In People v Crawford, 83 Mich. App. 35; 268 N.W.2d 275 (1978), this Court construed Jackson, supra, as envisioning a true exercise of discretion by balancing the competing factors involved.Summary of this case from People v. Avery
Docket No. 30834.
Decided May 8, 1978.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor's Repeat Offenders Bureau, and Raymond P. Walsh, Assistant Prosecuting Attorney, for the people.
Lander C. McLoyd, Assistant State Appellate Defender, for defendant on appeal.
Before: T.M. BURNS, P.J., and M.F. CAVANAGH and D.C. RILEY, JJ.
Defendant was convicted of six counts of armed robbery, MCL 750.529; MSA 28.797, by a Wayne County jury in August of 1976. He was subsequently sentenced to 43 years, 4 months to 65 years on each count. All the charges arose out of a holdup at Kindred's Bar in the city of Dearborn.
All six people who were victims in the Kindred's Bar robbery testified at trial. Some of these witnesses identified defendant as a participant in the robbery, others did not. In addition, the people called five witnesses under the similar acts statute, MCL 768.27; MSA 28.1050, who had been victims of a robbery at Lem's Lounge, also a Dearborn bar. Again, some of the victims of the Lem's Lounge robbery identified defendant as a participant in that offense and some did not.
Defendant moved before trial to suppress reference to his prior criminal record, consisting of two convictions for armed robbery. The trial court refused to restrict the prosecutor's cross-examination if defendant chose to take the stand. This presents the factual framework for the main allegations of error in this appeal.
We turn first to the trial court's refusal to suppress reference to defendant's prior convictions. The decision to allow impeachment by prior convictions is within the discretion of the circuit court. People v Jackson, 391 Mich. 323; 217 N.W.2d 22 (1974). This rule envisions a true exercise of discretion by balancing the competing factors involved, however. See, People v Farrar, 36 Mich. App. 294, 301-303; 193 N.W.2d 363 (1971). The failure to do so in this case requires reversal.
The court below did not require the people to justify the use of these convictions for impeachment purposes. The defendant does not have the burden of persuading the court that his criminal record should be excluded. The people must justify admission. People v McCartney, 60 Mich. App. 620; 231 N.W.2d 472 (1975).
The prosecutor did not participate in the discussion regarding the suppression of defendant's record. While this alone may not justify reversal, the trial court's decision evidences an abuse of discretion which does require reversal.
The factors which the judge must weigh in making his determination include: (1) the nature of the prior offense (did it involve an offense which directly bears on credibility, such as perjury?), (2) whether it is for substantially the same conduct for which the defendant is on trial (are the offenses so closely related that the danger that the jury will consider the defendant a "bad man" or infer that because he was previously convicted he likely committed this crime, and therefore create prejudice which outweighs the probative value on the issue of credibility?), and (3) the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions (are there alternative means of presenting a defense which would not require the defendant's testimony, i.e., can his side of the story be presented, or are there alternative, less prejudicial means of impeaching the defendant?). See, People v Farrar, supra; People v McCartney, supra.
Had the trial court balanced these factors, we are convinced that he would have suppressed defendant's prior record. Indicative of this fact is the following discussion:
"Miss Ritter [Defense counsel]: Obviously, he has the right to take the stand.
"The Court: Okay.
"Miss Ritter: I don't see a jury in the world that could acquit him knowing he has two robbery armed convictions.
"The Court: I agree."
The court implicitly recognized that defendant could testify and be impeached with two prior armed robbery convictions (raising the dangers noted in factor 2 above) or forego testifying and deprive the jury of his side of the story (factor 3 above). Defendant did not testify or otherwise present a defense. To fail to suppress defendant's prior armed robbery convictions was an abuse of discretion requiring reversal in this case.
A similar analysis is appropriate under new MRE 609 and the result in a case such as this would be identical.
A similar problem, balancing the probative value against the prejudicial effect, is involved in the admission of the testimony of the victims of the Lem's Lounge robbery under the similar acts statute in this prosecution.
Judge WALSH has recently undertaken an extensive analysis of similar acts problems in People v Wilkins, 82 Mich. App. 260; 266 N.W.2d 781 (1978). Application of the principles set out in that opinion would require that the evidence in this case be excluded.
These principles are now embodied in MRE 404(b).
In commenting on the equivalent rule in the Federal system, Judge Weinstein stated:
"The factors in each case are so varied and unique, and the counterthrusting pressures — constitutional and otherwise — so great, that in some instances the courts are thrown back to suggesting that the only requisite is that the decision accord with fundamental notions of fairness. Yet some aid to fairness is afforded by analyzing each proffer of other crime proof to determine what evidential hypotheses the jury is expected to use, and weighing the probative force of the line of proof against the need of the prosecutor and the risks specified in Rule 403. The more reason there is in the decision to admit or exclude, the more apt it is to be fair. Both bench and bar benefit at a trial if critical questions of admissibility are exposed and reasons clearly stated." 2 Weinstein's Evidence ¶ 404, p 404-441.
We can only echo the proposition that appellate review is aided if the attorneys and court below truly analyze these problems rather than perfunctorily admitting such testimony.
There is a need to mention only one of the factors which should have gone into the trial court's analysis; the potential for confusing the issues in the case. People v Wilkens, at 260. The jury was presented with testimony from two groups of robbery victims. As the prosecutor stated in argument on another point:
"Mr. Lang [Assistant prosecutor]: Your Honor, I would say for the record that all the witnesses that have testified in his case by way of civilians testified in the last case, so, in a sense, this case would be tried for the second time today."
The potential for jury confusion, even if properly instructed, is obvious. We strongly disapprove of the practice of parading groups of victims from unrelated offenses in front of a jury under the guise of proof of identity, in the absence of a truly unique fact situation. See, People v Oliphant, 399 Mich. 472; 250 N.W.2d 443 (1976). This type of evidence proves identity only in the sense that it shows defendant's propensity to crime. Such a use is improper.
The other issues raised merit little or no discussion.
The record does not support defendant's claim that the 36-hour delay between his arrest and arraignment was used as a tool to extract a confession. It appears that the interview which resulted in the confession was initiated at defendant's request. See, People v White, 392 Mich. 404; 221 N.W.2d 357 (1974), cert den, 420 U.S. 912 (1975).
In the retrial, we suggest that the trial court follow CJI 4:1:01 in instructing the jury on its function with regard to defendant's claimed confession.
For the reasons stated in section I of this opinion, the conviction is reversed and remanded for a new trial.