People v. Cage

83 Mich. App. 534 (1978) 269 N.W.2d 213 PEOPLE v. CAGE Docket No. 30213. Michigan Court of Appeals. Decided May 23, 1978. Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Craig L. John, Assistant Prosecuting Attorney, for the people. Solomon & Stern, for defendant on appeal. Before: D.E. HOLBROOK, P.J., and N.J. KAUFMAN and J.E. McDONALD,[*] JJ. PER CURIAM. Defendant, charged with armed robbery (MCL 750.529; MSA 28.797), was tried and found guilty by a jury. Following sentence, defendant appeals on grounds that the trial court erred in allowing use of prior convictions for impeachment purposes, claiming that one of the prior convictions was for a misdemeanor. Defendant also *536 appeals on the ground that the verdict of the jury was against the great weight of the evidence. The specific prior conviction in question was that of attempting to use a stolen credit card, punishable by a prison term of not more than 2 years under MCL 750.92; MSA 28.287, as a circuit court, or "high" misdemeanor. In People v Renno, 392 Mich 45; 219 NW2d 422 (1974), the Supreme Court, in reviewing the question of impeachment by prior convictions, said: "The original legislative purpose behind these statutes is obvious. They were passed to allow persons, historically disqualified at common law from testifying in a case, to testify. A compromise, however, was worked out whereby these disqualified persons could still have their credibility attacked by those prior convictions which formerly had disqualified them from testifying. "Not all crimes at common law disqualified a witness. Only infamous crimes disqualified a witness, and our statutes were originally intended only to allow impeachment by use of that type of criminal conviction. * * * "Our Legislature saw fit to pass these statutes and to confer upon the accused a right he previously did not have at common law, that of testifying on his own behalf. The Legislature also saw fit to limit this right, permitting the defendant's credibility to be attacked in the discretion of the trial court by these prior disqualifying convictions. These statutes were passed to give rights to an accused defendant, not to take rights away from him. Allowing the use of municipal ordinance convictions for impeachment purposes does just that — it takes away rights the accused formerly had at common law. "We do not hesitate in this case to prohibit the further use of municipal ordinance or misdemeanor convictions used by the prosecution solely for impeachment purposes." 392 Mich 53, 55. *537 A careful reading of Renno, supra, reveals that the word "felony" is not used or defined in the opinion and that the only time the word "misdemeanor" is used in the entire opinion is in the above quotation. We have no hesitancy in assuming that as used in Renno, supra, "misdemeanor" is meant to be a synonym for violations of municipal ordinances and nothing more. We find this interpretation to be further buttressed by this language in People v McMillan, 68 Mich App 113, 123; 242 NW2d 518 (1976). "We do not think that, in Michigan, the term `infamous crime' can necessarily be equated with the term `felony'. In Attorney General v Montgomery, 275 Mich 504, 513; 267 NW 550 (1936), our Supreme Court defined an infamous crime as follows: "`Whether a crime is infamous or not is not determined by the nature of the offense (2 Bouvier's Law Dictionary [Rawle's 3d Rev] p 1553, 1554), but by the consequences to the individuals by the punishment prescribed for such offense. Butler v Wentworth, 84 Me 25 (24 ATL 456, 17 L.R.A. 764). Crimes subject to infamous punishments are infamous crimes, and the term "infamous crime" means any crime punishable by imprisonment in the state prison.' (Citations omitted, emphasis supplied.) "It would then appear that under Montgomery, supra, impeachment should be permissible by use of prior convictions based on a crime punishable by imprisonment in the state prison, regardless of whether it is dubbed `felony' or `misdemeanor'." And further at 124-125: "The Legislature has broken misdemeanors into two categories, some punishable by imprisonment in the state prison (see e.g. MCLA 750.414; MSA 28.646) and some punishable by a maximum of 90 days in the county jail, MCLA 750.504; MSA 28.772. We think that *538 it would both be more logical and more in spirit with the holding of Montgomery supra, if the rule of Renno was limited to those crimes carrying a maximum of 90 days in the county jail." (Emphasis in original.) Had the Supreme Court intended to include high misdemeanors or crimes with sentences greater than one year, it certainly could have, but declined to do so, for leave to appeal McMillan[1] was denied. 