People v. Finley

• Citation: 431 N.W.2d 19,431 Mich. 506
• Decision Date: 17 October 1988
• Docket Number: No. 10,Docket No. 81221,10
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert L. FINLEY, Defendant-Appellant. Calendar431 Mich. 506, 431 N.W.2d 19
• Court: Supreme Court of Michigan

Page 19

431 N.W.2d 19

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert L. FINLEY, Defendant-Appellant.

Docket No. 81221.

Calendar No. 10.

431 Mich. 506, 431 N.W.2d 19

Supreme Court of Michigan.

Argued May 4, 1988.

Decided Oct. 17, 1988.

John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal Div., Research, Training and Appeals, Jeffrey Caminsky, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

State Appellate Defender Office by Peter Jon Van Hoek, Asst. Defender, Detroit, for defendant-appellant.

OPINION

RILEY, Chief Justice.

The issues in this case are whether we should require a defendant to testify at trial to preserve for review the issue of improper impeachment by prior convictions, and, if so, whether such a requirement should have prospective application only.

We find that the rationale underlying the above rule is sound, and hold that today's decision will apply in any case tried after the release date of this opinion. We further hold that, in cases now pending on appeal, review of the impeachment issue is preserved: 1) if the defendant had in fact testified at trial, or 2) if the defendant had expressed his intention to testify in the event his prior record was excluded and had stated the nature of his expected testimony. In the instant case, defendant did not testify, nor did he express his intention to testify or outline the nature of his proposed testimony. Thus, defendant has waived review of the issue.

FACTS AND PROCEEDINGS

Defendant was convicted by a jury in Wayne Circuit Court of four counts of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1); M.S.A. Sec. 28.788(2)(1), and of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. The judge sentenced defendant to five concurrent prison terms of forty to sixty years.

The victim testified that on October 16, 1984, at approximately 6:15 p.m., she was at a car wash vacuuming the floorboard of her automobile. Two assailants grabbed the back of her hair, pulled her from the automobile, and held a knife to her throat. The victim later identified her assailants as defendant, Robert Finley, and Thomas Vaughn. The men forced the victim into her car and proceeded to drive to several locations, alternately subjecting the victim to repeated acts of oral, anal, and vaginal intercourse. During the course of these events, defendant and Vaughn took approximately seventeen dollars from the victim to pay for gasoline, as well as several articles of jewelry.

Defendant and Vaughn eventually abandoned the victim on the side of an expressway and drove off in her car. The victim flagged down a passing motorist who took her to a nearby police station.

Defendant was arrested after the victim identified him from photographs. The victim also identified Vaughn, who faced charges as a codefendant but died before trial commenced.

On the first day of trial, defendant made a motion in limine to prevent the prosecution from using his prior felony conviction to impeach him if he testified. Approximately four years before trial, defendant had been convicted in Kentucky of burglary. Defendant did not express his intention to testify if his felony conviction was excluded. Nor did defendant inform the court of the expected nature of his testimony.

The trial court denied defendant's motion, apparently finding that the similarity of the prior burglary conviction to the armed robbery charge militated in favor of admission rather than exclusion. Defendant did not testify at trial.

On appeal, defendant argued that the trial court incorrectly weighed the similarity factor as favoring admission. See People v. Baldwin, 405 Mich. 550, 275 N.W.2d 253 (1979) (holding that similarity weighs against admissibility). The Court of Appeals agreed with defendant but declined to reverse his conviction. People v. Finley, 161 Mich.App. 1, 410 N.W.2d 282 (1987).

Instead, the Court adopted the rule of Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), which requires that in order to preserve the issue of improper impeachment by prior convictions, a defendant must testify at trial. In this case, since defendant did not testify, the Court held that the issue was not preserved for review.

We granted leave to appeal on defendant's application, limited to the issues whether this Court should adopt the Luce requirement, and, if so, whether that requirement should have prospective application only. 429 Mich. 894, 418 N.W.2d 93 (1988).

