People v. Slager

105 Mich. App. 593 (1981) 307 N.W.2d 376 PEOPLE v. SLAGER Docket No. 48688. Michigan Court of Appeals. Decided April 21, 1981. Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, and Michael H. Dzialowski, Principal Appellate Attorney, for the people. Dauden, Tucker & Basch, for defendant. Before: T.M. BURNS, P.J., and ALLEN and D.F. WALSH, JJ. ALLEN, J. On November 15, 1978, defendant was convicted by a jury of felonious assault in violation of MCL 750.82; MSA 28.277. Immediately after the jury's verdict, defendant entered a plea of guilty to the supplemental information charing him as a second offender. Defendant was sentenced on January 8, 1979, to serve three months total confinement, three months in a work release program, and, thereafter, four and one-half years probation. Defendant appeals as of right. Defendant's first claim of error is that the trial court improperly allowed the use of his prior conviction for impeachment purposes. As a preliminary matter, MRE 609(b) prohibits the use of prior convictions "if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement *596 imposed for that conviction, whichever is the later date". (Emphasis supplied.) It is undisputed that defendant was released from imprisonment from his prior conviction in 1973. Therefore, no time limit problem exists with the use of this conviction. Although defendant maintains that the trial court abused its discretion in allowing evidence of the prior conviction, a review of the lower court record clearly indicates that the trial court weighed the probative value against the prejudical effect upon the defendant and determined that the probative value exceeded the prejudicial effect. The trial court correctly indicated on the record that the similarity of the prior conviction (second-degree murder) increased its prejudical effect and weighed against admission. Equally correct, the trial court indicated that the prior conviction was probative of defendant's credibility. The trial court exercised its discretion and determined that the probative value exceeded the prejudical effect. We cannot say that the trial court clearly abused its discretion in so doing. We take this opportunity to address defendant's suggestion that the prosecution be limited to the single question (Have you ever been convicted of a felony?) when using prior convictions for impeachment purposes. Defendant cites the case of People v Hollis, 96 Mich App 333; 292 NW2d 538 (1980), in support of his position.[1]Hollis, 340, fn 12, does indeed suggest this as a viable alternative. See also People v Moseley, 94 Mich App 461, 464; 290 NW2d 39 (1979). However, we believe that Hollis and Moseley are incorrect in this regard. Michigan *597 case law is clear in holding that it is error to impeach with evidence of an unspecified felony. People v Dixon, 99 Mich App 847; 298 NW2d 647 (1980), People v Graves, 98 Mich App 112, 117; 296 NW2d 4 (1980), People v Vincent, 94 Mich App 626, 633-634; 288 NW2d 670 (1980), People v Garth, 93 Mich App 308, 315-316; 287 NW2d 216 (1979), People v Jones, 92 Mich App 100, 113; 284 NW2d 501 (1979). Defendant's second claim of error is that the trial court erred in refusing to instruct on the lesser included offenses of assault and battery and malicious destruction of property under $100. However, both assault and battery and malicious destruction of property under $100, MCL 750.81; MSA 28.276 and MCL 750.377a; MSA 28.609(1) respectively, are misdemeanors with maximum imprisonment of 90 days, MCL 750.504; MSA 28.772. As such, the trial court properly refused to instruct on either following the Supreme Court mandate of People v Chamblis, 395 Mich 408, 429; 236 NW2d 473 (1975), which stated: "We are establishing a rule today, as a matter of policy, limiting the extent of compromise allowable to a jury in deciding whether to convict of a lesser included offense. In any case wherein the charged offense is punishable by incarceration for more than two years, the court, whether or not requested, may not instruct on lesser included offenses for which the maximum allowable incarceration period is one year or less." Defendant's citation to People v Miller, 406 Mich 244; 277 NW2d 630 (1979), is inappropriate. The sole exception to Chamblis created by Miller is restricted to allowing a trial court to instruct the jury on a lesser included misdemeanor offense of receiving and concealing property with a value *598 of $100 or less if the value of the property involved is the only element which separates the misdemeanor from the felony charged. Miller, supra, 251. Futhermore, the Miller opinion was held to be effective only for trials commencing after May 31, 1979. Id. Defendant next argues that, although he did not request the trial court to instruct the jury that felonious assault was a specific intent crime and although he did not object to the instructions as given, reversal is mandated by the retroactive application of People v Joeseype Johnson, 407 Mich 196; 284 NW2d 718 (1979), which held that felonious assault is a specific intent crime. The crucial question is whether Joeseype Johnson clarifies existing law and consequently is retroactive in application[2] or whether the holding is only prospective under the principles announced in People v Hampton, 384 Mich 669; 187 NW2d 404 (1971). Different