People v. Poindexter , 138 Mich. App. 322 ( 1984 )

138 Mich. App. 322 (1984) 361 N.W.2d 346

PEOPLE
v.
POINDEXTER
PEOPLE
v.
FORT

Docket Nos. 72838, 73311.

Michigan Court of Appeals.

Decided October 15, 1984.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Frank J. Bernacki, Assistant Prosecuting Attorney (in Poindexter), and Jeffrey Caminsky, Assistant Prosecuting Attorney (in Fort), for the people.

Robert E. Slameka, for defendant Poindexter.

Rose Mary C. Robinson, for defendant Fort.

Before: T.M. BURNS, P.J., and M.J. KELLY and N.J. KAUFMAN,^[*] JJ.

N.J. KAUFMAN, J.

Defendants were convicted by jury of extortion, MCL 750.213; MSA 28.410, and were each sentenced to 5 to 20 years imprisonment. Defendant Fort was also convicted of felony-firearm, MCL 750.227b; MSA 28.424(2). Both defendants appeal as of right.

Eric Pasha testified that while at an arcade he overheard defendants discussing a plan to snatch his sister Crystal's purse and jewelry. As defendants approached Crystal, Eric grabbed defendant Fort and a fight ensued, during which defendant Fort was thrown through a window. A couple of weeks later, both defendants appeared at the Pasha residence and asked Eric's mother for $200 reimbursement to pay for the broken window. Mrs. Pasha testified that she told them she would pay half the bill if they showed her a receipt. Two or three days later, defendants telephoned the Pasha residence inquiring about the $200. When reminded of the receipt, one reportedly responded, "It's alright and I'll be around to get my money though."

Defendants continued to phone the Pasha residence demanding the $200. Finally on November 17, they told Mrs. Pasha, "We're coming to get our money and we're going to get our money today. We're coming nine-strong." Mrs. Pasha immediately phoned the police, who arrived in time to hear another phone call from defendants, demanding money. Eric, as instructed by the police, told defendants to come and get the money. When defendants arrived 40 minutes later, Eric gave them a package supposedly containing money; as soon as defendant Poindexter received it, the police interceded. After a struggle, the police arrested the defendants. Defendant Fort was found to be carrying a .22-caliber revolver in his jacket pocket.

Defendants first argue that they were denied their right to confrontation by the trial court's ruling that they could not impeach Eric Pasha with his prior juvenile record. The United States Supreme Court has ruled that the Sixth Amendment right to confrontation is paramount to the state's policy of protecting a juvenile offender, and any temporary embarrassment to the witness or his family resulting from the disclosure of his juvenile record is outweighed by a defendant's right to cross-examine witnesses effectively for possible bias. Davis v Alaska, 415 U.S. 308, 319; 94 S. Ct. 1105; 39 L. Ed. 2d 347 (1974).

Michigan has a statute similar to the juvenile protection statute at issue in Davis v Alaska. Michigan's statute reads:

"A disposition of any child under this chapter, or any evidence given in such case, shall not in any civil, criminal or any other cause or proceeding whatever in any court, be lawful or proper evidence against such child for any purpose whatever, except in subsequent cases against the same child under this chapter." MCL 712A.23; MSA 27.3178(598.23).

The purpose of the statute is to hide youthful errors from the full glare of the public by preventing a juvenile court conviction from subsequently discrediting the individual due to childhood actions. People v Pennington, 113 Mich. App. 688, 697; 318 NW2d 542 (1982), citing People v Smallwood, 306 Mich. 49; 10 NW2d 303 (1943). Thus the statute protects not only juveniles, but also adults with juvenile records. Although not revealed in the record, we assume Eric Pasha was no longer a juvenile at the time of this trial.

Our research has not yielded any Michigan cases discussing this statute's applicability to an impeachment by use of a juvenile record since Davis v Alaska was handed down. Earlier cases upheld impeachment of witnesses by cross-examination as to juvenile records, based on the holding in People v Smallwood, supra, that where the word of one person against another is determinative, all facts pertaining to the credibility of the principal witness should be brought out. In People v Davies, 34 Mich. App. 19; 190 NW2d 694 (1971), this Court expanded Smallwood to cases other than sexual offenses, reasoning that where the people's case turns on the credibility of a juvenile witness, there is no sound reason for excluding the history of juvenile offenses in a case not against that juvenile offender but against someone else whose liberty is at stake. Subsequent cases relied on Davies to reverse convictions of defendants who were not allowed to impeach key prosecution witnesses with their juvenile records. People v Basemore, 36 Mich. App. 256; 193 NW2d 335 (1971), People v Yacks, 38 Mich. App. 437; 196 NW2d 827 (1972), People v Meadows, 46 Mich. App. 741; 208 NW2d 593 (1973), People v Glover, 47 Mich. App. 454; 209 NW2d 533 (1973).

