could try it. That’s not fair, equally important is the right to a speedy trial for everybody, not just the defendant, but for the People and everybody. So the court would [remind] counsel, the court did have available the tape recordings. In fact, Mrs. Mitchell, the court clerk, was available so that she could play the tape recordings if anybody wanted to hear it. So the motion at this time for continuance would be denied.”

One of defendant’s co-counsel later moved for a mistrial on the ground that he did not have a complete transcript of defendant’s first trial and therefore could not effectively represent his client. He claimed to have orally requested the transcript at a pretrial conference on February 10, 1977, but neither the court nor the prosecutor could recall such a request on that date. The trial judge denied defendant’s motion.

The United States Supreme Court in Britt v North Carolina, 404 US 226, 227; 92 S Ct 431; 30 L Ed 2d 400 (1971), held that in cases involving an indigent defendant’s claim of right to a free transcript, two factors are relevant to a determination of need: "(1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.” (Footnote omitted.) As the Court pointed out, even absent specific allegations it can ordinarily be assumed that a transcript of a prior mistrial will be valuable to a defendant as a discovery device and as a tool for impeachment of prosecution witnesses at trial. The Britt Court affirmed the trial judge’s refusal to grant the defendant a transcript of his mistrial prior to retrial where the defendant conceded that he had available an informal alternative which was substantially equivalent to a transcript.

We find Britt controlling and therefore affirm the trial court’s denial of defendant’s request for a complete transcript of his original trial. Under all of the facts and circumstances existing in the case at bar, defendant had available to him an alternative substantially equivalent to a transcript of the first trial. Neither People v Hampton, 89 Mich App 434; 280 NW2d 461 (1977), nor People v Glass, 38 Mich App 735; 197 NW2d 140 (1972), requires a contrary result, since in those cases the alternative available to the defendants was found not to be substantially equivalent to a transcript of their earlier trials.

Defendant’s third contention of error, concerning the denial of his motion for an adjournment until a transcript of his first trial could be furnished, is without merit in light of our disposition of the preceding issue. The remaining issues raised by defendant do not necessitate discussion.

Affirmed.

Allen, P.J., concurred.

T. M. Burns, J.

(dissenting). Respectfully, I must dissent.

I believe that the lower court ruling that would have permitted the prosecutor to impeach the defendant by reference to a 1963 felony in a 1977 trial was an abuse of discretion. The 14 years that separated these two offenses, the fact that they are similar in nature, the fact that the defendant was only 18 years of age when he was convicted of the second-degree murder and the fact that since that time he had led a socially acceptable, crime-free life, had obtained a bachelor’s degree from Wayne State University and had entered into a master’s degree program at Eastern Michigan University, indicate to me that the prejudicial nature of this evidence far outweighed its probative value. People v Jackson, 391 Mich 323, 335; 217 NW2d 22 (1974), People v Farrar, 36 Mich App 294, 301-303; 193 NW2d 363 (1971).

Further, I find significant in this case the fact that the defendant did not take the stand and testify on his own behalf. In cases where a defendant does not take the stand it is difficult to assess the impact of a trial judge’s decision to permit impeachment of that defendant by reference to a prior felony. Nevertheless, where the case against a defendant is close, as here, the effect on the decisional process if the accused does not testify for fear of impeachment by evidence of prior convictions may require that the impeachment evidence be excluded. Gordon v United States, 127 US App DC 343; 383 F2d 936 (1967).

