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Docket Number

Docket No. 63478.

Attorney(S)

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Rosemary A. Gordon, Assistant Prosecuting Attorney, for the people. State Appellate Defender (by Chari Grove), for defendant on appeal.

Judges

PER CURIAM.

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Smart Summary

People v. Stokes, Michigan Court of Appeals, Docket No. 63478 (Dec. 22, 1984) — Per Curiam

Factual and Procedural Background

Defendant was charged with assault with intent to commit murder (MCL 750.83; MSA 28.278). Following a jury trial, defendant was convicted of the lesser offense of assault with intent to do great bodily harm less than murder (MCL 750.84; MSA 28.279). Defendant was sentenced to a prison term of from 6 to 10 years and appealed as of right. Leave to appeal was applied for. The opinion resolves several issues raised on appeal and affirms the conviction and sentence.

Legal Issues Presented

Whether the trial court abused its discretion by admitting, for impeachment purposes, evidence of defendant's 1977 conviction for assault with intent to commit murder.
Whether the prosecution exercised due diligence in attempting to produce an alleged res gestae witness known only as "Bull."
Whether several alleged jury instructional errors (including burden of proof as to self-defense, intent required for felonious assault, the present ability element of assault, and the instruction on reasonable doubt) amounted to manifest injustice warranting reversal despite a failure to object at trial.

Arguments of the Parties

Appellant's (Defendant's) Arguments

The trial court abused its discretion by admitting his 1977 conviction for assault with intent to commit murder for impeachment purposes.
The prosecution failed to exercise due diligence in attempting to locate an identified res gestae witness known as "Bull."
The trial court committed several instructional errors that, the defendant contends, resulted in reversible error.

Respondent's (People's) Position (as reflected in the opinion)

The prosecution (and trial court) treated the prior conviction as admissible impeachment evidence and the trial court placed its reasons on the record under MRE 609(a).
In response to learning of "Bull," the police went that evening to the Kronk Center and questioned several people including the center's director; the prosecution presented that it had acted reasonably to locate the witness and the trial court so found after a due diligence hearing.
The prosecution maintained that no instructional error produced manifest injustice and that, read as a whole, the jury instructions were adequate.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v Jackson, 391 Mich. 323; 217 N.W.2d 22 (1974)	Authority on the trial court's exercise of discretion under MRE 609(a) and placing reasons on the record.	The court found the trial court had exercised its discretion on the record as required and did not abuse that discretion in admitting the prior conviction for impeachment.
People v Pedrin, 130 Mich. App. 86; 343 N.W.2d 243 (1983)	Statement that admission of a defendant's prior conviction similar/identical to the charged crime does not per se result in reversible error.	Used to support the proposition that such admission is not automatically reversible error.
People v Carpenter, 120 Mich. App. 574, 581; 327 N.W.2d 523 (1982)	Also supports that admission of similar prior convictions is not per se reversible error.	Applied as part of the body of authority permitting admission under appropriate circumstances.
People v Monasterski, 105 Mich. App. 645, 655; 307 N.W.2d 394 (1981), lv den 411 Mich. 1017 (1981)	Same general proposition regarding prior conviction evidence and admissibility.	Included in the court's discussion that prior conviction admission does not automatically require reversal.
People v Williams, 413 Mich. 72; 318 N.W.2d 462 (1982)	When similarity weighs against admission, the prejudicial effect must be balanced against: probative value to credibility and the effect on defendant's decision to testify.	The court applied this balancing framework and distinguished Williams because, in this case, defendant testified knowing the evidence would be admitted and there was no apparent effect on his decision to testify.
People v Rush, 118 Mich. App. 236, 239-240; 324 N.W.2d 586 (1982)	Supports the Williams balancing approach regarding prior convictions and impeachment.	Referenced as part of the balancing analysis; the court considered these factors in upholding admission.
People v Joseph LeFlore (After Remand), 122 Mich. App. 314, 318; 333 N.W.2d 47 (1983)	Prosecution must do everything reasonable, not everything possible, to locate a res gestae witness.	Applied to uphold the trial court's finding that the prosecution had exercised due diligence in attempting to locate "Bull."
People v Moreno, 112 Mich. App. 631, 637; 317 N.W.2d 201 (1981)	Also supports the standard that the prosecution must do everything reasonable to locate a res gestae witness.	Applied along with LeFlore to support the due diligence finding.
People v Sommerville, 100 Mich. App. 470, 479; 299 N.W.2d 387 (1980), lv den 417 Mich. 1022 (1983)	Failure to preserve objections at trial generally precludes appellate review unless manifest injustice is shown.	The court applied the Sommerville standard and declined to consider unpreserved instructional objections absent manifest injustice.
People v Dupie, 395 Mich. 483, 488; 236 N.W.2d 494 (1975)	Instructions must be considered in their entirety when evaluating alleged instructional error.	The court reviewed the jury instructions as a whole and found no reversible error from the instructions taken in context.
People v Jackson, 390 Mich. 621; 212 N.W.2d 918 (1973)	Authority cited in relation to the prosecution's burden to prove that defendant did not act in self-defense.	The court concluded there was no erroneous shifting of the burden; the instructions made clear the prosecution had to prove defendant did not act in self-defense.
People v Joeseype Johnson, 407 Mich. 196; 284 N.W.2d 718 (1979)	Instructional requirement regarding the intent necessary to convict for felonious assault.	The court acknowledged the trial court failed to properly instruct on this intent but found no manifest injustice because defendant was convicted of a greater offense.

