People v. Huff, Docket No. 78-4352

Citation101 Mich.App. 232,300 N.W.2d 525
Decision Date04 November 1980
Docket NumberDocket No. 78-4352
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Russell HUFF, Defendant-Appellant.
CourtCourt of Appeal of Michigan (US)

James R. Neuhard, State Appellate Defender, Derrick A. Carter, Asst. State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George B. Mullison, Pros. Atty., Neil P. Wackerly, Asst. Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P. J., and BEASLEY and DENEWETH, * JJ.

BEASLEY, Judge.

Defendant, William Russell Huff, was convicted by a jury of larceny in a building in violation of M.C.L. § 750.360; M.S.A. § 28.592. After being sentenced to five years probation, with the first six months in the county jail, he appeals as of right.

Defendant's chief argument on appeal is that the trial court erred in responding to his motion in chambers to prohibit any reference to a previous conviction for a similar offense. The trial court ruled:

"THE COURT: * * * The Defendant has made a Motion In Limine to prevent the Prosecutor from cross examining, if he takes the stand, on an issue of prior felony conviction.

"We discussed it in Chambers. It appears that the Defendant has a conviction. I assume it's valid and that would be for larceny in a building.

"I've indicated in our opinion showing a conviction of that crime in a case where the Defendant is charged with the same type of crime, would be of such prejudicial nature that the jury would not be able to properly follow our instructions with that. That type of information could only be used for impeachment purposes and not in chief. It would be most difficult for them to follow.

"The Prosecutor, however, is suggesting, if that be the case, and the Defendant takes the stand, that he will not be committed to appear before the jury as though he had never had a conviction, and they, therefore, ask that they be permitted to ask him if he does not have a felony conviction on a given date and location, but not the details thereof.

"So, I've indicated I'll grant your Motion insofaras (sic ) a reference to any specific conviction, Mr. Williams.

"MR. WILLIAMS: Your Honor, although that's a better suggestion than allowing the actual prior charge to be brought before the jury, which is, of course, as pointed out, the same conviction that he's been tried for today, we feel that any reference to any prior felony would be prejudicial to the Defendant's rights to a fair trial and that in effect he would have to have the option in his own mind not testifying in his defense which would be against a fair trial or taking the stand and having the Prosecutor bring up the fact that he has a prior felony conviction which, in my opinion, would be prejudicial to the jury being impartial in this case. And we have cited People versus Jackson, which does allow the Court to exercise his discretion.

"And evidently, the Michigan Rules of Evidence or Rule 609 still have not actually overruled the idea of People versus Jackson, that the Court does have discretion to completely eliminate the idea of allowing the Prosecutor to bring up the prior felony conviction.

"So for that reason, we would Move that the Court exclude any reference whatsoever to a felony. But in the alternative, to take up the Prosecutor's suggestion, and if it's allowed in, to only be in the way of a felony and not of a specific felony.

"THE COURT: The objection is that there should not be any evidence at all of a prior conviction, which would mean that the Michigan Rule of permitting such impeachment would be wrong. If it would apply to that concept, then it's applicable to all convictions and I'm not the one to say that that policy decision shouldn't be made, but even People versus Jackson indicates to the contra. And certainly MSA (sic ) 609 indicates that it's a study (sic ) conviction of the Supreme Court that impeachment by this method is perfectly proper.

"So in view of that, unless there is some specific reason given why we shouldn't permit the Prosecutor to ask the question of whether or not there was a prior felony conviction, we would authorize him to do that and not go into detail of that conviction.

"MR. WILLIAMS: Thank you, Your Honor."

On trial, defendant did testify and the assistant prosecutor did ask him whether he had been convicted of a felony in another county in 1975.

In this case, a woman in a laundromat placed her wallet on a washing machine. She saw defendant walk past her in the aisle and then, while she was loading clothes in the washer, she saw defendant's hand reach out to the machine where her wallet was and then noticed her wallet was gone. She immediately went to where she had placed her wallet and when she found it was gone, she complained to the laundry manager. When defendant came out of the rest room where he had gone, the manager asked him if he had taken the wallet. He denied that he had. While the proofs pointed strongly toward defendant, they were not overwhelming. In some respects, the case could be said to hinge upon a one-on-one credibility issue.