No eyewitness to the bank robbery could identify the defendant as one of its perpetrators. Only Officer Wilcox, who momentarily caught a glimpse of the driver of the automobile in which the bank robbers made their getaway, could do so. Thus, the case against the defendant turned in great part on the credibility of this police officer’s identification. The events that occurred to the defendant on the day of the robbery and prior to his arrest are uniquely within his knowledge. The prejudice to him of not being able to tell his side of the story at trial is obvious. Therefore, I would find that the trial court committed reversible error in its ruling on defendant’s motion to suppress.


author: Beasley, J.

text:
    VAILLENCOURT v VAILLENCOURT
    Docket No. 78-1240.
    Submitted June 12, 1979, at Detroit.
    Decided November 5, 1979.
    Leave to appeal applied for.
    Margaret L. Vaillencourt began a divorce action against her husband, Clifford C. Vaillencourt. The defendant filed a special appearance and a motion for accelerated judgment, alleging that the Michigan court lacked jurisdiction to grant a divorce because the parties had moved to Arizona and that the plaintiff failed to meet the 180-day residency requirement. Before the hearing on the defendant’s motion, the defendant brought an action for divorce in Arizona, in which the plaintiff made a special appearance by her attorney and challenged the jurisdiction of the Arizona court. The Arizona court granted Mr. Vaillencourt a default judgment of property, after which he amended his motion in Michigan to assert that the Arizona divorce judgment was entitled to full faith and credit. Defendant obtained a new attorney, who appeared physically in court on behalf of the defendant but never filed an appearance. Defendant’s motion was denied, and eventually defendant’s default was entered and plaintiff was awarded a judgment of divorce, Oakland Circuit Court, Frederick C. Ziem, J. In a subsequent motion to set aside the default, which was denied; defendant raised for the first time the issue of plaintiff’s failure to give the required notice prior to the hearing on the default. Defendant appeals. Held:

    1. The requirement that a party who has appeared in the action be given written notice of a pending default is mandatory, and failure to give such notice invalidates the default judgment and requires that it be vacated.

      References for Points in Headnotes
    [1-3] 47 Am Jur 2d, Judgments §§ 1178, 1179.
    Effect under Rule (b)(2) of the Federal Rules of Civil Procedure and similar state statutes and rules, of failure, prior to taking default judgment against party who has appeared, to serve 3-day written notice of application for judgment. 51 ALR2d 837.
    What amounts to "appearance” under statute or rule requiring notice, to party who has "appeared,” of intention to take default judgment. 73 ALR3d 1250.
    [2, 3] 5 Am Jur 2d, Appearance §§ 1, 2.
    [4] 24 Am Jur 2d, Divorce and Separation §§ 991-997.
    Valid foreign divorce granted upon constructive service as precluding action by spouse for alimony, support, or maintenance. 28 ALR2d 1378.

      2. The issue in this case is whether or not the defendant appeared in the action for purposes of the notice requirement. The "special appearance” filed by the defendant’s first attorney was an "appearance” for purposes of the rule. That appearance was never withdrawn; therefore, because defendant was not given notice of the pending default, the judgment must be set aside.
    The judgment is vacated, and the case is remanded.
    1. Judgment — Default Judgment — Notice — Court Rules.
    A party against whom a default judgment is sought, if he has appeared in the action, is entitled to be served with written notice of the application for judgment at least seven days prior to the hearing on the application; oral notice is not substantial compliance with this rule, and where a default judgment is entered without written notice, such failure to give the required notice invalidates the judgment and requires that it be vacated (GCR 1963, 520.2[2], 520.4).
    2. Trial — Appearance — Words and Phrases.
    An "appearance” is an act of a party acknowledging jurisdiction of the court or invoking court action on his behalf; knowledge of the pending proceedings and an intention to appear are ordinarily requisite to render an act or a course of conduct an appearance.
    3. Judgment — Default Judgment — Notice — Appearance — Court Rules.
    The written notice to a party against whom a default judgment is to be taken, required by court rule where that party has appeared in the action, is necessary whether the appearance was entitled a "special appearance” or a general appearance (GCR 1963, 520.2[2]).
    4. Divorce — Constitutional Law — Full Faith and Credit — Property Settlements — Support.
    An ex parte divorce decision of a foreign jurisdiction will not be given full faith and credit with respect to matters of property settlements or support payments.

      Paul G. Valentino, for plaintiff.

      Canner & Bohnestiehl, P.C,, for defendant.
    Before: J. H. Gillis, P.J., and Beasley and R. M. Ransom, JJ.

