People v. Sanders

394 Mich. 439 (1975) 231 N.W.2d 639

PEOPLE
v.
SANDERS

Docket No. 54648.

Supreme Court of Michigan.

Decided July 23, 1975.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and James M. Justin, Assistant Prosecuting Attorney, for the people.

Jerome A. Susskind for defendant.

MEMORANDUM OPINION. The defendant was convicted by a jury of second-degree murder. The Court of Appeals reversed and remanded for a new trial. People v Sanders, 43 Mich. App. 698; 204 NW2d 706 (1972). We grant leave to appeal and sua sponte, pursuant to GCR 1963, 865.1(7), reverse the Court of Appeals and affirm the conviction.

There were three opinions in the Court of Appeals, two for reversal and remand for a new trial, one for affirmance. One of the opinions for reversal and remand found error in the cross-examination of the defendant to impeach credibility based on an arrest which was not shown to have resulted in a conviction. The other opinion for reversal and remand found error in the cross-examination to impeach credibility based on convictions of misdemeanors.

In People v Falkner, 389 Mich. 682; 209 NW2d 193 (1973), and People v Rappuhn, 390 Mich. 266; 212 NW2d 205 (1973), this Court held that the credibility of a witness may not be impeached by reference to an arrest which does not result in conviction. In People v Renno, 392 Mich. 45; 219 NW2d 422 (1974), this Court held that the credibility of a defendant in a criminal case may not be impeached by reference to "municipal ordinance or misdemeanor convictions".

In this case, on direct examination, defendant acknowledged that he had spent five years in prison (cf. People v Rappuhn, supra) for the offense of unarmed robbery committed in 1965 in Jersey City, New Jersey. On cross-examination the following questions were posed and answers elicited:

"Q. Weren't you arrested and convicted of armed robbery in Jersey City?

"A. No, I was not.

"Q. Weren't you arrested in Trenton, New Jersey, in 1966 for robbery?

"A. No, I was not.

"Q. It's your statement that you were arrested just once and convicted once, then, of unarmed robbery in Jersey City?

"A. Yes.

"Q. You don't want to reconsider that answer?

"A. Reconsider it?

"Q. Uh-huh.

"A. No."

The cross-examination appears to have been in good faith. The defendant's conviction preceded Falkner and Rappuhn. A "rap sheet" appeared at first glance to show that defendant had been convicted and imprisoned for a robbery committed in Trenton, New Jersey, in 1966.

Reference was also made on cross-examination to defendant's prior misdemeanor convictions of being a disorderly person. However, Renno will not be applied retroactively except in cases where all the following criteria are met: (i) there was no impeachment by reference to a conviction of a felony and (ii) the impeachment by reference to conviction of a misdemeanor occurred first on cross-examination and (iii) the issue was preserved for appeal by proper and timely objection and (iv) the judgment of conviction is pending on appeal or appealable as of right or an application for leave to appeal to this Court has been or can be timely filed. Otherwise, Renno will be applied to those cross-examinations occurring after the decisional date of Renno, supra. People v Steiner, 392 Mich. 783 (1974); People v Whitmore, 392 Mich. 785 (1974); and People v McDaniel, 392 Mich. 786 (1974), to the extent inconsistent with this opinion, will not be followed.

The Court of Appeals is reversed. The defendant's conviction is affirmed.

T.G. KAVANAGH, C.J., and WILLIAMS, LEVIN, M.S. COLEMAN, J.W. FITZGERALD, and LINDEMER, JJ., concurred.

SWAINSON, J., took no part in the decision of this case.