People v. Frey

• Decision Date: 08 June 1988
• Docket Number: Docket No. 100884
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Karl Leon FREY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 43

424 N.W.2d 43

168 Mich.App. 310

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Karl Leon FREY, Defendant-Appellant.

Docket No. 100884.

Court of Appeals of Michigan.

Submitted Feb. 10, 1988.

Decided May 2, 1988.

Released for Publication June 8, 1988.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Nathan T. Fairchild, Pros. Atty., for the People.

Karl Leon Frey, in pro. per.

Before KELLY, P.J., and HOOD and WARSHAWSKY, ^* JJ.

HOOD, Judge.

Following a jury trial, defendant was convicted of larceny over $100, M.C.L. Sec. 750.356; M.S.A. Sec. 28.588. Defendant subsequently pled guilty to being a third-felony habitual offender, M.C.L. Sec. 769.11; M.S.A. Sec. 28.1083, and was sentenced to from six years and eight months to ten years' imprisonment. Defendant appeals as of right. We affirm.

The charge arose out of an incident which occurred at the Foodland store in Adrian on November 20, 1986. On that date, a store employee, Rudolfo Lizcano, Jr., was working in the back room and saw defendant walk into the back room and pick up three egg boxes, which were large in size and made of cardboard. Defendant then walked out of the back room and into the front part of the store. Four other employees, manager Kirk Gilbert, Charles McGraw, Joy Gilbert, and Edna Agge, saw defendant put the egg boxes in a cart and wheel the cart over to a cigarette rack which stood at the end of one aisle. The cigarette rack was a tall, metal, three-sided rack on wheels. It was filled with cartons of cigarettes valued at between $9.29 and $9.59 each. Defendant pushed the rack out and went behind it and began removing cartons of cigarettes and putting them into the egg boxes. At this point, McGraw called the police. Officers Jerry D. Redlin, Gerald E. Brock, and Stanley J. Easler arrived. Officer Redlin went to the upstairs office and watched defendant from above. Officer Redlin "had previous knowledge of this type of situation where a suspect had ran [sic]," so he "made the decision to effect an arrest to ... prevent an escape." While Officer Brock went to the main door to block it, Officers Redlin and Easler arrested defendant. At the time of his arrest, defendant was walking down an aisle with a package of rolls in his hand. Officer Brock counted eighty-five cigarette cartons in the egg boxes. Defendant told Officer Easler his name was Ronald Mark Owens but, after giving the police his social security number, police discovered he was actually Karl Leon Frey. An inspection of defendant's car which was parked outside revealed that the license plate was held up with a pencil so that persons behind the car could not read the number. There were no credit cards, checks, or other forms of identification in the car. When defendant was booked at the jail by Officer Patricia J. Lennard, he had no identification, wallet, credit cards, or checks on him.

Defendant did not testify and presented no witnesses on his behalf.

The court instructed the jury on the crimes of larceny over $100, larceny in a building, attempted larceny over $100, and attempted larceny in a building. The jury found defendant guilty of larceny over $100.

On appeal, defendant's only issue is his claim that the trial court erred in denying his motion in limine brought before trial to suppress use of evidence of his 1986 conviction for attempted larceny in a building, for impeachment. Defendant claims that, because of the court's ruling, he chose not to testify and thus could not present a defense. The court denied the motion after finding that the conviction was less than ten years old, was for a felony, and that the probative value on the issue of credibility outweighed its prejudicial effect.

The decision to allow impeachment by evidence of prior convictions is within the discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. People v. Wilson, 107 Mich.App. 470, 475, 309 N.W.2d 584 (1981). On appeal, the people claim that the issue has been waived because defendant did not testify at trial. The people cite Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). In Luce, the defendant was charged with conspiracy and possession of cocaine with intent to distribute. The district court denied the defendant's motion in limine to suppress evidence of a prior conviction. The United States Court of Appeals for the Sixth Circuit affirmed, holding that, when the defendant does not testify, the court would not review the district court's in limine ruling. Luce, 469 U.S. 39-40, 105 S.Ct. at 462. The Supreme Court affirmed, holding that to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify. 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. 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.

"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,' New Jersey v. Portash, 440 US 450, 467 [99 S.Ct. 1292, 1301, 59 L.Ed.2d 501] (1979) (BLACKMUN, J., dissenting), a reviewing court cannot assume that the adverse ruling motivated a defendant's decision not to testify. In support of his motion a defendant might make a commitment to testify if his motion is granted; but such a commitment is virtually risk free because of the difficulty of enforcing it.

"Even if these difficulties could be surmounted, the reviewing court would still face the question of harmless error. See generally United States v. Hasting, 461 US 499 [103 S.Ct. 1974, 76 L.Ed.2d 96] (1983). 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, 469 U.S. 41-42, 105 S.Ct. at 463-464 (footnotes omitted).

Before Luce was decided, this Court on occasion reviewed cases wherein the defendants did not testify at trial, yet claimed the trial court erred in ruling that they could be impeached with a prior conviction. See People v. Jones, 98 Mich.App. 421, 427-435, 296 N.W.2d 268 (1980); People v. Casey, 120 Mich.App. 690, 693-697, 327 N.W.2d 337 (1982); People v. Pedrin, 130 Mich.App. 86, 343 N.W.2d 243, aff'd. 429 Mich. 558, 420 N.W.2d 499 (1988); People v. Johnson, 133 Mich.App. 150, 155-156, 348 N.W.2d 716 (1984). But see People v. Ferrari, 131 Mich.App. 621, 345 N.W.2d 645 (1983), lv. den. 421 Mich. 852 (1985). ¹ This Court did not hold in any of these cases that defendant had waived the issue of improper impeachment by his failure to testify; however, this Court did note the defendants' failure to testify and considered this to be a strong factor in favor of a holding that the trial court did not abuse its discretion in ruling that the defendants could be impeached with the prior convictions. ² In Pedrin, supra, the Michigan Supreme Court granted leave and instructed the parties to brief, as one of the issues, whether the Court should adopt the Luce rule in Michigan, 422 Mich. 972 (1985), Pedrin was consolidated with People v. Allen; People v. Brooks; People v. Gray, and People v. Smith, and the Supreme Court rendered its decision on January 19, 1988. People v. Allen, 429 Mich. 558, 420 N.W.2d 499 (1988). However, the Court did not reach the waiver issue, stating that the Court was unable to achieve a majority position, on the issue, and chose to reserve the question for another day. Allen supra, 429 Mich. at p. 613, 420 N.W.2d 499. Justices Boyle and Riley, dissenting, would have addressed the issue and would have adopted Luce. Id. (Boyle, J., dissenting, at p. 703, 420 N.W.2d 499; Riley, C.J., dissenting, at pp. 632-638, 420 N.W.2d 499). Justice Riley indicated she would apply the Luce rule only prospectively, however, because the defendants had done everything necessary to preserve the issue under the old rule and because adoption of the Luce rule was not foreseeable at the time of their trials. Id., (Riley, C.J., dissenting, at p. 638, 420 N.W.2d 499.)

In People v. Finley, 161 Mich.App. 1, 410 N.W.2d 282 (1987), this Court held that the Luce rule applied and that the defendant's claim of improper impeachment by a prior conviction was waived by his...