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

   Beasley, J.

A default judgment of divorce was awarded plaintiff, Margaret L. Vaillencourt, from defendant, Clifford C. Vaillencourt, on December 30, 1977. Defendant husband appeals from the denial of his motion to set aside the default judgment.

Plaintiff and defendant were married in Pontiac, Michigan, on December 21, 1956. They had no children. On February 3, 1977, plaintiff wife began a divorce action in Michigan. Personal service was made upon defendant husband in Prescott, Arizona, on March 4, 1977.

On March 23, 1977, defendant filed a special appearance and motion for accelerated judgment in the Michigan divorce action. In his motion, defendant alleged that the Michigan court lacked jurisdiction to grant plaintiff a divorce because the parties had moved to Arizona in September, 1976, acquired property and registered voter status in that state, and put their Michigan home up for sale; hence, he claimed plaintiff failed to meet the 180-day residency requirement of MCL 552.9; MSA 25.89. Defendant further claimed that plaintiff had lived with him in Arizona until approximately February 1, 1977, when she returned to Michigan and filed for divorce. Plaintiff denied defendant’s assertions, claiming she remained a resident of Michigan, voted in Michigan and held office in the state. On April 20, 1977, the trial court heard defendant’s motion and scheduled an evidentiary hearing to determine the issues of fact that had been raised.

Meanwhile, on March 25, 1977, defendant had filed an action for divorce in the Superior Court of Arizona, Yavapai County. In the Arizona action, no personal service was made upon plaintiff, but a copy of the Arizona notice of hearing was sent to her Michigan attorney in Michigan. Through a special appearance by her attorney, she challenged the jurisdiction of the Arizona court. On May 24, 1977, the Arizona court entered a default judgment of divorce which included provisions for division of the marital property. Without hearing plaintiff, the Arizona court determined that it had both subject matter jurisdiction and personal jurisdiction over plaintiff.

On June 8, 1977, defendant amended his motion for accelerated judgment to assert that the Arizona divorce decree was entitled to full faith and credit in the courts of this state and that plaintiff’s complaint should be dismissed under GCR 1963, 116.1(5), as the subject of a prior judgment. Plaintiff’s answer to the amended motion responded that the Arizona divorce action was invalid because it was filed subsequent to the Michigan action, and that, in any event, the jurisdiction of the Arizona court could only extend to the marriage res, not to property or monies under the jurisdiction of the Michigan court.

Following a conference in chambers in August, 1977, the trial judge directed both parties to attempt to negotiate a property settlement in an effort to avoid extensive litigation of the complex jurisdictional problem. In the event that the parties could not reach agreement, an evidentiary hearing was set for October 18, 1977.

No property settlement was reached. On September 21, 1977, the trial court permitted defendant’s attorney to withdraw. On October 18, 1977, the date set for the evidentiary hearing, Ray L. Bohnenstiehl, defendant’s new attorney, physically appeared in court without his client, but Bohnenstiehl had not yet filed, nor did he then file, a written appearance. He requested the court to adjourn the evidentiary hearing, claiming that defendant’s original attorney refused to release to him alleged documentary evidence necessary to support defendant’s claims that plaintiff had not been domiciled in Michigan prior to filing this action. Based on defendant’s inability to present any relevant evidence at the scheduled hearing, the court denied the motion for accelerated judgment without prejudice.

According to plaintiffs counsel, immediately after this hearing, outside the courtroom, plaintiffs counsel told defendant’s new attorney that he expected an appearance and answer to be filed immediately, or defendant would be defaulted. Bohnenstiehl, defendant’s new attorney, admitted this conversation with plaintiff’s attorney, Paul Valentino, did take place, but claimed that he later spoke to another attorney in Valentino’s office in regard to the proposed order recapitulating the October 18, 1977, ruling; and this attorney assured him that no default would be taken. Still, no appearance was filed by Bohnenstiehl.

