Opinion
Docket No. 77-2927.
Decided May 21, 1979.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Nels L. Olson, Assistant Prosecuting Attorney, for the people.
George Stone, for defendant.
Defendant was charged with armed robbery, MCL 750.529; MSA 28.797, in connection with the theft of the complainant's purse from her place of work. After a jury trial, defendant was convicted of robbery not armed, MCL 750.530; MSA 28.798, and appeals as of right.
Defendant argues that the trial court's use of the "struck method" to impanel the jury constituted reversible error. By court order dated one week before trial, the court informed the attorneys that the jury would be chosen according to the struck method approved in Swain v Alabama, 380 U.S. 202; 85 S Ct 824; 13 L Ed 2d 759 (1965), and made the jury questionnaires available to them. Both defense counsel objected to the procedure on the day of trial.
At trial, 54 jurors were called and seated. After voir dire by the court, the prosecutor and the defense counsel alternated peremptory challenges, until a panel of 11 remained. Twenty more jurors were added to this panel and voir dired. The parties then continued alternating peremptories, until all defense peremptories were exhausted. From the 20 jurors remaining, 14 were impanelled as the jury, with 10 chosen from the first group and four from the second, in the order their names appeared on the jury list.
Jury selection procedures are governed by GCR 1963, 511. The struck method used in the case at bar departs from the court rule only in respect to § 6. Each time a peremptory was exercised, another juror was not seated and examined prior to proceeding. See GCR 1963, 511.6.
Defendant does not base his challenge on prejudice inherent in this method; indeed, this charge could hardly be sustained in light of the reasoning in Swain v Alabama, supra. Rather, he argues that GCR 1963, 511 has repealed the struck method of jury selection and thus its use constitutes error. However, the method used in the case at bar differs significantly from the struck method set out in now-repealed MCL 618.43 et seq.; MSA 27.1023 et seq., and appears never to have been specifically authorized by statute in this state. Nevertheless, it is unclear whether the departure from the provisions of GCR 1963, 511 is sufficiently grave to require the extreme remedy of reversal.
In a recently released opinion, People v Miller, 88 Mich. App. 210; 276 N.W.2d 558 (1979), another panel of this Court considered this identical issue and concluded that the defendant was not prejudiced by the use of the struck jury. However, the opinion did not discuss a number of cases that exist concerning the effect of a departure from the jury selection laws. In the most recent of these, People v Gratz, 35 Mich. App. 42; 192 N.W.2d 304 (1971), Judge, now Justice, LEVIN reversed defendant's conviction because of several violations of the Revised Judicature Act by the board compiling the jury list. The Court premised reversal of the conviction upon a fear that officials not trained in the law could shortcut procedures that appear to them to be unnecessary and upon his belief that it would be unfair to require a defendant to prove prejudice from these irregularities occurring outside court supervision. Several earlier cases cited in Gratz, supra, also have discussed statutory violations in the composition of the jury array and come to similar conclusions. See People v Tonnelier, 167 Mich. 638; 133 N.W. 510 (1911), Hewitt v Saginaw Circuit Judge, 71 Mich. 287; 39 N.W. 56 (1888). The above cases also involved substantial departures from statutory requirements.
The above considerations do not necessarily apply to the case at bar. First, we do not view the departure from the court rule as so substantial as to require automatic reversal. This view notwithstanding, we would agree that where the events constituting the alleged error occur prior to trial and outside court supervision, a defendant ought not be required to show prejudice before his challenge to the jury can be upheld. The difficulties of tracing prejudice in such cases is evident. By contrast, however, in a jury selection taking place in open court, counsel have the opportunity to scrutinize the proceedings and to create a record. To require a showing of prejudice in such cases would not be onerous.
We do not think the defendant has established prejudice warranting reversal. The court conducted a voir dire of all potential jurors, at times questioning them individually. Defendant did not submit additional questions for voir dire, although he had the opportunity to do so. Neither did counsel's initial confusion pervade the entire proceedings to prevent a competent voir dire. We therefore decline to reverse on this issue. We would, however, caution trial courts against reading our decision as an indorsement for the struck jury method. Indeed, in the interest of order and efficiency, we would prohibit its use and the confusion it tends to create in the trial of any future cases.
