People v. Bennett

• Decision Date: 07 August 1978
• Docket Number: Docket No. 77-935
• Citation: 85 Mich.App. 68,270 N.W.2d 709
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Isaac BENNETT, Defendant-Appellant. 85 Mich.App. 68, 270 N.W.2d 709
• Court: Court of Appeal of Michigan — District of US

Page 709

270 N.W.2d 709

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Isaac BENNETT, Defendant-Appellant.

Docket No. 77-935.

85 Mich.App. 68, 270 N.W.2d 709

Court of Appeals of Michigan.

Aug. 7, 1978.

Released for Publication Oct. 20, 1978.

[85 MICHAPP 69] Charles A. Palmer, Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter Houk, Pros. Atty., Michael G. Woodworth, Asst. Pros. Atty., for plaintiff-appellee.

Before BASHARA, P. J., and KELLY and ALLEN, JJ.

KELLY, Judge.

Defendant was convicted on December 16, 1976, of larceny from a motor vehicle, M.C.L. § 750.356a; M.S.A. § 28.588(1), by an Ingham County Circuit Court jury. Immediately following the jury's verdict, defendant pled guilty to an information charging him with being an habitual offender, fourth offense, M.C.L. § 769.13; M.S.A. § 28.1085. On January 14, 1977, the trial court sentenced defendant to 21/2 to 10 years imprisonment. He [85 MICHAPP 70] appeals of right raising three issues, one of which is dispositive.

Defendant argues that the trial judge abused his discretion by allowing the prosecutor to impeach the defendant through the use of defendant's two 1975 convictions for larceny from a motor vehicle. He asserts that since these offenses were identical to the charged crime the jury could not help but be prejudiced. Three other 1975 felony convictions of the defendant were available for impeachment, and were crimes bearing more directly upon his credibility: two convictions for receiving or concealing stolen property over the value of $100, and one conviction for attempted forgery.

In exercising his discretion, the trial judge expressly revealed on the record his understanding of the law, and delineated its application to the facts before him, stating:

"The Court : Well, the Court recognizes clearly its responsibility to pass upon the matter of what previous offenses more correctly, what previous convictions may be inquired into by the Prosecuting Attorney when the Defendant takes the witness stand. This Court further recognizes that previous cases have set forth certain standards that a Court should consider in passing upon this matter. In U.S. versus Mahone (7th Cir.), 537 Federal Second 922, a 1976 case, the Court there indicated some five criteria and made reference to Winston on Evidence.

The criteria set forth in the Mahone case are these: One, the impeachment value of the prior crime. Two, the point in time of the conviction and the witness's subsequent history. Three, the similarity between the past crime and the charged crime. The importance of the Defendant's testimony. And, finally, the centrality of the credibility issue.

In an article in the Wayne Law Review, Volume 21, page 470, the author, James K. Robinson, discusses the matter of the use of prior convictions. I make mention [85 MICHAPP 71] of that only because the Court has considered and reviewed it before passing upon this subject. In People versus Townsend, (60 Mich.App. 204, 230 N.W.2d 378 (1975)) I don't know whether Mr. Edwards his this or touched upon this case, a Court of Appeals decision April 7, 1975. The Court there said the fact that prior criminal convictions which the Prosecutor seeks to use to impeach a Defendant's credibility are similar to the offense for which the Defendant is on trial does not require their exclusion. In our case the convictions relied upon by the Prosecutor are in close proximity of time with the case at hand. This lends or tends to cause the Court to lean towards admissibility.

It's to be observed that two of these offenses are for larceny from an auto. Two are receiving and concealing over a hundred, and the final one is for attempted forgery. All deal with or are concerned with dishonesty. Mention of this is for the purpose of attacking credibility, believability, the honesty of the Defendant, if you please, at least in part.

Having all of this in mind, this Court does exercise its discretion and will permit inquiry into these five offenses. It's to be observed that the Prosecuting Attorney is not attempting to utilize offenses ancient in time, far removed or offenses not indicative of dishonesty."

The trial judge, in his discretion, may admit evidence of defendant's prior convictions when the defendant testifies in his own behalf. People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974), M.C.L. § 600.2159; M.S.A. § 27A.2159. The trial judge reflected on the record that he was using his discretion when he ruled in favor of allowing all five of defendant's 1975 convictions into evidence. See People v. Cherry, 393 Mich. 261, 224 N.W.2d 286 (1974). This Court has been reluctant to disturb such a discretionary ruling. See E. g. People v. Gunter, 76 Mich.App. 483, 490-491, 257 N.W.2d 133 (1977).

We observe that the discretion of the trial judge [85 MICHAPP 72] is not unlimited, and any ruling that the trial judge makes is not automatically correct simply because he has stated on the record that he is exercising his discretion.

Upon a review of the instant facts we hold that the trial judge abused his discretion. Theoretically, he allowed the two prior convictions of larceny from a motor vehicle solely for the purpose of impeaching the credibility of the defendant. The reference to the three other convictions however, more than adequately served the purpose of...