People v. Crawford

• Citation: 83 Mich.App. 35,268 N.W.2d 275
• Decision Date: 08 May 1978
• Docket Number: Docket No. 30834
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dell CRAWFORD, Defendant-Appellant. 83 Mich.App. 35, 268 N.W.2d 275
• Court: Court of Appeal of Michigan — District of US

Page 275

268 N.W.2d 275

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dell CRAWFORD, Defendant-Appellant.

Docket No. 30834.

83 Mich.App. 35, 268 N.W.2d 275

Court of Appeals of Michigan.

May 8, 1978.

Released for Publication Aug. 1, 1978.

[83 MICHAPP 37] James R. Neuhard, State Appellate Defender by Lander C. McLloyd, Asst. State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William A. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief, Asst. Pros. Atty., Raymond P. Walsh, Asst. Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P. J., and CAVANAGH and RILEY, JJ.

T. M. BURNS, Presiding Judge.

Defendant was convicted of six counts of armed robbery, M.C.L.A. § 750.529; M.S.A. § 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, [83 MICHAPP 38] M.C.L.A. § 768.27; M.S.A. § 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.

I

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.

[83 MICHAPP 39] 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 [83 MICHAPP 40] 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. ¹

II

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 ² set out in that opinion would require that the evidence in this case be excluded.

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. Wilkins, at p. 270, 266 N.W.2d at p. 786. The jury was presented with testimony from two [83 MICHAPP 41] 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...