88 Mich. App. 680

PEOPLE v SHRADER

Docket No. 77-4394.

Submitted November 1, 1978, at Lansing.

Decided February 21, 1979.

*681Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael W. LaBeau, Prosecuting Attorney, and Robert W. Kehres, Assistant Prosecuting Attorney, for the people.

Scibetta & Adrahtas, P.C., for defendant on appeal.

Before: M. J. Kelly, P.J., and J. H. Gillis and M. F. Cavanagh, JJ.

Per Curiam.

Following a jury trial, defendant was convicted of second-degree murder, in violation of MCL 750.317; MSA 28.549. He was sentenced to a prison term of 40 to 60 years and appeals now by right.

Of the five issues raised on appeal, only one merits discussion. This is defendant’s claim of error in the trial court’s refusal to exercise its discretion relative to defendant’s pretrial motion to suppress reference to his prior convictions.

Two and one-half months in advance of trial defendant filed a motion requesting the trial court to suppress use of his prior convictions should he take the stand at trial. At that time, the court denied the motion for the reason that it was premature.1 Defense counsel was clearly advised that he was not precluded from raising the motion *682again at the time of trial.2 The matter was, however, never again raised either before or during the three-day trial.

In general, where the defendant moves to exclude reference to his prior convictions, the trial court may in the exercise of discretion preclude such reference. It is error to fail or refuse to exercise this discretion. People v Jackson, 391 Mich 323, 336; 217 NW2d 22 (1974), People v Farrar, 36 Mich App 294; 193 NW2d 363 (1971). The court is required to positively indicate and identify its exercise of discretion. People v Cherry, 393 Mich 261; 224 NW2d 286 (1974). In the present case defense counsel simply failed to mention the issue during the three-day trial; this is tantamount to abandonment of the issue. There can be no *683abuse of discretion where the trial court’s discretion has not been invoked in the first place. People v Moore, 391 Mich 426; 216 NW2d 770 (1974), People v Jones, 44 Mich App 633, 638; 205 NW2d 611 (1973).

Finding no merit in the remaining issues, we affirm the conviction.

People v. Shrader
88 Mich. App. 680

Case Details

Name
People v. Shrader
Decision Date
Feb 21, 1979
Citations

88 Mich. App. 680

Jurisdiction
Michigan

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