Opinion
Docket No. 27335.
Decided June 7, 1977. Leave to appeal denied. 401 Mich ___.
Appeal from Montcalm, Leo B. Bebeau, J. Submitted May 4, 1977, at Lansing. (Docket No. 27335.) Decided June 7, 1977. Leave to appeal denied, 401 Mich ___.
Gregory J. Harrington was convicted of delivery of marijuana. Defendant appeals. Reversed and remanded.
Stiles, Fowler Dudley, P.C., for defendant on appeal.
Defendant appeals his jury conviction of delivery of marijuana contrary to MCLA 335.341(1)(c); MSA 18.1070(41)(1)(c).
Defendant first argues that the trial court erred in denying his motion to quash the information. MCLA 767.42(1); MSA 28.982 provides in part:
"An information shall not be filed against any person for a felony until such person has had a preliminary examination therefor".
The information charged defendant with being a second offender under MCLA 335.348; MSA 18.1070(48), which provides in part:
"Any person convicted of a second or subsequent offense under this act may be imprisoned for a term up to twice the term otherwise authorized or fined an amount up to twice that otherwise authorized, or both."
Defendant contends he was entitled to a preliminary examination as to his second offender status.
In People v McFadden, 73 Mich. App. 232; 251 N.W.2d 297 (1977), we deduced from the absence of a procedural framework in MCLA 335.348; MSA 18.1070(48) a legislative intent not to provide an adversary hearing regarding the prior offense, and observed that the second offender status could be challenged at sentencing. The statute is therefore analogous to the habitual offender act, MCLA 769.10 et seq.; MSA 28.1082 et seq., in that it does not create a separate crime, but merely creates a factor which augments the sentence of a crime. See, e.g., People v Hendrick, 398 Mich. 410, 416-417; 247 N.W.2d 840, 842 (1976). Since the statute does not create a crime, there is no right to a preliminary examination thereon. MCLA 767.42(1); MSA 28.982; see People v Judge of Recorder's Court, 251 Mich. 626, 627; 232 NW 402, 403 (1930). It was therefore not error for the trial court to deny defendant's motion to quash.
A police informant testified that defendant sold him marijuana. The sale was overheard and verified by a police officer. Defendant denied the sale, and by way of explanation stated on direct examination that he knew the informant had previously been arrested, and therefore avoided him because he, defendant, was on parole. On cross-examination, the prosecutor elicited the terms of defendant's parole. It is reversible error to cross-examine a defendant as to the details of his prior prison sentence to test credibility. People v Rappuhn, 390 Mich. 266, 273-274; 212 N.W.2d 205, 209; 67 ALR3d 766, 772 (1973). We must reverse.
We address one other issue which may recur on retrial. On cross-examination of the informant, defendant sought to elicit the circumstances surrounding prior arrests of the informant which did not result in convictions, apparently to establish that the informant had made a deal with the police, might still be subject to prosecution, and hence had an interest in the outcome of the case. Arrests not resulting in convictions are not admissible to impeach. People v Falkner, 389 Mich. 682, 695; 209 N.W.2d 193, 199 (1973). However, a witness may be cross-examined as to any interest he might have in the outcome of the trial, which might encompass questions as to arrests not resulting in convictions. People v Sesson, 45 Mich. App. 288, 298-302; 206 N.W.2d 495, 501-502 (1973); see People v Crutchfield, 62 Mich. App. 149; 233 N.W.2d 507 (1975).
The remaining issues raised by defendant are moot.
Reversed and remanded.
E.A. QUINELL, J., concurred.
I respectfully dissent.
Defendant offered the terms of his parole on direct examination as an explanation of why he would not have associated with the police informant. Defendant did so to bolster his claim that he had not sold anything to the informant.
Under these circumstances, I do not believe that People v Rappuhn, 390 Mich. 266, 273-274; 212 N.W.2d 205, 209; 67 ALR3d 766, 772 (1973), is properly applicable to this case. In Rappuhn the Court said, "We therefore hold that it is error to cross-examine defendant as to the duration and details of his prior prison sentences to test his credibility." Id. at 273-274. (Emphasis added.) The Court noted that "defendant did not make any statement as to the length of sentence resulting from his prior convictions to which he did testify." Id. at 271.
Here the prosecutor's questions concerning the conditions of defendant's parole, which included a requirement that he refrain from associating with known criminals, were not irrelevant, as in Rappuhn. Defendant had put in issue the question of whether the condition of his parole that he not associate with known criminals had affected his conduct, and in my opinion the prosecutor committed no error in cross-examining defendant on that point.
In People v Drew, 67 Mich. App. 295, 302-304; 240 N.W.2d 776 (1976), the trial court erroneously ruled, over defense objection, that the prosecutor could inquire not only into defendant's prior convictions, but also into the total number of years he had spent in prison. The majority stated:
"The fact that the detrimental information was brought out by the defense attorney does not constitute a waiver because he had preserved the issue by objecting to the Court's prior ruling. If there had been no prior ruling and no objection thereto, we would affirm." Id. at 303-304. (Emphasis added.)
In the present case there had been no prior ruling permitting inquiry into defendant's sentence, and defense counsel registered no objection to the prosecutor's questions concerning the conditions of defendant's parole. Under these circumstances, for the reasons ably stated by Judge D.E. HOLBROOK, JR. in his dissent in Drew, I would affirm.
The trial court did rule, over defense objection, that defendant's prior conviction could be used for impeachment purposes, but the question of defendant's sentence was not raised, argued, nor ruled upon.