I. ANALYSIS

Under the Federal Rules of Evidence, the use of prior convictions to impeach a defendant's testimony is governed by FRE 609(a). ¹ In most cases, the judge will be required to balance the probative value of admitting the prior conviction with the prejudicial effect to the defendant. Where the probative value outweighs the prejudicial effect, the judge must admit the prior conviction.

The purpose of the Luce rule is to provide a mechanism for meaningful appellate review of the impeachment decision. In fact, the straightforward logic of Luce not grasped by either dissent is that as to evidentiary rulings, error does not occur until error occurs; that is, until the evidence is admitted. Obviously, in other contexts, if an offer of proof is made and the court erroneously permits the introduction of hearsay, character evidence, similar acts, or the myriad of evidence objectionable under the MRE, there is no error requiring reversal unless the evidence actually is introduced. Unless the defendant actually testifies, a number of questions remain open to speculation:

"Any possible harm flowing from a district court's in limine ruling permitting impeachment by a prior conviction is wholly speculative. The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant's proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling. On a record such as here, it would be a matter of conjecture whether the District Court would have allowed the Government to attack petitioner's credibility at trial by means of the prior conviction." Luce, supra 469 U.S. at 41-42, 105 S.Ct. at 463.

The Luce Court also noted that the prosecutor may not have attempted to impeach the defendant with the prior conviction. Where the case against the defendant is strong, or other avenues of impeachment are available, it is possible that the defendant's prior record would not have been used. Luce, supra at 42, 105 S.Ct. at 463.

In addition, a defendant's decision not to testify generally is based on many factors, no one of which is determinative. A reviewing court cannot assume that the defendant decided not to testify out of fear of impeachment by a prior conviction. Id. The Court rejected the suggestion that a defendant may state an intention to testify if the court grants the motion in limine because such a commitment is difficult to enforce. Id.

In the event that the trial judge incorrectly allows impeachment by prior conviction, the Luce rule enhances review of the harmless error issue:

"Were in limine rulings under Rule 609(a) reviewable on appeal, almost any error would result in the windfall of automatic reversal; the appellate court could not logically term 'harmless' an error that presumptively kept the defendant from testifying. Requiring that a defendant testify in order to preserve Rule 609(a) claims will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage making such motions solely to 'plant' reversible error in the event of conviction." Luce, supra at 42, 105 S.Ct. at 463.

A ruling in limine on impeachment by prior convictions does not present constitutional implications. Id. at 43, 105 S.Ct. at 464. As such, while Luce is binding on the federal courts, we are not required to apply its holding in Michigan courts. See People v. Turner, 390 Mich. 7, 19, 210 N.W.2d 336 (1973). However, as noted in People v. Allen, 429 Mich. 558, 636, 637, 420 N.W.2d 499 (1988) (Riley, C.J., dissenting), an overwhelming majority of states deciding the issue have adopted the Luce rule. ²

At the time of trial, the Michigan rule was similar to the federal rule. ³ However, very recently, this Court substantially revised MRE 609. ⁴

In Allen, a majority of this Court created a new framework with which to analyze the issue of impeachment by prior conviction. The Court established three categories of prior convictions: those inherently probative of truth or veracity are automatically admitted; those not inherently probative of truth or veracity are automatically excluded; and those involving a theft component are to be admitted or excluded at the trial judge's discretion.

The Allen Court also clarified the balancing factors to be considered where the prior conviction involved a theft component. The judge must determine whether the probative value of admitting the prior conviction would outweigh the prejudicial effect to defendant. In determining the probative value of the conviction, the judge must objectively consider only the vintage of the prior conviction and its indicia of veracity. Allen, supra at 606, 420 N.W.2d 499. The prejudicial effect must be determined by considering only the "similarity [of the prior conviction] to the charged offense and the importance of the defendant's testimony to the decisional process...." ⁵ Id. Defendant argues that the rules and practice of impeachment by prior convictions in Michigan are so dissimilar to the procedure in the federal system that the Luce rule is unnecessary. This Court's decision in Allen results in a more limited degree of discretion in the trial court than under the federal rules. As such, while appeals in the federal system will usually involve an abuse of discretion,...