399 Mich 825 (1977). The decision by the trial court in the instant case, to permit impeachment by means of the conviction of attempting to use a stolen credit card, was not error. People v Renno, 392 Mich 45; 219 NW2d 422 (1974), People v McMillan, 68 Mich App 113; 242 NW2d 518 (1976), lv den, 399 Mich 825 (1977). Defendant's claim that the verdict was against the great weight of the evidence is not properly before this Court as defendant has not moved for a new trial as is required to preserve the issue for review. People v Mattison, 26 Mich App 453, 459; 182 NW2d 604 (1970), People v Towns, 69 Mich App 475, 476; 245 NW2d 97 (1976). Affirmed. N.J. KAUFMAN, J. (dissenting). I must respectfully dissent. The conviction which prompts my disagreement with the majority opinion is attempted use of a stolen credit card. Use of a stolen credit card is prohibited by MCL 750.157q; MSA 28.354(16), providing as follows: "Any person who delivers, circulates or sells a credit *539 card which was obtained or is held by such person under circumstances which would constitute an offense under sections 157n or 157p, or uses or permits or causes or procures the same to be used, delivered, circulated or sold, knowing the same to be obtained or held under circumstances which would constitute an offense under sections 157n or 157p, shall be guilty of a felony." Since MCL 750.157q; MSA 28.354(16) does not contain a penalty provision, reference must be had to MCL 750.503; MSA 28.771, wherein it is provided: "A person convicted of a crime declared in this or any other act of the state of Michigan, to be a felony, for which no other punishment is specially prescribed by any statute in force at the time of the conviction and sentence, shall be punished by imprisonment in the state prison for not more than 4 years or by a fine of not more than 2,000 dollars, or by both such fine and imprisonment." Therefore, a violation of MCL 750.157q; MSA 28.354 (16) is punishable by a term of imprisonment of not more than four years; and, under MCL 750.92; MSA 28.287, the crime of attempted use of a stolen credit card is thus a misdemeanor.[1] In this case, defense counsel objected on two occasions, both prior to defendant taking the stand, to the prosecutor's suggestion that attempted use of a stolen credit card constituted a felony. The trial court agreed with the prosecutor. *540 I would hold that the trial court erred in determining that attempted use of a stolen credit card was a felony. Accordingly, I would hold that under People v Renno, 392 Mich 45; 219 NW2d 422 (1974), use of that misdemeanor conviction for impeachment purposes is forbidden.[2] I do not believe that this Court can validly distinguish between so-called types of misdemeanors. The Supreme Court clearly stated "misdemeanor convictions". Had the Supreme Court wanted to exclude high misdemeanors or crimes with sentences greater than one year, it certainly could have done so, as was done in MRE 609(a)(1).[3] I would reverse defendant's conviction and remand for a new trial. NOTES [*] Circuit judge, sitting on the Court of Appeals by assignment [1] Supporting the above interpretation of Renno, MRE 609 continues the avoidance of the felony-misdemeanor morass. See Robinson, James K., and John W. Reed, A Review of the Proposed Michigan Rules of Evidence, 56 Michigan State Bar Journal 21, 30 (January, 1977). [1] In pertinent part, MCL 750.92; MSA 28.287 states: "3. If the offense so attempted to be committed is punishable by imprisonment in the state prison for a term less than 5 years, or imprisonment in the county jail or by fine, the offender convicted of such attempt shall be guilty of a misdemeanor, punishable by imprisonment in the state prison or reformatory not more than 2 years or in any county jail not more than 1 year or by a fine not to exceed 1,000 dollars; but in no case shall the imprisonment exceed 1/2 of the greatest punishment which might have been inflicted if the offense so attempted had been committed." [2] I acknowledge that it was defense counsel who elicited evidence of the misdemeanor conviction. However, I agree with the resolution that People v Peabody, 37 Mich App 87, 89-90; 194 NW2d 532 (1971), adopted to meet this situation: "To hold that a defendant's lawyer opens the door by adverting to a defendant's prior conviction record during direct examination would confront defendants and their lawyers with an unnecessary dilemma: whether to reveal a prior record on direct examination and thereby open the door to inquiry otherwise impermissible, or to leave it to the prosecutor to bring out the record for the first time on cross-examination. A defendant should not be penalized because his lawyer seeks to soften the unfavorable impact on the jury of his client's conviction record by bringing it out himself rather than standing by so that the prosecutor can belabor it on cross-examination." (Emphasis supplied.) [3] I further note that with the adoption of MRE 609, the felony-misdemeanor distinction is unimportant because "the crime involved theft, dishonesty, or false statement, regardless of the punishment". MRE 609(a)(1). Nevertheless, were defendant to get a new trial, the trial court would still have to determine "that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect". MRE 609(a)(2).