Defendant also argues that the use of a jury chosen on a one day-one case basis deprived him of trial by a seasoned and experienced jury chosen for 30-day jury duty. This argument is without merit. Were we to hold otherwise, the convictions of every defendant brought by juries sitting on the first day of the 30-day period would require reversal.
Defendant next contends that the trial court erred in admitting six prior felony convictions for impeachment purposes. The convictions complained of include three armed robbery convictions, in 1955, 1956, and 1964, and a prison escape conviction in 1966.
The trial court has the power to exercise its discretion to exclude prior convictions for impeachment purposes, and it is error for it to fail or to refuse to exercise it. People v Jackson, 391 Mich. 323, 336; 217 N.W.2d 22 (1974). The trial judge must identify his exercise of discretion, Boyd v Wyandotte, 402 Mich. 98, 103; 260 N.W.2d 439 (1977). However, the trial judge need not specifically state that he is exercising his discretion if the record is clear that he was aware that he possessed it. People v Makidon, 84 Mich. App. 287, 289; 269 N.W.2d 568 (1978).
In the instant case, the trial court excluded evidence of a prior conviction of a codefendant and carefully examined the record of the defendant prior to ruling on the motion to exclude. It is thus evident that the trial court was aware that it had the discretion to exclude evidence of the convictions; reversal is not warranted unless the court abused its discretion in admitting them. GCR 1963, 529.1.
Remoteness of prior convictions is clearly relevant in determining whether to admit prior convictions, since the more remote the conviction, the less probative it is on the issue of credibility. People v Penn, 71 Mich. App. 517, 519-521; 248 N.W.2d 602 (1976), lv den 400 Mich. 813 (1977), People v Gunter, 76 Mich. App. 483, 491; 257 N.W.2d 133 (1977), People v Robinson, 79 Mich. App. 145, 164-165; 261 N.W.2d 544 (1977), lv den 403 Mich. 814 (1978). Admission of remote convictions may indeed constitute abuse of discretion. Boyd v Wyandotte, supra, at 104.
However, we are convinced that any error that occurred was harmless. People v Adan, 83 Mich. App. 326, 334; 268 N.W.2d 397 (1978). The evidence against the defendant was overwhelming and he admitted taking the complainant's property. We cannot find, therefore, that even absent the error complained of, one juror might have voted to acquit. People v Adan, supra.
Defendant next argues that the trial court erred by refusing to give his requested instruction on larceny in a building. The court then instructed the jury on the original charge, unarmed robbery and larceny from a person.
Larceny in a building, although not a necessarily included offense of armed robbery, People v Ora Jones, 395 Mich. 379, 387; 236 N.W.2d 461 (1975), is a cognate lesser included offense. Larceny in a building is of the same class or category (theft offenses) as armed robbery, People v Ora Jones, supra. It is distinguished from the greater offense by its additional element that the theft occur in a building, and by the absence of the use of force. The evidence at trial established the larceny, its occurrence in a building and defendant's denial of the use of force. The trial court would thus have had a duty to charge under the rule enunciated in People v Chamblis, 395 Mich. 408, 423; 236 N.W.2d 473 (1975).
However, the court did instruct the jury on the lesser included offense of larceny from the person, which also involves larceny without force, although the property stolen must be in the possession or the immediate presence of the person. In convicting the defendant of the greater offense of unarmed robbery, it is evident the jury rejected defendant's theory that the larceny occurred without force. Because the jury was able to consider and rejected a lesser, similar charge incorporating the elements of larceny absent use of force, we conclude that the court's failure to charge the jury on larceny in a building constituted harmless error.
As to the issues remaining on appeal, we have reviewed the briefs and the record and conclude that reversal is not merited on any of these issues.
Defendant's conviction is affirmed.