On December 30, 1977, defendant’s default was entered and plaintiff took a judgment of divorce pro confesso. The property division in this judgment was considerably more favorable to plaintiff than the provisions of the Arizona judgment, awarding virtually all of the parties’ real and personal property within the State of Michigan to plaintiff.

On January 11, 1978, defendant filed a motion to set aside the judgment of divorce. The trial court found no basis for setting aside the judgment and denied the motion. However, again the trial judge wisely recommended that the parties attempt to negotiate a property settlement, and he delayed the order denying defendant’s motion for two weeks. When the parties were unable to arrive at an agreement, the order denying the motion to set aside the default judgment was entered.

Defendant moved for rehearing of his prior motion to set aside the default and for a stay of proceedings pending an appeal. In addition to the grounds previously asserted for setting aside the default judgment, defendant raised, for the first time, the issue of plaintiff’s failure to give the notice required by GCR 1963, 520.2(2). Both motions were denied.

Defendant’s appeal is timely only as to the order denying his motion to set aside the default judgment of divorce.

GCR 1963, 520.2(2) states in pertinent part:

"* * * the party entitled to a judgment by default shall apply to the court therefor; * * * If the party against whom judgment by default is sought has appeared in the action, he (or if appearing by representative, his representative) shall be served with written notice of the application for judgment at least 7 days prior to the hearing on such application.”

Defendant’s counsel claims that under GCR 1963, 520.4, the trial court was required to set aside the default. Defendant argues that, as an appearance had been made, he was entitled to seven days notice prior to taking the default. Plaintiff says there was no appearance and that even if this court determines that there had been, plaintiffs attorney notified attorney Bohnenstiehl orally outside of the courtroom that a default would be taken. In support of this proposition, plaintiff cites Asmus v Barrett. The defendants in Asmus apparently had four days notice of a rescheduled hearing date on plaintiffs application for default judgment; that hearing had been postponed from five weeks earlier, and defendants had ample written notice of the original hearing date. We find Asmus inapposite to the instant facts. Further, GCR 1963, 520.2(2) speaks unequivocally of serving written notice upon "the party against whom judgment by default is sought” provided he "has appeared in the action”. We reject plaintiff’s contention that there can be oral substantial compliance with GCR 1963, 520.2(2).

GCR 1963, 520.2(2) expresses a fundamental concept of due process and its observation is mandatory; failure to give the required notice invalidates the judgment and requires that it be vacated. We find the dispositive question to be, did defendant appear in this action?

Defendant cites the only Michigan case which appears squarely to have addressed the meaning of "appear” in GCR 1963, 520.2(2). In Rhodes v Rho des the Court, citing 2 Honigman and Hawkins, Michigan Court Rules Annotated (2d ed), p 658, states:

" 'The word "appear” as it is used in sub-rule 520.2 must be taken in its generic sense as any act of a party acknowledging jurisdiction of the court or invoking court action on his behalf.’ ”

Rhodes also adopted the language of 6 CJS, Appearances, § 12, p 19:

" 'Knowledge of the pending proceedings and an intention to appear are ordinarily requisite to render an act or course of conduct an appearance. An appearance is not to be inferred except as a result of acts from which an intent to do so may properly be inferred. (Citing cases.)’ ”

Defendant relies principally upon his personal letter to the trial judge, primarily the following language: "I hope and pray your court will not cause me to loose [sic] everything that I have worked and saved for 35 years.”

Defendant seeks to characterize this as a "prayer for relief’. However, defendant’s letter does not fit comfortably within the definition of "appear” offered by Rhodes. Rather, the letter, when read as a whole, appears to renew defendant’s claim that the Michigan court lacks jurisdiction and requests the court to forbear for that reason.

Defendant strains to find other actions such as the future property settlement negotiations he was to enter into and the approval of an order orally by attorney Bohnenstiehl to constitute an appearance. There is no indication of defendant returning to negotiate prior to the default judgment. Although in some cases communications or negotiations with an opposing party’s attorney may constitute an "appearance”, upon these facts, counsel’s activities do not come with the purview of such a definition.

