Opinion
Docket No. 116279.
Decided August 7, 1989.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division, Research, Training and Appeals, and Rosemary A. Gordon, Assistant Prosecuting Attorney, for the people.
Norman R. Robiner, for defendant on appeal.
Before: CYNAR, P.J., and WEAVER and HOLBROOK, JR., JJ.
Following a jury trial, defendant was convicted of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant appealed as of right and we affirmed. People v Wesley, 159 Mich. App. 801; 406 N.W.2d 500 (1987).
By Supreme Court order of May 17, 1988, the application for leave to appeal was held in abeyance pending the decision in People v Finley, 431 Mich. 506; 431 N.W.2d 19 (1988), after previously having been held in abeyance for People v Allen, 429 Mich. 558; 420 N.W.2d 499 (1988). On March 22, 1989, the Supreme Court, in lieu of granting leave to appeal, entered an order vacating this Court's judgment and remanding the case to this Court for reconsideration of the impeachment issue in light of People v Allen, including the question whether the error, if any, was harmless. 432 Mich. 880 (1989).
In Allen, the Supreme Court resolved the different interpretations of the application of MRE 609(a) to the practice of impeaching criminal defendants with evidence of prior convictions. In Allen, the Court set forth a more specific procedure for the exercise of discretion under the then-existing MRE 609(a). In addition, the Court promulgated an amendment to MRE 609(a) to apply to all cases tried after March 1, 1988. The Allen Court further declared that its clarified balancing test is to be applied retroactively to all cases pending on initial and direct appeal in which the issue of impeachment by prior conviction under the then-existing MRE 609(a) has been raised and preserved. Id., p 609. Since the instant appeal is such a case, we must review the trial court's decision to deny defendant's motion to suppress evidence of his prior conviction under the clarified balancing test set forth in Allen.
In explaining the balancing test, the Supreme Court stated:
In sum, the trial judge's first task . . . will be to determine whether the crime contains elements of dishonesty or false statement. If so, it would be admitted without further consideration. If not, then the judge must determine whether the crime contains an element of theft. If it is not a theft crime, then it is to be excluded from evidence without further consideration. [ 429 Mich. 605.]
In this case, defendant was impeached with evidence of his prior second-degree murder conviction. Under the Allen balancing test, the prior conviction was for an offense which does not contain elements of dishonesty or false statement. Furthermore, the prior offense does not contain an element of theft. Therefore, since second-degree murder is not a theft crime, evidence of defendant's conviction should have been excluded. The trial court erred in denying defendant's motion to suppress evidence of the prior conviction. Id.
However, such error was harmless in light of the overwhelming evidence of defendant's guilt of the instant offenses. At trial, complainant testified that defendant approached the driver's side door of her car and put a gun to her head. Defendant also reached into the car and searched her pocket for money. Next he demanded a kiss, stating that he would shoot otherwise, and then he opened the car door. Defendant then entered the car, unzipped his pants, and forced complainant to perform oral sex. Thereafter, defendant ordered complainant out of the car and he drove away. About ten days later, defendant was apprehended while in possession of complainant's car. Therefore, we find that the trial court's error in allowing impeachment was harmless error since the prosecutor's case was so strong that we do not believe a reasonable juror could have voted to acquit defendant, even if he had testified and not been impeached. Id., p 612.
Affirmed.
WEAVER, J., concurred.
While I agree with the majority that the trial court erred, I do not find such error to be harmless, but one requiring reversal.