Michigan case law appears to be contrary to the general rule in other jurisdictions that a witness may not be impeached by use of the witness's juvenile court record. See Anno: Use of Judgment in Prior Juvenile Court Proceeding to Impeach Credibility of Witness, 63 ALR3d 1112, §§ 3, 4, pp 1120-1124.

But then in 1978, Michigan adopted MRE 609(d), identical to FRE 609(d), which reads:

"Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence."

This rule is broader than the statute but narrower than previous decisions. It has been relied on to prevent use of prior juvenile adjudications to impeach the credibility of a juvenile defendant. See In the Matter of Clabe Hunt, 407 Mich. 918 (1979).

In People v Hawkins, 58 Mich. App. 69; 226 NW2d 851 (1975), this Court emphasized that the Smallwood line of case did not go so far as to strip the statutory protection from every witness, nor did these cases limit the trial judge's discretion to control the scope of cross-examination of witnesses.

"Thus, the cases have all involved facts similar to Smallwood, allowing impeachment of a complainant in a one-against-one cases, or were cases in which the witness was described as a ``key witness' or as being a chief witness, indispensable, or otherwise crucial to the case. None of the cases involve a discussion of the duties of the trial judge in exercising his discretion, but we think it implicit in all of them that there is such a discretion which, in criminal cases, is to be exercised in favor of impeaching cross-examination, notwithstanding the protective statute, where the credibility of an accusatory witness is essential to conviction.

"We think it equally clear that in other situations, the trial judge is required to weigh the policy considerations of the statute against the need to attack credibility in the light of all of the circumstances of the case. The preliminary question addressed to the trial judge will be dual in nature, going both to the role of the witness in the trial and to the nature of the juvenile record of the witness. As to the first, the kind of testimony elicited from the witness and its purpose, whether it is accusatory, whether it is direct or circumstantial, whether it is corroborative or cumulative and to what degree, whether the witness is hostile or has an interest in the outcome of the case, are among the factors to be considered. As to the juvenile record, the court should consider not only what conduct was involved, but also the period of time which has since elapsed." 58 Mich. App. 74-75. (Footnotes omitted.) (Emphasis added.)

Hawkins was decided prior to Davis v Alaska, and does not consider the constitutional right to confrontation. However, its instruction that courts evaluate the role of the witness's testimony foreshadowed the analysis used in some post-Davis cases reviewing a trial court's decision to prohibit impeachment of a prosecution witness by use of juvenile adjudications. In Gonzales v State, 521 P2d 512 (Alas, 1974), cert den 419 U.S. 868; 95 S. Ct. 125; 42 L. Ed. 2d 106 (1974), the court affirmed the trial court's refusal to permit inquiry into prior juvenile adjudications, distinguishing the case from Davis by pointing out that impeachment of general credibility by prior convictions is of considerably less probative value than use of prior convictions to show bias, which was the case in Davis. The trial court's refusal was similarly upheld in People v Holsey, 30 Ill App 3d 716; 332 NE2d 699 (1975), because the minor was not the only witness to the crime, and other testimony greatly diminished the importance of the minor's testimony. The court stressed the continued vitality of the discretion of trial courts, reading Davis as requiring a balance of the importance of the youthful witness's testimony against the state's policy of preserving the anonymity of juvenile offenders.

In People v Bingham, 75 Ill App 3d 418; 31 Ill Dec 228; 394 NE2d 430 (1979), the court found it to be harmless error for the trial court to have excluded use of juvenile adjudications for impeachment purposes because the witness's testimony was not crucial, since the state offered other witnesses whose testimony was substantially similar to that of the witness-victim's.

Drawing a line between general attacks on credibility and exposing possible bias, prejudice or other motives of the witness was also upheld in State v Tolliver, 562 S.W.2d 714 (Mo App, 1978), the court approving a protective order which prohibited use of the witness's juvenile offense record for general impeachment but allowed use of the record to expose bias. Courts have also simply ruled that juvenile adjudications do not constitute convictions so are not within the rules of evidence permitting impeachment by use of prior convictions. Pallett v State, 269 Ind 396; 381 NE2d 452 (1978), State v Burr, 18 Ore App 494; 525 P2d 1067 (1974).

In the case before us, defendants do not argue that Eric Pasha's juvenile record might have revealed his bias, so, unlike in Davis, the record would have been used only as an attack on his general credibility. Defendants do consider him a key witness, urging that he was the only witness who established that defendant Fort made threats on the telephone. However, Eric's mother, father and sister all testified to having heard threats over the phone; the police did as well. They all heard Eric tell the callers to come over to get the money, and saw defendants appear at their door 40 minutes later. We do not find Eric Pasha's testimony to have been essential to conviction.

