People v. Avery

• Decision Date: 04 May 1982
• Docket Number: Docket No. 49645
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Elliot AVERY, Defendant-Appellant. 114 Mich.App. 159, 318 N.W.2d 685
• Court: Court of Appeal of Michigan — District of US

Page 685

318 N.W.2d 685

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Elliot AVERY, Defendant-Appellant.

Docket No. 49645.

114 Mich.App. 159, 318 N.W.2d 685

Court of Appeals of Michigan.

Submitted Dec. 4, 1981.

Decided March 17, 1982.

Released for Publication May 4, 1982.

[114 MICHAPP 161] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, [114 MICHAPP 162] Pros. Atty., and Thomas J. Rasdale, Asst. Pros. Atty., for the people.

Susan J. Smith, Asst. State Appellate Defender, Detroit, for defendant-appellant.

Before V. J. BRENNAN, P. J., and ALLEN and MEGARGLE, ^* JJ.

THOMAS C. MEGARGLE, Judge.

Defendant was charged with Forgery, M.C.L. Sec. 750.248; M.S.A. Sec. 28.445, and Uttering and Publishing a Forged Instrument, M.C.L. Sec. 750.249; M.S.A. Sec. 28.446. On April 25, 1979, in Bay County Circuit Court, a jury found Defendant guilty of both counts. Defendant was sentenced to concurrent terms of six and one-half to fourteen years. Defendant appealed as of right.

Defendant raises four issues in his appeal. The first issue is whether or not the trial court reversibly erred in ruling that evidence of the Defendant's prior felony convictions could be used to impeach Defendant should he testify in his own behalf.

Before trial defense counsel made a motion in limine to exclude Defendant's prior criminal record should Defendant decide to take the stand. The Prosecutor objected and stated that there were a number of felony and dishonesty-related misdemeanor convictions against the Defendant within the past ten years. The trial court ruled that evidence of all prior felonies committed within the past ten years, except those involving forgery and uttering and publishing, was admissible. The trial judge specifically indicated he was exercising his discretion and that the probative value of evidence [114 MICHAPP 163] of these convictions outweighed any prejudicial effect.

Use of a Defendant's prior felony conviction record for impeachment purposes is within the discretion of the trial court. People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974). The trial court exercises this discretion by balancing the prejudicial effect of the evidence of prior convictions against their probative value on the issue of credibility. People v. Hughes, 411 Mich. 517, 520, 309 N.W.2d 525 (1981).

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. The Court listed the factors which the trial judge must weigh in making his determination: one, the nature of the prior offense; two, whether it is for substantially the same conduct for which the Defendant is on trial; and three, the effect upon the decisional process if the accused does not testify out of fear of impeachment by evidence of his prior convictions.

It is clear that the trial court must indicate its recognition of this discretion, People v. West, 408 Mich. 332, 291 N.W.2d 48 (1980), People v. Cherry, 393 Mich. 261, 224 N.W.2d 286 (1974), People v. Henry, 101 Mich.App. 585, 300 N.W.2d 639 (1980), or it must appear on the record that the trial judge was aware that he had the discretion to disallow evidence of the prior convictions. People v. Castillo, 82 Mich.App. 476, 266 N.W.2d 460 (1978), People v. Pleasant, 69 Mich.App. 322, 244 N.W.2d 464 (1976).

It is not clear, however, whether the record must affirmatively reflect the trial court's awareness of the proper criteria, as several recent panels [114 MICHAPP 164] from this Court have reached opposite conclusions. Some panels have held that the trial judge should note his discretion and the factors underlying his decision on the record, or the record should specifically indicate his cognizance of the criteria. People v. Dyson, 106 Mich.App. 90, 307 N.W.2d 739 (1981), People v. Joyner, 93 Mich.App. 554, 287 N.W.2d 286 (1979). Other panels have determined that the case law does not require a finding by the trial court on the Crawford factors and, in the absence of an affirmative misapplication of the three criteria, declined to presume that the Judge failed to consider the relevant criteria in admitting the evidence. People v. Love, 91 Mich.App. 495, 283 N.W.2d 781 (1979), People v. Roberson, 90 Mich.App. 196, 282 N.W.2d 280 (1979), People v. Wakeford, 94 Mich.App. 249, 288 N.W.2d 381 (1979).

