People v. Hubbard

159 Mich. App. 321 (1987) 406 N.W.2d 287

PEOPLE
v.
HUBBARD

Docket No. 83460.

Michigan Court of Appeals.

Decided April 20, 1987.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division, Research, Training and Appeals, and Virginia J. Hazen, Assistant Prosecuting Attorney, for the people.

Craig A. Daly, for defendant on appeal.

Before: BRONSON, P.J., and BEASLEY and C.L. HORN,^[*] JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and was sentenced to a term of from ten to thirty years in prison. Defendant appeals as of right, raising four claims of error.

Defendant first argues that the trial court erred by ruling on the admissibility of evidence of defendant's prior convictions after defendant had testified on direct examination, and by allowing the prosecutor to choose which of defendant's prior convictions would be used for impeachment. Just prior to defendant's taking the stand, the prosecutor sought a ruling on the admissibility of defendant's prior convictions. The prosecutor sought to impeach defendant with evidence of his 1974 convictions for attempted armed robbery and assault with intent to commit armed robbery, as well as his 1978 misdemeanor conviction for larceny under $100. Defense counsel objected to the use of the 1974 convictions because the defendant was a juvenile in 1974, although he had been tried as an adult. Due to both parties' inability to cite any applicable law, the trial judge requested that the parties research the issue. In the meantime, defendant was allowed to testify on direct examination. Prior to cross-examination, the trial judge ruled that the prosecutor could use evidence of defendant's misdemeanor larceny conviction and evidence of either the attempted armed robbery conviction or the assault with intent to commit armed robbery conviction for impeachment. Defendant now claims that this was error.

In support of his claim of error, defendant relies on People v Ash, 128 Mich App 265, 268-269; 340 NW2d 646 (1983), in which one panel of this Court stated:

Defendant was entitled to know before he took the stand whether evidence of his prior record would be used for impeachment. People v Hayes, 410 Mich 422, 426-427; 301 NW2d 828 (1981). Furthermore, it was the prosecutor's responsibility, not defendant's, to insist on a ruling on the issue before defendant took the stand. People v Lytal, 415 Mich 603, 609-610; 329 NW2d 738 (1982).

We note that in Ash defense counsel was unaware of the prosecutor's intent to use evidence of the defendant's prior conviction for impeachment until after the defendant had taken the stand. In the instant case, however, defense counsel was aware of the prosecutor's intent to impeach defendant with evidence of his prior convictions and also knew that the trial court planned to hold its ruling on admissibility in abeyance while the parties researched the issue. Under these circumstances, we decline to follow the rule set forth in Ash.

We disagree with the blanket holding in Ash, supra, pp 268-269, that a defendant is entitled to know before taking the stand whether evidence of a prior conviction will be used for impeachment. Such a holding would add a procedural requirement not contained in MRE 609 itself. The authority cited by the Ash Court in support of this holding is People v Lytal, 415 Mich 603, 609-610; 329 NW2d 738 (1982). However, we conclude that the Ash Court's reliance on Lytal is misplaced.

In Lytal, the trial judge reserved ruling on the prosecutor's motion to admit evidence of a prior conviction until after the defendant testified. The trial judge decided that his ruling on the motion was dependent on the defendant's testimony. Evidence of the defendant's prior conviction was ultimately admitted. In reviewing the case, our Supreme Court held that the defendant was entitled to know, before he took the stand, whether evidence of his prior conviction could be used for impeachment purposes. Lytal, supra, p 609, citing People v Hayes, 410 Mich 422, 426-427; 301 NW2d 828 (1981). We note that although this language can be found in Hayes, it should be read in context with the holding in that case (where our Supreme Court held that it was an impermissible abdication of judicial discretion when the trial judge insisted that the defendant not impeach the prosecutor's witnesses with evidence of prior convictions as a quid pro quo for the prosecutor's promise not to impeach defendant's witnesses with evidence of prior convictions). The Lytal Court further held that the defendant had not waived his objection to the use of evidence of the prior conviction for impeachment by not insisting on a ruling prior to the defendant's taking the stand because the trial judge had specifically indicated he would not rule on the admissibility of such evidence until he had heard the defendant's testimony. Lytal, supra, pp 609-610. The Court concluded that defense counsel's insistence on a ruling would have antagonized the trial judge. The basic holding of Lytal on this issue was that the trial judge may not reserve his ruling on admissibility of evidence of prior convictions depending upon the defendant's testimony. Nowhere in Lytal is the principle relied on in Ash espoused.

In addition, nothing in MRE 609 indicates who must initiate the trial court's determination on the admissibility of evidence of prior convictions for impeachment. We decline to adopt the Ash Court's placement of the burden upon the prosecutor in all instances. The defendant, here, was afforded procedural due process.

Further, after reviewing the record, we conclude that the trial court complied with the requirements of MRE 609(a)(2) by weighing the probative value of the evidence of defendant's prior convictions with its prejudicial effect and determining that such evidence was admissible for impeachment. In addition, the trial judge did not abdicate his discretion by allowing the prosecutor to choose which of defendant's 1974 convictions would be used for impeachment. The trial judge had already determined that evidence of the convictions was admissible, but chose to limit the number of prior convictions used to impeach. Allowing the prosecutor to choose which one of the two prior convictions to use for impeachment is not error.

Next, defendant argues that the trial court erred by allowing the examining physician to testify that her examination of the victim revealed evidence of trauma consistent with forceful penetration. We disagree. The examining physician in a criminal sexual conduct case is a proper witness as long as his or her testimony may assist the jurors in their determination of the existence of either of two crucial elements of the crime charged, (1) penetration itself and (2) penetration against the will of the victim. People v McGillen #2, 392 Mich 278, 284; 220 NW2d 689 (1974); People v Byrd, 133 Mich App 767, 779; 350 NW2d 802 (1984). The testimony presented here was proper and did not violate the rules set forth in McGillen #2.

The third issue to be considered is whether the trial court abused its discretion in allowing certain evidence to be presented by the prosecution in rebuttal. During rebuttal, the prosecutor questioned the officer in charge as to whether the victim had a criminal record. Defense counsel did not object to this line of questioning. On appeal, defendant claims that this questioning constituted improper rebuttal evidence requiring reversal. We disagree. The decision to admit evidence in rebuttal rests within the trial court's discretion. People v Eggleston, 148 Mich App 494, 503; 384 NW2d 811 (1986). If evidence is improperly admitted during rebuttal, reversal is required only if the error was so egregious as to result in a miscarriage of justice. Eggleston, supra, citing People v Etchison, 123 Mich App 448, 451; 333 NW2d 309 (1983). Although we question the propriety of the evidence admitted here, we find that the error was not so egregious as to result in a miscarriage of justice. Therefore, reversal is not warranted.

Finally, defendant claims that he was denied a fair trial because of the prosecutor's improper closing arguments. Once again, we note that defense counsel failed to object to any of these allegedly improper remarks. Appellate review is therefore precluded unless the prejudicial effect was so great that it could not have been cured by an appropriate instruction and failure to consider the issue would result in a miscarriage of justice. People v Federico, 146 Mich App 776, 794; 381 NW2d 819 (1985). We have reviewed the record in this case, and conclude that the prosecutor's closing argument did not deny defendant his right to a fair trial.

Affirmed.

BRONSON, P.J., did not participate.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.