Following the approach suggested by Hawkins, supra, we next look at Eric Pasha's juvenile record. As the larceny charge did not result in a conviction, it would not be admissible to attack the credibility of Eric if he were an adult, and so it was properly excluded. MRE 609(d). Similarly, Eric Pasha's status as youthful trainee under the Holmes Youthful Trainee Act is not a conviction, MCL 762.14; MSA 28.853(14), and may not be used for impeachment purposes. People v Crutchfield, 62 Mich. App. 149; 233 NW2d 507 (1975), lv den 395 Mich. 758 (1975).

The only item on Eric Pasha's juvenile record that could have been used to impeach him was a 1977 conviction for unlawfully driving away an automobile, MCL 750.413; MSA 28.645. That conviction was six years old at the time of this trial. The trial court ruled that, since intent to steal is not a necessary element of this crime, it is not a theft crime which could be used to impeach. The trial court was correct in ruling that intent to steal is not an element of the crime. People v Davis, 36 Mich. App. 164; 193 NW2d 393 (1971). However, this Court has held that, because it is a felony, its use for impeachment purposes is within the discretion of the trial court under MRE 609. People v Bernard Smith, 81 Mich. App. 561, 569; 266 NW2d 40 (1978), rev'd on other grounds 406 Mich. 926 (1979). As the Davis decision confirmed prior Michigan case law permitting impeachment by the use of juvenile offenses, we conclude that the trial court abused its discretion in refusing to permit impeachment with this juvenile conviction. However, considering the age of this conviction and our determination that Eric Pasha's testimony was not crucial at trial, the error was harmless — we do not think any reasonable juror would have voted differently had they known of Eric Pasha's juvenile record.

Defendant Fort's contention that the trial court erred by not conducting a hearing regarding Eric Pasha's use of aliases has not been preserved for appeal, as it was only defendant Poindexter's counsel who objected below, and he has not raised this issue on appeal. People v Diaz, 98 Mich. App. 675; 296 NW2d 337 (1980).

Defendant Fort argues that the trial court should have granted his motion for directed verdict on the felony-firearm charge against him, as the underlying felony, extortion, is complete at the time of the threat.

The elements of extortion are:

"1) a communication, 2) threatening accusation of any crime or offense or any injury to the person or property or mother, father, husband, wife, or child of another, 3) with intent thereby to extort money or pecuniary advantage as to compel the person so threatened to do or refrain from doing an act against his will." People v Krist, 97 Mich. App. 669, 675; 296 NW2d 139 (1980), lv den 409 Mich. 936 (1980).

The statute does not require an overt act to carry out the threat. People v Bruno, 30 Mich. App. 375, 383; 186 NW2d 339 (1971). The crime is complete before the money is handed over. People v Percin, 330 Mich. 94, 101; 47 NW2d 29 (1951). But receipt of the money is certainly evidence of the extortionist's intent. A person who has a firearm in his possession at the time he commits a felony is guilty under the felony-firearm statute. MCL 750.227b; MSA 28.424(2). This Court has upheld felony-murder convictions where the murder was committed after the felony but was part of a continuous transaction or connected with the underlying felony. People v Smith, 55 Mich. App. 184; 222 NW2d 172 (1974), aff'd in part 396 Mich. 825; 238 NW2d 536 (1976), People v Goddard, 135 Mich. App. 128; 352 NW2d 367 (1984). Defendant Fort appeared at Eric Pasha's door just 40 minutes after threatening him on the phone. We conclude that it was a continuous transaction, carrying through on his threats, and satisfied the felony-firearm statute.

Defendant Fort also argues that his waiver of the production of certain witnesses was not done knowingly because he was not advised of his constitutional right to confront witnesses. Defendant did not cite any cases for this proposition, nor do we find any. The record indicates that the trial court specifically asked defendant whether he agreed with his attorney's decision to waive production of the witnesses, and each time defendant answered affirmatively. We find no error.

Finally, defendant Fort argues that his felony-firearm conviction is infirm because operability of the firearm, an essential element, was never proven. Defendant is mistaken — operability is not, and never has been, an element of felony-firearm, as repeated most recently by this Court in People v Brooks, 135 Mich. App. 193; 353 NW2d 118 (1984); see also People v Broach, 126 Mich. App. 711; 337 NW2d 642 (1983), and cases cited therein. These holdings are not, as defendant argues, contrary to Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 NW2d 793 (1979). See People v Pierce, 119 Mich. App. 780, 782; 327 NW2d 359 (1982).

Affirmed.

NOTES

[*] Former Court of Appeals Judge, sitting on the Court of Appeals by assignment.