The issue is, under the circumstances of this case, did the trial judge abuse his discretion by permitting the prosecution to impeach defendant by asking defendant whether he had been convicted of a felony in another county in 1975, but leaving with defendant the option of whether or not to specify the felony. We hold there was no abuse of discretion and affirm.

On January 5, 1978, effective March 1, 1978, the Supreme Court adopted the Michigan Rules of Evidence, Rule 609 of which, entitled Impeachment by Evidence of Conviction of Crime, covers the issue raised by defendant. Since defendant's trial commenced April 25, 1978, MRE 609 controls. While the preamble provides that these rules of evidence are binding on Michigan courts, the Court invites challenge as to the wisdom of any rule, providing:

"In adopting these rules, the Court should not be understood as foreclosing consideration of a challenge to the wisdom, validity or meaning of a rule when a question is brought to the Court judicially or by a proposal for a change in a rule. * * * While these rules are binding on Michigan courts, the Court does not intend to preclude evidentiary objection in the trial court based on a challenge to the wisdom, validity or meaning of a rule and development of a separate record so as to properly present the challenge for review by this Court."

Since defendant did not avail himself of this procedure, we assume defendant accepts and we find he is bound by MRE 609. Specifically, we hold this is not a case where defendant attacks and seeks to amend MRE 609 so as to preclude absolutely any and all use of prior convictions to impeach as to credibility. We interpret MRE 609 to require the trial judge to exercise his discretion to decide whether the probative value of admitting evidence of previous convictions on the issue of credibility outweighs any possible prejudicial effect. MRE 609 provides:

"(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if

"(1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and

"(2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect." 1

Applying MRE 609 here, we note defendant's prior conviction of larceny in a building meets both requirements of MRE 609(a)(1), i. e., the maximum sentence exceeds one year and it is an offense involving theft and, perhaps, dishonesty. In addition, the prior larceny conviction occurred within the 10-year period delineated in MRE 609(b).

The discretion vested in the trial court to determine whether the probative value of admitting evidence of a prior conviction on the issue of credibility outweighs its prejudicial effect is, however, hedged in by limitations. E. g., in the within case, the trial court interpreted People v. Baldwin 2 to preclude admission in evidence for impeachment purposes of a conviction of a similar offense.

While a fair inference from Baldwin may be as the trial court indicated, the narrow holding was that it is reversible error for a trial court to hold, in exercising the discretion described in People v. Jackson, 3 that a previous conviction for an identical or similar offense is a factor favoring admission of such impeachment evidence. Baldwin holds nothing more. This is one limitation upon the trial court's discretion.

In applying MRE 609(a), the underlying propositions should be remembered.

In a criminal case, a prior felony conviction is not substantive evidence that the defendant committed the offense for which he stands trial; thus, a prosecutor may not offer evidence that the defendant was previously convicted of a felony as part of his case in chief. The reason for this conclusion is that while a person who has previously committed a felony is more likely to commit a subsequent felony than one who has not, the mere probability is not, under the law, substantive evidence of commission of the offense. Thus, as part of a prosecutor's case in chief, such evidence is irrelevant and immaterial.

In this connection, it is well to remember that from time immemorial a basic police technique in solving crime has been to investigate those within the area at the time of the offense who are known to have committed similar crimes. The reason behind the investigative procedure is plain enough, namely, that a person who has been convicted of committing a felony is far more likely to repeat and commit another crime than someone who has...

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  • People v. Owens
    • United States
    • Court of Appeal of Michigan — District of US
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    ...on the prosecution to justify admission) with People v. Steele, 115 Mich.App. 758, 321 N.W.2d 804 (1982), and People v. Huff, 101 Mich.App. 232, 250-251, 300 N.W.2d 525 (1980), rev'd 411 Mich. 974, 308 N.W.2d 110 (1981) (burden on the defendant to justify exclusion). We believe that the bur......
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