The resolution of the question of whether defendant ever entered an appearance depends upon the significance of the special appearance initially filed on defendant’s behalf by his original attorney. This special appearance was never withdrawn.

Although it was formerly held that a special appearance did not entitle a defendant to "notice of all further proceedings in the cause”, Honigman and Hawkins indicate that a party who unsuccessfully contests the jurisdiction of the court and remains silent thereafter is still entitled to the notice required by GCR 1963, 520.2(2):

"A party who has 'appeared’ may still be defaulted for failure to plead or otherwise defend. Thus, a party might move to dismiss for lack of jurisdiction under Rule 116. If his motion is overruled and he fails thereafter to plead within the prescribed time, he may be defaulted, but the default judgment must be entered by the court. * * *
"If the defendant has 'appeared’ as explained above, he is entitled to seven days notice on the application for default judgment.”

It is no longer necessary to raise the defense of lack of jurisdiction only by a special appearance; it may now also be raised by motion. This may indeed be the basis for the apparent conclusion drawn by Honigman and Hawkins above that a party has appeared even if for a so-called special appearance.

We find that under GCR 1963, 520.2(2), one who "appears”, be it entitled a "special appearance” or a "general” one, is required to have notice under GCR 1963, 520.2(2) before the taking of a default judgment. It is immaterial that a defendant entitled his original pleading a "special appearance”; only the generic term "appearance” retains significance. Therefore, the defendant herein, who unsuccessfully contested the jurisdiction of the court and remained silent thereafter, was entitled to the notice of GCR 1963, 520.2(2), and the default judgment must be set aside.

Consequently, we set aside the judgment of divorce and remand to the trial court for further proceedings.

In so ruling, we do not decide the complex jurisdictional issues which have not yet been heard in the trial court but, in an effort to indicate clearly what we are not yet able to decide on this record, comment further.

In his first motion for accelerated judgment, defendant claimed that the court lacked jurisdiction to grant plaintiff a divorce because she had moved her domicile to Arizona and, therefore, could not meet the Michigan statutory residency requirement. Although defendant raised the Arizona judgment in his amended motion, the trial court indicated at the August 11, 1977, hearing that it would prefer to examine the factual allegations of the original motion first, since those would likely result in outright dismissal if proved. It was only the original motion which was dismissed without prejudice for lack of proofs at the October 18, 1977, hearing. Defendant’s direct challenge to plaintiffs status as a Michigan domiciliary raised a disputed question of fact for the trial court to determine. Neither was this issue heard or decided in Arizona.

The trial judge did not reach the difficult full faith and credit question. He did not have occasion to consider whether he was bound by the judgment of the Arizona court. Consequently, we have an inadequate record and insufficient findings for a meaningful appellate review of that issue.

The United States Constitution requires that sister states give divorce decrees full faith and credit. Divorce proceedings brought by one of the parties in another state are not necessarily invalid by reason of the pendency of divorce proceedings in Michigan, especially where it does not appear that the fact of the pendency of the Michigan proceedings was brought to the attention of the court in the other state. Thus, the Michigan Supreme Court reversed the lower court’s holding that a Nevada divorce was void because no other court could have acquired jurisdiction over the same subject matter while a Michigan divorce was pending.

In the instant case, defendant claims that the issue of plaintiffs domicile in Arizona was already litigated in the Arizona courts and, therefore, the determination of that issue is res judicata between the parties and binding on the Michigan court through the full faith and credit clause. Plaintiff responds that no personal service was made upon her, that she only made a "special appearance” in Arizona, and that the judgment of divorce which defendant allegedly obtained was not the result of active litigation and was merely a routine, very brief default hearing.

In deciding whether to give any effect to the recitals of fact regarding domicile in the Arizona decree, further review of both the Federal and the Michigan cases may be helpful.