In the instant case it is unclear from the record whether the trial judge knew the exact prior felony convictions with which the prosecutor intended to impeach the Defendant. Defendant argues the trial judge could not intelligently weigh whether the introduction of these prior convictions was more probative than prejudicial without knowing what the convictions were. However, the trial judge did exclude all misdemeanors, convictions over ten years old and forgery or uttering and publishing convictions stating that these convictions were excluded because their probative value was outweighed by their prejudicial effect on the Defendant.

Although the trial judge explicitly acknowledged and exercised his discretion to admit Defendant's criminal record, the record on the motion to suppress these prior convictions reveals no discussion of the Crawford criteria.

In the instant case under Roberson, supra, the [114 MICHAPP 165] trial court committed no error as it recognized and exercised its discretion, while under Dyson, supra, the trial court would have committed error as there was no discussion of the Crawford factors unless such error was harmless in view of the overwhelming evidence of the Defendant's guilt.

We choose to follow Roberson, supra, and hold that the trial court did not commit reversible error. Even under Dyson error, if committed, would be harmless as the evidence against the Defendant in this case was overwhelming. Defendant was seen endorsing his name to a check which did not belong to him in an attempt to purchase items at a department store. Defendant presented no witnesses in his own behalf. It would appear that the evidence against the Defendant was simply too overwhelming. Defendant's claim of error is, therefore, without merit.

The second issue is whether or not the Defendant's conviction for Forgery and Uttering and Publishing based upon the facts of this case constitute multiple convictions and double punishment for the same offense, in violation of the double jeopardy clause.

Defendant's double conviction for Forgery and Uttering and Publishing cannot stand. A defendant may not be convicted of two crimes where, on the facts of the particular case, the trier of fact must necessarily find the Defendant guilty of one crime in order to convict him of another. People v. Grable, 95 Mich.App. 20, 289 N.W.2d 871 (1980).

Defendant's conviction of Forgery and Uttering and Publishing constitutes "factual" double jeopardy. We hold that the Defendant's forging an instrument and presenting it for payment constituted only a single criminal transaction. Defendant's right not to be placed twice in jeopardy for [114 MICHAPP 166] the same offense was violated as the circumstance of the forgery was not severable and apparent from the uttering and publishing.

The evidence at trial established that Defendant went into a Sears Store, selected some clothing and approached the sales clerk, who rung up the merchandise for him. Defendant wrote out a check in front of the sales clerk, who immediately recognized the check as having been stolen. Defendant then presented some identification to the clerk so that the check would be taken as payment for the clothing. The clerk went to the store detective and an assistant manager remained at the counter in order to detain Defendant. The entire episode from the time the Defendant first came to the sales counter to the time that the store detective came down to investigate was approximately ten minutes. We hold that these facts constitute a single criminal transaction and violate "factual" double jeopardy. The fact of forgery supplied the element of knowledge indispensible to a conviction for Uttering and Publishing in this case. No evidence of knowledge that the instrument was false, a necessary element of uttering and publishing, was presented at the trial apart from the fact of forgery. The forgery was therefore a necessary prerequisite for the uttering and publishing of which the Defendant was also convicted. Because there is no legislative intent to clearly authorize multiple convictions and cumulative punishments based upon one factual occurrence, the two convictions and punishment for forgery and uttering and publishing cannot stand. Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979).

Under People v. Grable, supra, this Court held forgery supplied the element of knowledge indispensible[114 MICHAPP 167] to a conviction for Uttering and Publishing; it is as if the Forgery merged into the latter offense, at least for double jeopardy purposes, so as to constitute but a single wrongful act. There is no evidence of knowledge that the instrument was false, apart from the fact of forgery. Consequently, we hold that the appropriate...