Opinion
Docket No. 8999.
Decided February 18, 1971.
Appeal from Hillsdale, Robert W. McIntyre, J. Submitted Division 2 January 8, 1971, at Lansing. (Docket No. 8999.) Decided February 18, 1971.
Gerald Duane Guilinger was convicted of breaking and entering with intent to commit larceny. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Lawrence L. Hayes, Prosecuting Attorney, and James B. Parker, Assistant Prosecuting Attorney, for the people.
Emil M. Fry, for defendant on appeal.
Defendant was convicted by a jury for the crime of breaking and entering with intent to commit larceny contrary to MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305).
At trial, the prosecutor was permitted to impeach a res gestae witness by reading portions of the witness's prior testimony given at the defendant's preliminary examination. On appeal, defendant contends that the trial court committed reversible error by failing to instruct the jury that the witness's prior inconsistent statement could not be considered as substantive evidence. The defendant neither objected to the use of the prior statement nor requested the trial court to give a limiting instruction.
The sole issue raised on appeal can be stated as follows:
Whether reversible error is committed when the trial court, absent a request for a limiting instruction, fails to instruct the jury that a witness's prior inconsistent statement cannot be considered by the jury as substantive evidence of the guilt or innocence of the accused.
Under established Michigan law, it is clear that a trial court commits reversible error when, after having been requested to caution the jury as to the use of the testimony, the court fails to give the limiting instruction. People v. Nemeth (1932), 258 Mich. 682, 688; People v. Redman (1969), 17 Mich. App. 610, 613; People v. Danles (1969), 15 Mich. App. 510, 513; People v. Pena (1966), 3 Mich. App. 26, 30.
The issue which is not clear in Michigan is whether, absent a request for the limiting instruction, reversible error is committed when the trial court fails to so instruct on its own initiative. This Court is not in harmony on the issue.
Although not an exhaustive list, the following cases hold, or by means of dictum support, the view that an instruction must be requested before reversible error is committed: People v. Budary (1970), 22 Mich. App. 485; People v. Pope (1967), 8 Mich. App. 231. Contra, People v. Eagger (1966), 4 Mich. App. 449 ; People v. Redman (1969), 17 Mich. App. 610 ( dictum); People v. Danles (1969), 15 Mich. App. 510 ( dictum); People v. Virgil Brown (1969), 15 Mich. App. 600 ( dictum).
The only Michigan case to expressly hold that, even absent a request, reversible error is committed when the trial court fails to instruct the jury that the testimony may be used only for impeachment and not as substantive evidence is People v. Eagger (1966), 4 Mich. App. 449. The Court in Eagger relied on People v. Durkee (1963), 369 Mich. 618. Actually, the Durkee opinion is silent as to whether an objection or request for a limiting instruction was, or was not, made by the defendant.
Language in subsequent cases (see fn 1, supra) which parrots the holding in Eagger is merely obiter dictum.
The most recent Michigan decision to address itself to this issue is People v. Budary (1970), 22 Mich. App. 485, 497. In Budary, the Court held that the defendant "having failed to request the instruction will not now be granted a new trial because of the court's failure to give the instruction". The Court in Budary distinguished previous Michigan cases which purport to require the trial court to give a limiting instruction, even though not requested, on the basis of the in-court nature of the preliminary examination testimony. While agreeing with the result reached in Budary, we are unable to agree with the reasoning. The Court's attempt to distinguish between in-court or out-of-court statements as they relate to the issue of whether a request for a cautionary instruction is needed is really a distinction without meaning. The purpose of impeaching the witness by introducing prior inconsistent statements is to vitiate a witness's credibility. Whether the prior inconsistent statement was made in court or out of court is really of no significance insofar as it relates to the issue of the necessity of instructing the jury to consider the statement for a limited purpose only.
We agree, however, with the Court's holding in Budary that this issue is governed by CL 1948, § 768.29 (Stat Ann 1954 Rev § 28.1052), which provides, in part:
"The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused".
See GCR 1963, 516.
The reason behind the rule is valid. Trial counsel have the responsibility to present the applicable law to the trial judge. It would unduly burden the trial court to require it to instruct the jury on such matters absent a request. If the rule were different, it is possible fewer requests would be made for a limiting instruction by trial counsel. The party representing the defendant could merely refrain from requesting an instruction, and if the court failed to instruct, then seek reversal on appeal. Furthermore, counsel representing the defendant may, as part of his trial strategy, decide not to request such a limiting instruction because he would prefer that the jury not be reminded of the witness's testimony before it adjourned for deliberation.
Our holding in the instant case is not to be confused with the affirmative duty imposed upon the trial court to instruct the jury regarding the elements of the crime. See People v. Guillett (1955), 342 Mich. 1.
Although cognizant of the lack of agreement by this Court on the issue presented, until directed to do otherwise by the Michigan Supreme Court we choose to follow the rule that, absent request, reversible error is not committed by the trial court's failure to give a limiting instruction on the use of testimony introduced to impeach a res gestae witness.
Judgment affirmed.
All concurred.