Court's Reasoning and Analysis

The court addressed each contested matter by applying established standards and precedents from Michigan authority and the rules referenced in the record.

1. Admission of Prior Conviction for Impeachment

The trial court admitted evidence of defendant's 1977 conviction for assault with intent to commit murder for impeachment. The appellate court found that the trial court had exercised its MRE 609(a) discretion on the record by considering the probative value of the evidence and the fact that the prior conviction was identical to the crime charged. The court recognized that another judge might have excluded the evidence, but concluded that the admission did not constitute an abuse of discretion under the standards announced in the cited authorities.

The court reiterated that admission of a prior conviction similar to the charged crime does not automatically require reversal. Where similarity weighs against admission, the court must balance the prejudicial effect against (1) the extent to which the prior crime is probative of credibility and (2) the effect of admission on the defendant's decision to testify. Applying that balancing framework, the court emphasized that defendant testified at trial with knowledge the evidence would be admitted, and there was no apparent effect on the decision to testify. The court also noted defense counsel's on-the-record stipulation as to the nature of the prior conviction and declined to permit reversal based on an error intentionally introduced into the record by defense counsel.

2. Due Diligence in Locating Res Gestae Witness "Bull"

The appellate court summarized the relevant events: during trial the prosecution first learned of "Bull"; a witness reported that "Bull" often played basketball at the Kronk Center; police went to the Kronk Center that evening and questioned several people including the director without success; the next day the defendant requested and was granted a due diligence hearing after which the trial court found the prosecution had exercised due diligence.

Reviewing that factual record, the appellate court applied the authority that requires the prosecution to do everything reasonable (not everything possible) to locate a res gestae witness. The court found no abuse of discretion in the trial court's finding that the prosecution's efforts were reasonable, even though the police did not check a house that "Bull" allegedly visited on occasion.

3. Alleged Instructional Errors

Because defendant did not object to the instructions at trial, the appellate court considered the claimed errors only under the manifest injustice standard. The court reviewed the instructions in their entirety.

On self-defense, while the introductory phrasing could have been clearer, the court found the overall instruction conveyed the correct burden: it was not for defendant to prove self-defense beyond a reasonable doubt; rather, the prosecution had to prove defendant did not act in self-defense.

Regarding the intent required for felonious assault, the court acknowledged the trial court failed to properly instruct per the cited authority. Nonetheless, the appellate court determined no manifest injustice resulted because defendant was convicted of a greater offense.

The court also observed that although the trial court did not precisely state that an element of assault is the defendant's present ability to commit violence, that concept was apparent from the instructions taken as a whole and the undisputed facts (possession of a knife and close proximity to the complainant) made any omission nonprejudicial.

Finally, the court noted one isolated misstatement in the reasonable doubt instruction but concluded the charge as a whole accurately conveyed the jury's duty to acquit unless guilt was proven beyond a reasonable doubt.

Holding and Implications

HOLDING: The judgment of conviction and sentence are AFFIRMED.

Implications:

Direct effect on the parties: Defendant's conviction for assault with intent to do great bodily harm less than murder and the sentence of 6 to 10 years in prison were affirmed by the Court of Appeals.
No broader or new legal precedent is announced by this opinion; the court applied existing Michigan authority on impeachment, due diligence for res gestae witnesses, and the standards for reviewing unpreserved instructional errors (manifest injustice, review of instructions as a whole).

This summary is based exclusively on the content of the provided opinion and does not add materials or inferences beyond that text.

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PEOPLE v STOKES

PER CURIAM.

Defendant was charged with assault with intent to commit murder, MCL 750.83; MSA 28.278. Following a jury trial, defendant was convicted of the lesser offense of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279. He was sentenced to a term of from 6 to 10 years in prison and appeals as of right. Several issues are raised on appeal, none of which require reversal.

