PEOPLE
v.
BELL
Docket No. 77-2295.
Michigan Court of Appeals.
Decided February 5, 1979.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Edwin R. Brown, Assistant Prosecuting Attorney, for the people.
Green, Moon, Haldy, Gibbs & McCabe, for defendant.
Before: BEASLEY, P.J., and D.F. WALSH and J.E. McDONALD,[*] JJ.
D.F. WALSH, J.
Defendant Bennie Bernard Bell appeals his jury conviction of armed robbery, MCL 750.529; MSA 28.797. He has been sentenced to a prison term of 10 to 15 years.
The only direct testimony implicating defendant in the crime was that of Dennis Goodman. Mr. Goodman testified that he (i.e., Goodman) entered the drugstore and committed the robbery. According to Goodman, defendant had given him the gun used in the robbery and had driven the getaway car.
During direct examination of Goodman the prosecutor established the fact that Goodman's testimony was given in exchange for a reduction of the charge against him from armed robbery to assault with intent to rob while armed, MCL 750.89; MSA 28.284. On cross-examination of Goodman, defense counsel unsuccessfully attempted to ask the witness if he had been told that armed robbery was a nonprobationable offense. MCL 771.1; MSA 28.1131. Out of the presence of the jury, the trial court ruled that "anything pertaining to punishment *348 is not the jury's business". The judge noted that Goodman had not yet been sentenced on the assault charge and had not been promised probation.
The sole issue raised on appeal concerns the trial court's curtailment of defense counsel's cross-examination of Goodman.
In People v Atkins, 397 Mich. 163; 243 NW2d 292 (1976), the Supreme Court discussed the duty of the prosecutor and the trial judge to disclose to the jury, upon defense request, the fact that an accomplice has been granted immunity or other leniency to secure his testimony: "The focus of required disclosure is not on factors which may motivate a prosecutor in dealing subsequently with a witness, but rather on facts which may motivate the witness in giving certain testimony." Id. at 174. (Emphasis added.)
While the scope of cross-examination is a matter left to the sound discretion of the trial judge, that discretion must be exercised with due regard for a defendant's constitutional rights. This limitation on trial court control of cross-examination was described in United States v Garrett, 542 F2d 23, 25 (CA 6, 1976):
"It is well settled that the extent to which a witness may be cross-examined is a matter to be determined by the trial court in exercise of its sound discretion. Alford v. United States, 282 U.S. 687, 694, 51 S. Ct. 218, 75 L. Ed. 624 (1931); United States v. Baker, 494 F.2d 1262, 1266 (6th Cir.1974). However, a limitation on cross-examination which prevents a person charged with a crime from placing before the jury facts from which bias, prejudice or lack of credibility of a prosecution witness might be inferred constitutes denial of the right of confrontation guaranteed by the Sixth Amendment. Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L.Ed.2d *349 347 (1974); Smith v. Illinois, 390 U.S. 129, 88 S. Ct. 748, 19 L. Ed. 2d 956 (1968); Alford v. United States, supra."
Also see United States v Brown, 546 F2d 166, 169 (CA 5, 1977), where the Fifth Circuit noted the defendant's right to cross-examine a witness on the witness's possible motive for testifying falsely. The importance of cross-examination is necessarily magnified when the witness being subjected to cross-examination is the "star witness" or an accomplice. Id. at 170.
In People v Dellabonda, 265 Mich. 486, 499-500; 251 N.W. 594 (1933), the Michigan Supreme Court described the right of cross-examination.
"One of the elementary principles of cross-examination is that the party having the right to cross-examine has a right to draw out from the witness and lay before the jury anything tending or which may tend to contradict, weaken, modify or explain the testimony of the witness on direct examination or which tends or may tend to elucidate the testimony or affect the credibility of the witness."
This Court has recognized the importance of broad cross-examination in establishing a witness's interest in testifying and the narrow scope of the trial judge's discretion with respect to such cross-examination. People v Sesson, 45 Mich. App. 288, 301-302; 206 NW2d 495 (1973), lv den 389 Mich. 801 (1973): "The interest of a witness is never irrelevant." 45 Mich App at 302.
We find that the trial court abused its discretion in refusing to permit defense counsel to ask Mr. Goodman if he had been told that armed robbery is a nonprobationable offense. The offense to which he entered a plea of guilty, although subject to the same maximum punishment of life imprisonment *350 as armed robbery, is probationable. In order for the jurors to appreciate the significance of the plea bargain and to thereby be able to judge Goodman's credibility in an informed fashion, they were entitled to know all facts about the bargain which could have influenced his decision to testify against the defendant. The importance of the distinction between a probationable and a nonprobationable offense cannot be denied. That distinction was certainly a fact which could have motivated Goodman in testifying against defendant. People v Atkins, supra, at 174.
The trial judge correctly ruled that the jury was not entitled to know the possible disposition of the defendant should the jury return a verdict of guilty of armed robbery. Evidence inadmissible for one purpose, however, is sometimes properly admitted for another purpose. People v Spillman, 399 Mich. 313, 319; 249 NW2d 73 (1976), reh den 400 Mich. 952 (1977). The jurors could have been instructed that the fact that armed robbery was a nonprobationable offense was not to be considered in their deliberations as to the defendant's guilt except as it affected their assessment of Goodman's credibility. They could have been carefully instructed that Goodman had not been promised probation but that probation would be an alternative available to the sentencing judge. Only with these facts in mind could the jury have properly determined Goodman's interest in testifying for the prosecution and attached to his testimony an informed degree of reliance. See People v Crawl, 401 Mich. 1, 34-35; 257 NW2d 86 (1977) (opinion of LEVIN, J.).
Reversed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.