People v. Finley

• Decision Date: 19 August 1987
• Docket Number: Docket No. 85133
• Citation: 161 Mich.App. 1,410 N.W.2d 282
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert L. FINLEY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 282

410 N.W.2d 282

161 Mich.App. 1

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

Docket No. 85133.

Court of Appeals of Michigan.

Submitted June 9, 1986.

Decided June 16, 1987.

Released for Publication Aug. 19, 1987.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Deputy Chief, Asst. Pros. Atty., and Lora Weingarden, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by Peter Jon Van Hoek, Detroit, for defendant-appellant on appeal.

Before DANHOF, C.J., and CYNAR and BATZER ^*, JJ.

BATZER, Judge.

Following a jury trial in Wayne Circuit Court, defendant was convicted of four counts of criminal sexual conduct in the first degree, M.C.L. Sec. 750.520b(1); M.S.A. Sec. 28.788(2)(1), and armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. The jury found defendant not guilty of kidnapping, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581. Sentenced to concurrent terms of forty to sixty years' imprisonment on each conviction, defendant appeals each as of right.

The 21-year-old victim testified as follows: She was vacuuming her automobile at approximately 6:20 p.m. on October 16, 1984, when she noticed two men staring at her. As she continued to vacuum, someone grabbed her by the back of her hair, pulled her out of the automobile, put a knife to her throat, and told her to get into her automobile. As she entered her automobile, the victim could see her assailants' faces. She identified defendant as one of her assailants.

The victim and defendant entered the front seat of her automobile. The second man, who the victim identified as Thomas Vaughn, entered the back seat. Vaughn put a knife to the victim's neck and threatened to kill her. As defendant drove, he ordered the victim to perform fellatio on him. Vaughn placed the knife at the victim's stomach and she did as defendant ordered. Defendant then drove to a parking lot and stopped the automobile. The victim was ordered into the back seat and defendant and Vaughn traded places. The men dumped the victim's purse. Vaughn drove while defendant engaged in vaginal intercourse with the victim and performed cunnilingus on her. Following these sexual acts, Vaughn stopped the automobile, traded places with the defendant, and also engaged in vaginal intercourse with the victim as defendant drove.

Defendant told the victim that Vaughn was crazy and had killed someone. Throughout the incident, defendant kept asking Vaughn for his gun, which Vaughn said was in his pocket. The victim never saw the gun.

The victim was forced to engage in several more acts of vaginal intercourse with her assailants and one act of anal intercourse with defendant before she was dropped off on the freeway. She was picked up by another driver and taken to a nearby police station. The victim estimated that she arrived there at approximately 8:15 p.m. In addition to taking her automobile, defendant and Vaughn took three gold rings, two gold necklaces, and approximately $17 from the victim.

The first issue raised is whether the trial court erred in ruling that defendant's credibility could be impeached with evidence of a prior conviction.

MRE 609(a) provides:

"For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if

"(1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and

"(2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination."

The decision whether to admit evidence regarding prior convictions for purposes of impeachment is within the discretion of the trial court. People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974). In exercising this discretion, the trial court must consider three factors: (1) the nature of the prior conviction (whether it involved an offense bearing directly on credibility, such as perjury); (2) whether the prior conviction is for substantially the same conduct for which the defendant is on trial (whether the offenses are so closely related that the jury would consider the defendant a "bad man" and convict him because of that rather than upon the evidence adduced as to the crime charged); and (3) the effect on the decisional process if the accused does not testify out of fear of impeachment by a prior conviction (whether there are alternate means of presenting a defense). People v. Crawford, 83 Mich.App. 35, 39, 268 N.W.2d 275 (1978).

Here, defendant's attorney moved prior to trial to exclude evidence of defendant's prior conviction for burglary. The trial court ruled that the prior conviction would be admissible to impeach defendant's credibility because it was similar to the charge of armed robbery. Defendant did not testify.

We agree that the trial court did not correctly apply the Crawford factors. However, we do not find that this error warrants reversal.

The admission of evidence of a defendant's prior conviction for a crime similar or identical to the crime charged does not per se result in error requiring reversal. People v. Stokes, 134 Mich.App. 146, 148, 350 N.W.2d 767 (1984). Where similarity weighs against admission, the prejudicial effect of that evidence must be balanced against two other factors: the extent to which the crime is probative of credibility and the effect of admission on defendant's decision not to testify. People v. Stokes, supra. Burglary is an offense highly probative of credibility. People v. Ferrari, 131 Mich.App. 621, 625, 345 N.W.2d 645 (1983); People v. Rush, 118 Mich.App. 236, 240, 324 N.W.2d 586 (1982). The effect the ruling had on defendant's decision is also highly questionable. First, defense counsel failed to establish defendant's desire to testify. Second, the crime of burglary is dissimilar to the crime of armed robbery in that burglary does not imply violence or the presence of a weapon. Burglary also implies some kind of illegal entry of a building, conduct totally dissimilar from the criminal sexual conduct and kidnapping charges brought against defendant. Furthermore, defendant had alternate means in which to present his alibi defense. The circumstances of this case readily distinguish it from People v. Williams, 413 Mich. 72, 318 N.W.2d 462 (1982), where the Supreme Court reversed the defendant's conviction because similar prior convictions were found admissible.

The effect the trial court's ruling had on the decisional process is also speculative as defendant did not testify. In Luce v. United States, 469 U.S. 38, 41-42, 105 S.Ct. 460, 463-64, 83 L.Ed.2d 443 (1984), the United States Supreme Court ruled that a defendant must testify in order to preserve the issue of improper impeachment by evidence of prior convictions. ¹ The Court reasoned:

"A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context. This is particularly true under Rule 609(a)(1), which directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant. To perform this balancing, the court must know the precise nature of the defendant's testimony, which is unknowable when, as here, the defendant does not testify.

"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....

"When the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction. If, for example, the Government's case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible prior conviction.

"Because an accused's decision whether to testify 'seldom turns on the resolution of one factor,' ... a reviewing court cannot assume that the adverse ruling motivated a defendant's decision not to testify....

"Even if these difficulties could be surmounted, the reviewing court would still face the question of harmless error.... 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." (Citations omitted.)

We find the Supreme Court's reasoning highly persuasive. ² We hold that defendant waived the issue of improper impeachment by his failure to testify. The present record is simply inadequate for us to meaningfully review the effect of the trial court's decision. We do not know whether defendant would have testified or what he would have testified. Nor can we determine whether the prosecutor would have actually attempted to have evidence of the prior conviction admitted. We decline to engage in such speculation.

Defendant further argues that the trial court erred in refusing to allow him to approach the jury during his attorney's closing argument.

The victim had described defendant as having brown, saggy eyes prior to identifying his photograph. During closing argument, defense counsel requested that defendant be allowed to approach the jury for the purpose of demonstrating that his eyes were green. No evidence concerning defendant's actual eye color had been admitted during the trial. The trial court denied defense counse...