Docket No. 16249.
Decided September 10, 1974.
Appeal from Calhoun, Creighton R. Coleman, J. Submitted Division 3 March 7, 1974, at Grand Rapids. (Docket No. 16249.) Decided September 10, 1974.
Daniel Madden was convicted of breaking and entering with intent to commit larceny. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Stanley Everett, Prosecuting Attorney, and Noel G. Peterson, Chief Assistant Prosecuting Attorney, for the people.
Wilcox, Robinson, Dandenault Magnotta, for defendant on appeal.
Before: T.M. BURNS, P.J., and V.J. BRENNAN and BASHARA, JJ.
Defendant was convicted by a jury of breaking and entering with intent to commit larceny contrary to MCLA 750.110; MSA 28.305. He was sentenced to 2 years probation with 60 days to be served in the county jail. He appeals raising four issues of error for this Court's review.
The first allegation charges error by the trial court in limiting the cross-examination of the prosecution's chief witness, Carl Ebert. Ebert testified on direct examination that he and defendant had committed the crime charged. He also testified that he had decided to make a new life for himself and had confessed to the police of having committed crimes in the past. Although he had recently pled guilty to an unrelated breaking and entering charge, he had not been sentenced. On cross-examination by defense counsel, Ebert acknowledged conviction of crimes in both California and Missouri for which he was on parole at the time of arrest for the instant crime.
During this cross-examination the trial court, on two separate occasions sua sponte admonished defense counsel for interrogating Ebert about arraignments and arrests. Subsequent to these warnings, a few questions were asked of the witness about his confession in the instant crime which prompted the trial judge to order a recess. The apparent purpose was to discuss the use of witness's confession in the absence of the jury. In response to the objection of the court and prosecutor to use of the confessions for impeachment, defense counsel stated his intention in questioning the witness:
"It will be time and place of confession, whether he was offered any promises, if any promises were made concerning confessions, and what he remembers about giving the confession, what he said about the incident that took place."
After examining the transcript in the case at bar, we are convinced that this defendant was given a full opportunity on cross-examination to explore any promises of leniency, immunity or other agreements regarding the testimony of Carl Ebert and that the trial judge properly performed the duty imposed upon him by MCLA 768.29; MSA 28.1052 when he limited defendant's wide-ranging cross-examination of the main prosecution witness.
Prior to the ruling of the trial judge, defendant's counsel forcefully cross-examined this witness and fully brought to the attention of the jury, perhaps even more so than would otherwise be permissible, the character of this witness. During this part of the cross-examination the witness admitted, upon questioning by defendant's attorney, that he participated in the crime charged against defendant, that he was dishonorably discharged from the navy, that he was arraigned in California for breaking and entering an automobile and placed on probation, that he was convicted of possessing narcotics in Missouri and on parole from that offense when, in July of 1971, he was arrested in Calhoun County, that he made a confession to the police about his participation in this offense and that he was presently out on bond.
After the ruling was made, defense counsel questioned the witness regarding promises of leniency with respect to this confession and also went into the witness's plea the day earlier to an unrelated offense. In his questioning about the plea, defendant's attorney brought out the facts that the plea was the result of a plea agreement, that other outstanding charges against the witness were dropped and that the witness had never been convicted for his participation in this crime, a crime to which he had confessed.
In this case, by the ruling made, the trial judge was performing his duty to control the receipt of evidence at trial. MCLA 768.29; MSA 28.1052. He was faced with an attorney who, despite being twice admonished, persisted in questioning the witness about matters which the trial judge deemed inadmissible. By his ruling he precluded defendant's attorney from going into arrests of the witness but did allow him to question the witness about his confession to this particular offense.
The permissible scope of cross-examination during a trial is vested in the sound discretion of the trial judge and is not to be disturbed unless a clear abuse of that discretion is shown. People v Taylor, 386 Mich. 204; 191 N.W.2d 310 (1971); People v Glover, 47 Mich. App. 454; 209 N.W.2d 533 (1973); People v Osgood, 24 Mich. App. 705; 180 N.W.2d 640 (1970). We find no such clear abuse in this case. Indeed, we would affirm this case on the authority of People v Glover, supra. Here, as in Glover, defendant was not forclosed from showing bias or interest on the part of the witness. He was merely precluded from going into the details of other confessions the witness made. The details of such confessions, like the reasons for non-waiver in Glover, were obviously extraneous to the issue of the witness's bias or interest. The jury was made well aware of the witness's background and, more importantly, the fact that other charges were dropped in return of his plea to an unrelated offense. Under these circumstances we find no error.
We find the remaining allegations of error to be without merit.