People v. Harrington
People v. Harrington
Opinion of the Court
Defendant appeals his jury conviction of delivery of marijuana contrary to MCLA 335.341(l)(c); MSA 18.1070(41)(l)(c).
Defendant first argues that the trial court erred in denying his motion to quash the information. MCLA 767.42(1); MSA 28.982 provides in part:
"An information shall not be filed against any person*120 for a felony until such person has had a preliminary examination therefor”.
The information charged defendant with being a second offender under MCLA 335.348; MSA 18.1070(48), which provides in part:
"Any person convicted of a second or subsequent offense under this act may be imprisoned for a term up to twice the term otherwise authorized or fined an amount up to twice that otherwise authorized, or both.”
Defendant contends he was entitled to a preliminary examination as to his second offender status.
In People v McFadden, 73 Mich App 232; 251 NW2d 297 (1977), we deduced from the absence of a procedural framework in MCLA 335.348; MSA 18.1070(48) a legislative intent not to provide an adversary hearing regarding the prior offense, and observed that the second offender status could be challenged at sentencing. The statute is therefore analogous to the habitual offender act, MCLA 769.10 et seq.; MSA 28.1082 et seq., in that it does not create a separate crime, but merely creates a factor which augments the sentence of a crime. See, e.g., People v Hendrick, 398 Mich 410, 416-417; 247 NW2d 840, 842 (1976). Since the statute does not create a crime, there is no right to a preliminary examination thereon. MCLA 767.42(1); MSA 28.982; see People v Judge of Recorder’s Court, 251 Mich 626, 627; 232 NW 402, 403 (1930). It was therefore not error for the trial court to deny defendant’s motion to quash.
A police informant testified that defendant sold him marijuana. The sale was overheard and verified by a police officer. Defendant denied the sale, and by way of explanation stated on direct examination that he knew the informant had previously
We address one other issue which may recur on retrial. On cross-examination of the informant, defendant sought to elicit the circumstances surrounding prior arrests of the informant which did not result in convictions, apparently to establish that the informant had made a deal with the police, might still be subject to prosecution, and hence had an interest in the outcome of the case. Arrests not resulting in convictions are not admissible to impeach. People v Falkner, 389 Mich 682, 695; 209 NW2d 193, 199 (1973). However, a witness may be cross-examined as to any interest he might have in the outcome of the trial, which might encompass questions as to arrests not resulting in convictions. People v Sesson, 45 Mich App 288, 298-302; 206 NW2d 495, 501-502 (1973); see People v Crutchfield, 62 Mich App 149; 233 NW2d 507 (1975).
The remaining issues raised by defendant are moot.
Reversed and remanded.
Dissenting Opinion
(dissenting). I respectfully dissent.
Defendant offered the terms of his parole on direct examination as an explanation of why he would not have associated with the police informant. Defendant did so to bolster his claim that he had not sold anything to the informant.
Here the prosecutor’s questions concerning the conditions of defendant’s parole, which included a requirement that he refrain from associating with known criminals, were not irrelevant, as in Rappuhn. Defendant had put in issue the question of whether the condition of his parole that he not associate with known criminals had affected his conduct, and in my opinion the prosecutor committed no error in cross-examining defendant on that point.
In People v Drew, 67 Mich App 295, 302-304; 240 NW2d 776 (1976), the trial court erroneously ruled, over defense objection, that the prosecutor could inquire not only into defendant’s prior convictions, but also into the total number of years he had spent in prison. The majority stated:
"The fact that the detrimental information was brought out by the defense attorney does not constitute a waiver because he had preserved the issue by objecting to the Court’s prior ruling. If there had been no prior ruling and no objection thereto, we would afñrm. ” Id. at 303-304. (Emphasis added.)
In the present case there had been no prior ruling
The trial court did rule, over defense objection, that defendant’s prior conviction could he used for impeachment purposes, but the question of defendant’s sentence was not raised, argued, nor ruled upon.
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