panels of this Court have reached different results. In People v Starghill, 99 Mich App 790, 792; 298 NW2d 641 (1980), this Court held: "However, Joeseype Johnson was decided on October 29, 1979, after defendant's conviction. We decline to apply it retroactively in these circumstances. See People v Hampton, 384 Mich 669; 187 NW2d 404 (1971). Therefore, we review the trial court's decision under prior law." On the other hand, when faced with the identical issue, a different panel of this Court concluded in People v Szymanski, 102 Mich App 745, 747; 302 NW2d 316 (1981): "We agree that Joeseype Johnson constitutes a restatement *599 and clarification of previously existing Michigan case law and is therefore fully applicable to the instant case. No problem of limiting the application of a new rule of law arises under such circumstances." In both Starghill and Szymanski the issue of specific intent has been raised in the trial court. In People v Ideis, 101 Mich App 179; 300 NW2d 489 (1980), and People v Braddock, 106 Mich App 11; ___ NW2d ___ (1980), the issue of specific intent was not raised in the trial court. The Ideis majority opinion concluded that this Court is not precluded from considering the claim of error on appeal and found that Joeseype Johnson did not announce a new rule but merely clarified existing law and was entitled to retroactive effect. Judge BASHARA dissented, relying on Starghill, supra, for holding that Joeseype Johnson should not be applied retroactively. In Braddock, supra, 14, a unanimous panel considered both the Starghill and Szymanski decisions and held that: "We are persuaded that the better logic is expressed in Starghill. Our conclusion is reinforced by the fact that, in the instant case, no exception was taken at trial to the court's failure to instruct the jury that felonious assault was a specific intent crime. Under such circumstances, it is not necessary to decide whether Joeseype Johnson should be given retroactive application." We believe the Braddock decision is correct and adopt its conclusion as our own. Defendant attempts to raise the issue of insufficiency of the evidence on appeal. While we find the evidence sufficient to support the jury verdict, we need not reach this decision. Defendant has not cited any authority in support of this claim of *600 error. "A party `may not leave it to this Court "to search for authority" to sustain or reject its position'. * * * A statement of position without supporting citations is insufficient to bring an issue before this Court." Kucken v Hygrade Food Products Corp, 51 Mich App 471, 473; 215 NW2d 772 (1974). See also Stanek v Bergeon, 89 Mich App 283; 279 NW2d 296 (1979). Defendant's last claim of error is that the sentencing court abused its discretion in denying his motion to withdraw his guilty plea to the supplemental information. Defendant made his motion at the sentencing hearing shortly before he was sentenced. After listening to defendant's motion and the prosecutor's comments, the sentencing court denied the motion. In order to have an abuse of discretion, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias. People v Erb, 48 Mich App 622, 625-626; 211 NW2d 51 (1973). In determining whether there was an abuse of discretion, this Court notes both that motions to withdraw pleas prior to sentencing are considered with great liberality and that there is no absolute right to withdraw such a plea. People v Price, 85 Mich App 57; 270 NW2d 707 (1978), People v Flanagan, 72 Mich App 613; 249 NW2d 872 (1976), People v Love, 72 Mich App 413; 250 NW2d 94 (1976). In the present case, although defendant did move to withdraw his plea shortly before being sentenced, he did not advance any nonfrivolous reasons in support of his motion, nor did he assert his innocence with regard to his prior conviction. Therefore, we cannot perceive any ground upon which to find an abuse of discretion. Defendant's convictions are affirmed. D.F. WALSH, J., concurred. *601 T.M. BURNS, P.J. (dissenting). Respectfully, I dissent. As was stated by this Court in People v Szymanski, 102 Mich App 745; 302 NW2d 316 (1981), and in People v Ideis, 101 Mich App 179; 300 NW2d 489 (1980), the Supreme Court did not announce a new rule of law in People v Joeseype Johnson, 407 Mich 196; 284 NW2d 718 (1979). Rather, the Court merely clarified existing law. Trial courts are required to instruct the jury concerning the law applicable to the case, see People v Oberstaedt, 372 Mich 521, 526; 127 NW2d 354 (1964). The judge erred in this case by not instructing the jury that the crime of felonious assault is a specific intent crime. As a consequence, I cannot vote to affirm defendant's conviction of felonious assault. The Supreme Court's opinion in Joeseype Johnson wholly applies to this case. Because the trial judge's instructions to the jury in this case do not comply with the standards of Joeseype Johnson, defendant's conviction of felonious assault should be reversed. NOTES [1] Defendant also cites People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978). However, Crawford does not stand for the proposition that the prosecution be limited to the single question (Have you ever been convicted of a felony?) when impeaching with evidence of prior convictions. [2] See People v Kamin, 405 Mich 482, 494; 275 NW2d 777 (1979).