Defendant first argues that the trial court abused its discretion in admitting for impeachment purposes evidence of his 1977 conviction of assault with intent to commit murder, MCL 750.83; MSA 28.278. We find, however, that the trial court exercised its discretion on the record as required under MRE 609(a) by considering the probative nature of the evidence as well as the fact that the prior conviction was for a crime identical to the crime charged. Moreover, while we recognize that another trial judge may have excluded, in the proper exercise of his or her discretion, the same prior conviction evidence, we cannot say that the trial court's decision here constitutes an abuse of discretion. People v Jackson, 391 Mich. 323; 217 N.W.2d 22 (1974).

The admission of evidence of a defendant's prior conviction for a crime similar or identical to the crime charged does not per se result in reversible error. People v Pedrin, 130 Mich. App. 86; 343 N.W.2d 243 (1983); People v Carpenter, 120 Mich. App. 574, 581; 327 N.W.2d 523 (1982); People v Monasterski, 105 Mich. App. 645, 655; 307 N.W.2d 394 (1981), lv den 411 Mich. 1017 (1981). Where similarity weighs against admission, the prejudicial effect of that evidence must be balanced against two other factors: the extent to which the crime is probative of credibility and the effect of admission of the evidence on defendant's decision not to testify. People v Williams, 413 Mich. 72;318 N.W.2d 462 (1982); People v Rush, 118 Mich. App. 236, 239-240; 324 N.W.2d 586 (1982). While in this case the prior conviction did not involve a crime of theft and was therefore not actually probative of defendant's credibility, defendant did testify at trial knowing that the evidence would be admitted. The fact that the trial court's decision had no apparent effect on defendant's decision to testify distinguishes this case from People v Williams, supra, upon which defendant relies in arguing that reversal is mandated. We further note that, while there is some suggestion that defendant's prior conviction was not for the crime of assault with intent to commit murder, defense counsel stipulated on the record that such was the nature of the conviction. We will not allow defendant to obtain reversal on error intentionally introduced into the record.

Defendant secondly contends that the trial court abused its discretion in finding that the prosecution had exercised due diligence in attempting to produce an alleged res gestae witness at trial. During the testimony of a prosecution witness, the police and prosecutor were first made aware of the presence at the scene of the crime of a man known only as "Bull". Upon being informed by the witness that "Bull" frequently played basketball at the Kronk Center, the police went to the center that evening and questioned several people, including the director, with no success. On the next day of trial, the defendant moved for and was granted a due diligence hearing, following which the trial court ruled that the prosecution had exercised due diligence in attempting to locate the missing witness.

We find no abuse of discretion in the trial court's finding of due diligence. Although the police did not make inquiries at a house allegedly visited on occasion by "Bull", the prosecution is required to do everything reasonable, rather than everything possible, in locating a res gestae witness. People v Joseph LeFlore (After Remand), 122 Mich. App. 314, 318; 333 N.W.2d 47 (1983); People v Moreno, 112 Mich. App. 631, 637; 317 N.W.2d 201 (1981). We agree with the trial court that the prosecution did everything reasonable in this case to locate "Bull".

Finally, defendant objects to several alleged instructional errors which he contends resulted in reversible error. Inasmuch as defendant failed to preserve any of these issues by objecting at trial, we will not consider them on appeal absent a showing of manifest injustice. People v Sommerville, 100 Mich. App. 470, 479; 299 N.W.2d 387 (1980), lv den 417 Mich. 1022 (1983). We are not persuaded that instructional error resulted in manifest injustice in this case.

Viewing the instructions in their entirety, People v Dupie, 395 Mich. 483, 488; 236 N.W.2d 494 (1975), we first find that the court did not erroneously instruct on the prosecution's burden of proving that defendant did not act in self-defense. People v Jackson, 390 Mich. 621; 212 N.W.2d 918 (1973). While the trial court's introduction to the theory of self-defense could have been better stated, the clear message of the instruction is that "[i]t is not for Mr. Stokes to prove to you beyond a reasonable doubt that he acted in self-defense, it is for the prosecution to prove that he did not".

While the trial court failed to properly instruct the jury on the intent required to convict on felonious assault, see People v Joeseype Johnson, 407 Mich. 196; 284 N.W.2d 718 (1979), we find no manifest injustice inasmuch as defendant was convicted of a greater offense.

Although the trial court did not precisely state that one element of assault is the present ability of defendant to commit violence against the complainant, that message is clearly apparent from the trial court's instruction when read as a whole. The trial court explained that an example of an offer of violence is a person raising a fist at another person who is standing nearby. Given the undisputed facts that defendant possessed a knife at the time of the assault and that defendant and the complainant stood in close proximity to each other, we find no manifest injustice in the trial court's omission of the present ability language.

Finally, we find no manifest injustice in the trial court's instruction on guilt beyond a reasonable doubt. While there appears to be one isolated misstatement in the instruction, the instruction in its entirety is accurate and consistently refers to the jury's duty to acquit defendant unless guilt is proven beyond a reasonable doubt.

Affirmed.

PEOPLE v. STOKES