Whether the doctrine of divisible divorce, as established by the United States Supreme Court in Estin v Estin, and applied by Michigan courts in Malcolm v Malcolm and Owen v Owen is applicable here, will depend upon the trial court’s findings of fact and applications of law. In Owen, the Court found the facts to be similar to those upon which the United States Supreme Court based its holding in Estin and established divisible divorce. The Owen Court, at 121-122, found:

"The basic holding of Estin was that while the Nevada decree must be given full faith and credit as to the continuance of the marriage relationship, it does not necessarily affect other incidentals of marriage such as property settlement or support payments. * * *
"Estin leaves to the law and policy of the home state the decision as to whether the foreign divorce judgment will affect those aspects of the marriage over which the home state retains control.
"The divorce in Nevada did not purport to adjudicate anything other than the marriage relationship. It does not mention property settlement or support payments. Furthermore, the law in Michigan appears to be that ex parte divorce decisions will not be given full faith and credit with respect to these matters. The policy in Michigan is that the property rights of its citizens will be protected. We find therefore that the Nevada divorce did not terminate plaintiff’s obligation to pay support under the prior Michigan judgment._

In any event, it will be the responsibility of the trial court to decide these issues after trial (or after hearing, depending upon the procedural setting) with findings of fact and conclusions of law.

In conclusion, the default judgment of divorce is set aside and this case is remanded to the trial court for further proceedings consistent with this opinion. No costs are awarded, since neither party has prevailed in full.

       Under Arizona law, one of the parties must have been domiciled in the state for 90 days prior to commencing the action. Ariz Rev Stat 25-312.

       Plaintiff claims the Arizona court lacked personal jurisdiction over her.

       Plaintiffs attorney, Paul Valentino, was killed in an airplane accident in August, 1979, which was after oral argument in this Court.

       In neither Arizona nor Michigan has there been trial on the merits regarding property and other matters.

       30 Mich App 570; 186 NW2d 819 (1971).

        Petroff v Petroff, 88 Mich App 18, 21; 276 NW2d 503 (1979).

       3 Mich App 396, 400-401; 142 NW2d 508 (1966).

        Hews v Hews, 145 Mich 247, 253; 108 NW 694 (1906).

       2 Honigman and Hawkins, Michigan Court Rules Annotated (2d ed), p 659.

       See, Committee Comment (3) to GCR 1963, 116 at 1 Honigman and Hawkins, id. at 324.

       In this case, to date both sides have proceeded in a default setting so that neither trial judge, Michigan or Arizona, has heard both sides in a contested trial setting.

       US Const, art IV, § 1. See, Williams v North Carolina, 317 US 287; 63 S Ct 207; 87 L Ed 279 (1942).

         In re Elliott’s Estate, 285 Mich 579; 281 NW 330 (1938).

        Owen v Owen, 389 Mich 117; 205 NW2d 181 (1973). In re Elliott’s Estate, supra.

       See, Williams v North Carolina, 325 US 226, 65 S Ct 1092; 89 L Ed 1577 (1945), Davis v Davis, 305 US 32; 59 S Ct 3; 83 L Ed 26 (1938), Sherrer v Sherrer, 334 US 343; 68 S Ct 1087; 92 L Ed 1429 (1948), Pratt v Miedema, 311 Mich 64; 18 NW2d 279 (1945), Cook v Cook, 342 US 126, 128; 72 S Ct 157; 96 L Ed 146 (1951), see, Johnson v Muelberger, 340 US 581, 587; 71 S Ct 474; 95 L Ed 552 (1951).

       334 US 541; 68 S Ct 1213; 92 L Ed 1561 (1948).

       345 Mich 720; 76 NW2d 831 (1956).

       389 Mich 117; 205 NW2d 181 (1973).

       Also, standard rules of civil procedure would apply to the present situation. 24 Am Jur 2d, Divorce and Separation, § 995, p 1131 indicates:
      "The power of the divorce court to determine property rights requires jurisdiction in personam over the defendant except to the extent that it proceeds in rem against property located within the state.”

      "6 Malcolm v Malcolm, 345 Mich 720 (1956).”