People v. Ash, Docket No. 62798
| Decision Date | 16 November 1983 |
| Docket Number | Docket No. 62798 |
| Citation | 340 N.W.2d 646,128 Mich.App. 265 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Allen ASH, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Theodore O. Johnson, Pros. Atty., and Michael A. Nickerson, Asst. Atty. Gen., for the People.
State Appellate Defender John Nussbaumer, Detroit, for defendant-appellant.
Before DANHOF, C.J., and ALLEN and WALSH, JJ.
Defendant was convicted of breaking and entering a place of business with intent to commit larceny therein, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305, following a jury trial. He was subsequently convicted as an habitual offender, second offense, following a bench trial. He was sentenced to serve a term of 5 to 15 years in prison. Defendant appeals his convictions as of right.
Defendant's convictions arose out of a burglary which occurred at Wickes Lumber Company in Alpena on October 31, 1978. Defendant and another person were apprehended as they were fleeing from the building. At trial, defendant claimed that he was unable to form the requisite specific intent to commit larceny due to the vast quantity of alcohol and drugs he had ingested earlier in the evening of the burglary.
Defendant claims that the trial court erred by permitting the prosecutor to introduce, for impeachment purposes and as substantive evidence, evidence of defendant's 1975 conviction for entry without breaking with intent to commit larceny.
We initially reject the prosecutor's claim that the evidence was admissible as substantive evidence pursuant to MRE 404(b) to establish defendant's intent. The prosecutor failed to establish that there was some special quality or circumstance which linked the 1975 act with this act. People v. Golochowicz, 413 Mich. 298, 409, 319 N.W.2d 518 (1982).
We also are of the opinion that the evidence was improperly admitted for impeachment purposes. Prior to the Supreme Court's 1980 modification of MRE 609, trial courts were not required to make findings on the record concerning all of the factors used to determine the admissibility of evidence of a defendant's prior convictions. People v. Woods, 416 Mich. 581, 331 N.W.2d 707 (1982). However, trial in the present case took place after the rule was amended. At the time of trial the rule provided:
"(a) 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
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"(2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination." See 408 Mich. CXV.
The factors that the trial court was required to consider in determining the admissibility of this type of evidence were described in People v. Crawford, 83 Mich.App. 35, 39, 268 N.W.2d 275 (1978). The trial court failed to articulate on the record its application of the Crawford factors.
Even more troubling is the fact that the prosecutor failed to move for the admission of this evidence until after defense counsel had completed his direct examination of the defendant. The trial court should have declined to entertain the issue at that point. Defendant was entitled to know before he took the stand whether evidence of his prior record would be used used for impeachment. People v. Hayes, 410 Mich. 422, 426-427, 301 N.W.2d 828 (1981). Furthermore, it was the prosecutor's responsibility, not defendant's, to insist on a ruling on the issue before defendant took the stand. People v....
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