People v. Garth

• Citation: 287 N.W.2d 216,93 Mich.App. 308
• Decision Date: 05 November 1979
• Docket Number: 78-2109,Docket Nos. 77-5055
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony GARTH, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John COLLINS a/k/a John Davis, Jr., Defendant-Appellant. 93 Mich.App. 308, 287 N.W.2d 216
• Court: Court of Appeal of Michigan (US)

Page 216

287 N.W.2d 216

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony GARTH, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John COLLINS a/k/a John Davis, Jr., Defendant-Appellant.

Docket Nos. 77-5055, 78-2109.

93 Mich.App. 308, 287 N.W.2d 216

Court of Appeals of Michigan.

Nov. 5, 1979.

Rehearing Denied Dec. 13, 1979.

Released for Publication Jan. 29, 1980.

[93 MICHAPP 312] James R. Neuhard, State Appellate Defender by Lander C. McLoyd, Asst. State Appellate Defender, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Eugene C. Penzien, Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and V. J. BRENNAN and CARROLL, ^* JJ.

[93 MICHAPP 313] DANHOF, Chief Judge.

This case raises one important issue concerning impeachment of a defendant's credibility by evidence of his prior conviction: Rather than allowing impeachment by proof of a specifically described prior felony conviction or completely excluding any evidence of the conviction, may a trial judge in his or her discretion permit the trier of fact to be informed only that the defendant had committed a prior nonspecified "felony"? ¹

Defendants were charged with breaking and entering an occupied dwelling with intent to commit larceny, M.C.L. § 750.110; M.S.A. § 28.305, and larceny in a building, M.C.L. § 750.360; M.S.A. § 28.592. Both defendants filed pretrial motions In limine to have evidence of their prior convictions excluded. Defendant Collins had previously been convicted of attempted receiving and concealing stolen property, while defendant Garth had a prior felony record for carrying a concealed weapon and larceny over $100. The latter conviction was of such recent origin that Garth had not yet been sentenced for it. ²

At the subsequent hearing on this motion, defense attorneys, prosecutor and trial judge engaged in a vigorous, quite thorough discussion on the relative merits of admitting or excluding evidence of the defendants' prior felony convictions. Among the points raised by the defense attorneys were the prejudicial similarity of two of the prior convictions to the offenses charged and the irrelevance[93 MICHAPP 314] of a concealed weapons offense to defendant Garth's credibility. ³

Finally, the prosecutor suggested that the trial judge allow him to introduce the fact that defendants had prior unspecified felony convictions along with the dates of those convictions. When asked whether they objected to this suggestion, the defense attorneys assented to it on the condition that the prosecutor exclude any reference to the dates of conviction. The judge accordingly ruled that the prosecutor could only ask defendants whether they had previously been convicted of "a felony". Neither defendant chose to testify at trial, and both were convicted as charged.

We first find that the defense attorneys' failure to press further for complete exclusion of evidence of defendants' prior convictions was not a waiver of the issue for purposes of appellate review. Although the judge had at the time only stated that proof of the concealed weapon offense would be admissible to impeach Garth's credibility, the defense attorneys may well have feared that any objections to the prosecutor's compromise suggestion would result in a ruling that evidence of all three prior convictions specifically described, was admissible. Under the circumstances, the attorneys are not to be faulted for choosing the lesser of two perceived evils on their clients' part.

We further find that the trial judge recognized his discretionary power to admit or exclude evidence of defendant's prior convictions, People v. Jackson, 391 Mich. 323, 336, 217 N.W.2d 22 (1974), [93 MICHAPP 315] and that he sought to exercise that discretion by weighing the probative value of evidence of the prior convictions against their prejudicial effect. Although we commend his efforts, we cannot agree with the solution he reached in this case.

The propriety of allowing impeachment of a witness by evidence of a prior unspecified felony conviction has only recently been addressed by this Court for the first time in People v. Jones, 92 Mich.App. 100, 284 N.W.2d 501 (1979). The defendant in Jones was brought to trial in 1977 on four charged offenses including kidnapping, breaking and entering an occupied dwelling with intent to kidnap, assault with a gun and assault with a knife. He also had a prior felony record for second-degree murder in 1967, burglary in 1960 and grand larceny in 1952. The trial judge refused to exclude evidence of the latter two convictions, but ruled that the murder conviction could only be referred to as "a felony" at trial because the jury might otherwise view the conviction as similar to the kidnap charge. ⁴ This Court on appeal held that the judge abused his discretion in allowing proof of the two property crimes because they were too old to reflect on defendant's credibility at the time of trial.

The Jones Court also reversed the trial court's decision to allow proof of the murder conviction as "a felony":

"Proof of an unspecified 'felony' conviction invites a jury to speculate on the nature of the crime * * * . At the very least, proof of the unspecified 'felony' conviction[93 MICHAPP 316] presents rational evaluation of the impact of the defendant's past conduct on his credibility and therefore cannot serve the sole purpose for which it was to be presented; at the most, it informs the jury that a 'felon' is on trial for yet another felony.

"(P)resentation of evidence of an unspecified 'felony' conviction for purposes of impeaching the defendant's credibility says nothing of the conduct that is asserted to bear negatively on the defendant's reliability as a witness while presenting a very substantial possibility of jury speculation and consequent prejudicial impact upon the rights of the accused. The very difficult questions presented by the use of evidence of prior convictions for impeachment must be decided rather than compromised; * * * ." 92 Mich.App. at 113, 284 N.W.2d at 506-507.

We agree with this reasoning and conclude that reversal is mandated in this case.

The basic premise underlying impeachment by evidence of a prior felony conviction is that any past felony committed by a witness is to some degree relevant to that individual's credibility. See M.C.L. § 600.2159; M.S.A. § 27A.2159 and M.C.L. § 600.2158; M.S.A. § 27A.2158 for the statutory authority condoning impeachment of witnesses' credibility by evidence of a prior conviction. Cf., MRE 609, effective 3/1/78.

But the probative value of evidence of prior convictions on the issue of credibility as well as its prejudicial effect perforce varies with the circumstances of the individual case. See Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967), and Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763, 767-769 (1965), for discussions of the variables involved. Based on this common [93 MICHAPP 317] sense consideration and on its interpretation of M.C.L. § 600.2158 and M.C.L. § 600.2159, the Michigan Supreme Court has held that the trial court must exercise its discretion to balance probative and prejudicial aspects of the prior conviction evidence. If the prejudicial effect outweighs the probative value, the evidence must be excluded from trial. See Jackson, supra.

The purpose of requiring a trial court to thus exercise its discretion is in keeping with the court's responsibility to control trial proceedings so as to aid the trier of fact in ascertaining the truth of the case. Where impeachment of a criminal defendant is at issue, the court must often make the difficult determination whether the jury would profit from the opportunity to have defendant's credibility impeached by evidence of prior convictions or whether, alternatively, its quest for truth would be stymied if the defendant failed to testify out of fear of the prejudice resulting from evidence of the convictions. See Jackson, supra, 391 Mich. at 332-333, 217 N.W.2d 22, quoting from Luck, 348 F.2d at 768. See also People v. Crawford, 83 Mich.App. 35, 39-40, 268 N.W.2d 275 (1978).

We conclude that the procedure employed below, allowing impeachment by evidence of a prior nonspecified felony conviction, does not aid the trier of fact in judging a defendant's credibility while affording a strong potential for prejudicing the defendant.

Felony convictions cover a wide range of activities from advocating polygamy, M.C.L. § 750.441; M.S.A. § 28.696, through perjury in a court of law, M.C.L. § 750.422; M.S.A. § 28.664, to...