Docket No. 45335.
Decided April 24, 1980. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Linda Berns Wright, Appellate Prosecuting Attorney, for the people.
Derrick A. Carter, Assistant State Appellate Defender, for defendant on appeal.
Before: MacKENZIE, P.J., and BASHARA and D.C. RILEY, JJ.
Defendant was convicted by a jury of breaking and entering an occupied dwelling with intent to commit larceny, contrary to MCL 750.110; MSA 28.305. On March 23, 1979, he was sentenced to 5 to 15 years imprisonment with 289 days jail-time credit. Defendant now appeals as of right.
Defendant contends that the trial court reversibly erred in failing to give preliminary instructions to the jury. Since the defendant neither requested these instructions nor objected to the lack of them, this issue has not been preserved for appeal. GCR 1963, 516.2, People v Clay, 91 Mich. App. 716, 723; 283 N.W.2d 870 (1979).
Defendant also asserts that the Saginaw Police Department's "Operation Sting" constituted entrapment. This "fencing" operation was devised to lure sellers of stolen property. Defendant was videotaped selling stolen property to undercover officers and was subsequently arrested.
Michigan has adopted the objective test of entrapment which focuses on the alleged reprehensibility of police behavior. See People v Turner, 390 Mich. 7; 210 N.W.2d 336 (1973), People v Ramon, 86 Mich. App. 113; 272 N.W.2d 124 (1978). For entrapment to exist, there must be a causal connection between the provocative acts of the police and the criminal acts of the defendant. People v Moore, 73 Mich. App. 514, 517; 252 N.W.2d 507 (1977).
Even if we were to consider "Operation Sting" objectionable, we would not recognize the instant situation as entrapment. Defendant's selling of stolen property occurred after the breaking and entering for which he was charged. Thus, it cannot rationally be argued that the subsequent police conduct caused defendant's prior offense. Defendant was not charged with any offenses arising out of the police sale, therefore, there was no possible entrapment.
Finally, defendant argues that the trial court reversibly erred in allowing evidence of two prior convictions, one for armed robbery and one for breaking and entering, to be used for impeachment purposes.
As stated in People v Cherry, 393 Mich. 261; 224 N.W.2d 286 (1974), "* * * the trial court must positively indicate and identify its exercise of discretion", in allowing or barring testimony regarding prior convictions. The instant judge never explicitly recognized his discretion on the record. Nor is it clear that he considered the factors enunciated in People v Crawford, 83 Mich. App. 35, 39; 268 N.W.2d 275 (1978), that the contested prior convictions relate to credibility and that there are no alternative, less burdensome means of impeaching the defendant while protecting his right to choose whether or not to testify. Further, with regard to the former breaking and entering conviction, the judge did not consider the negative quality of similarity between it and the charged offense. See People v Baldwin, 405 Mich. 550, 553; 275 N.W.2d 253 (1979).
The judge did consider the second factor — that the probative value of admission outweighed any prejudicial effect. In the future, however, both the judge's discretion and all three of the Crawford (People v Crawford, 83 Mich. App. 35, 39; 268 N.W.2d 275 ) factors should be recognized on the record. People v Joyner, 93 Mich. App. 554, 560-561; 287 N.W.2d 286 (1980).
Having found error, we must determine whether it mandates reversal. First, we must inquire whether the error was so offensive that it undermined the entire judicial system. People v Wilkins, 82 Mich. App. 260, 272; 266 N.W.2d 781 (1978). We do not believe that the error was of that magnitude. Our next question must then be whether the error was harmless beyond a reasonable doubt. Wilkins, supra. We believe that it was.
When a defendant's criminal record is improperly allowed into evidence and the defendant then takes the stand to explain it, the original error may only be harmless. People v Townsend, 60 Mich. App. 204, 205-206; 230 N.W.2d 378 (1975), People v Bradford, 10 Mich. App. 696, 705-706; 160 N.W.2d 373 (1968). This scenario is unlike that of People v Denny, 86 Mich. App. 40; 272 N.W.2d 332 (1978), where the admission of evidence of a similar conviction discourages the defendant from taking the stand.
In the instant case, the defense attorney evidently chose to soften the impact of the prior convictions issue by questioning defendant about the convictions on direct examination. See People v Wilbourne, 44 Mich. App. 376; 205 N.W.2d 250 (1973). This was a matter of trial strategy, not a matter of error. Further, the prosecution did not inquire into these convictions on cross-examination. Any testimony on the convictions then was instigated by the defense, not the prosecution. We conclude that the admission of the convictions was harmless error.