People v. Fernandez
| Decision Date | 10 December 1986 |
| Docket Number | Docket No. 84320 |
| Citation | 396 N.W.2d 517,153 Mich.App. 743 |
| Parties | The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert Kim FERNANDEZ, Defendant-Appellant. 153 Mich.App. 743, 396 N.W.2d 517 |
| Court | Court of Appeal of Michigan — District of US |
[153 MICHAPP 745] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Peter D. Houk, Pros. Atty. and Robert B. Ebersole, Chief Appellate Asst. Pros. Atty., for the people.
James R. Neuhard, State Appellate Defender (by P.E. Bennett, Asst. Appellate Defender), Detroit, for defendant-appellant on appeal.
Before SHEPHERD, P.J., ALLEN and COOK *, JJ.
Defendant appeals as of right his conviction by jury of assault with intent to do great bodily harm less than murder, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279. Sentenced January 16, 1985, to four to ten years in prison, he appeals, raising three claims of error. We affirm.
The charges against defendant resulted from a fight on the curb outside defendant's home between defendant and Jeffrey Salazar in the early evening of July 13, 1984. It was the theory of the prosecution, as instructed to the jury, that the fight occurred when without provocation defendant challenged Salazar to fight, that Salazar had no desire to fight and no weapon but stood his ground, that defendant suddenly pulled a knife from his pocket and stabbed Salazar in the chest and that the wound penetrated the thoracic cavity within inches of the heart and liver causing the victim to remain in the hospital for four days.
The defense theory was that Salazar was the aggressor, that Salazar went to defendant's residence and caused a disturbance, that, after defendant and Salazar went outside the house, Salazar indicated he wanted to fight, and that, as Salazar rushed toward defendant, the defendant saw a [153 MICHAPP 746] knife on the ground, picked it up and in self-defense struck Salazar in the heart.
Three rulings by the trial court are the basis for defendant's claim of reversible error. At the beginning of trial, the prosecution moved in limine to allow the use of evidence of defendant's four prior convictions 1 for impeachment purposes under MRE 609, should defendant choose to testify. Over objection by defense counsel, the trial court ruled that evidence of the three prior convictions relating to theft might be used, but declined to permit use of evidence of the prior conviction for resisting arrest. Defendant testified in his own defense, and on direct examination defense counsel sought to introduce evidence of the prior convictions so as to diffuse such prejudice as might result from having the prosecution use them for impeachment. The prosecutor objected on the ground that counsel was impeaching his own witness. The trial court sustained the objection. On cross-examination, the prosecutor brought out the fact of the prior convictions.
At trial, the prosecution called John Doyan as a witness. Doyan testified that he had been at defendant's home earlier on the night of the offense, but denied that he saw the fight and could not recall that he had made statements to police officer Baylis that he had seen the fight and knew who did the stabbing. The prosecution then called Baylis as a rebuttal witness. Over defense counsel's objection, Baylis testified that he talked with Doyan subsequent to the stabbing and Doyan told him he had witnessed the stabbing and that defendant was the person who did it.
Citing this Court's opinion in People v. Roby, 145 Mich.App. 138, 140, 377 N.W.2d 366 (1985), and Justice Swainson's concurring opinion in People v. Jackson, 391 Mich. 323, 343-347, 217 N.W.2d 22 (1974), and relying heavily on decisions from other jurisdictions, 2 defendant argues that evidence of "prior convictions should not be permitted at all to attack the credibility of a defendant." Defendant reads Roby too broadly. Roby rejected a similar argument, stating only that the "claim is one of judicial policy that should be addressed to our Supreme Court." Jackson hinted at adopting the policy now advocated by appellant, but since that time the new Michigan Rules of Evidence have been adopted and subsequent decisions by both this Court and the Supreme Court have continued to admit evidence of a defendant's prior convictions, with the proviso that the trial courts should exercise their discretion to deny admission when admission of a conviction would create unfair prejudice. Until the Supreme Court rules otherwise, we see no reason to change the current policy.
Defendant also contends that the trial judge failed to properly consider the required factors for determining admissibility of evidence of the prior convictions. We disagree. MRE 609(a) provides for admission of evidence of felonies and crimes involving falsehood and dishonesty when the trial court determines that the probative value of such evidence in assessing credibility outweighs the prejudicial effect. The court must place on the record the factors considered in exercising its discretion. [153 MICHAPP 748] These factors are: (1) the nature of the previous conviction, (2) whether the conviction was for substantially the same conduct as the charged offense, and (3) the effect on the decisional process if the accused does not testify for fear of impeachment. People v. Cook, 131 Mich.App. 796, 803-804, 347 N.W.2d 720 (1984). The court must recognize that it has discretion in deciding to admit or exclude evidence of the prior convictions. People v. Carpenter, 120 Mich.App. 574, 327 N.W.2d 523 (1982).
Review of the transcript discloses that each of the above stated factors was met. The trial court carefully reviewed the four previous convictions, disallowed one, and allowed the remaining three after recognizing that, while there would be some prejudice in their admission, the probative value of admission outweighed the prejudice. Since the convictions so admitted were not for crimes similar to the crime charged, the second factor was satisfied. Because defendant did testify, fear of impeachment was not a problem.
In sustaining the prosecutor's objection to defense counsel's attempt on direct examination to bring to the jury's attention the fact of defendant's prior convictions, the trial court reasoned that it was improper for counsel to impeach his own witness. While it is established law that the party placing a witness on the stand vouches for the witness's credibility and may not, ordinarily, impeach the witness [People v. Saccoia, 268 Mich. 132, 255 N.W. 738 (1934) ], the prohibition is only applicable where the witness's credibility is being attacked. In the instant case, defense counsel was not seeking to attack defendant's credibility. Instead,[153 MICHAPP 749] counsel was seeking to reinforce defendant's credibility by forthrightly telling the jury about defendant's past transgressions. In People v. Peabody, 37 Mich.App. 87, 90, 194 N.W.2d 532 (1971), this Court held:
"A defendant should not be penalized because his lawyer seeks to soften the unfavorable impact on the jury of his client's conviction record by bringing it out himself rather than standing by so that the prosecutor can belabor it on cross-examination."
Accord, People v. Iaconnelli, 112 Mich.App. 725, 776, 317 N.W.2d 540 (1982).
According to the prosecutor the adoption of MRE 609 clearly changed the law since now evidence of past crimes may only be brought out "during cross-examination." The question raised is of first impression. We do...
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