People v. Graves

• Decision Date: 07 December 1979
• Docket Number: Docket No. 78-1865
• Citation: 296 N.W.2d 4,98 Mich.App. 112
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gabriel Lee GRAVES, Defendant-Appellant. 98 Mich.App. 112, 296 N.W.2d 4
• Court: Court of Appeal of Michigan — District of US

Page 4

296 N.W.2d 4

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gabriel Lee GRAVES, Defendant-Appellant.

Docket No. 78-1865.

98 Mich.App. 112, 296 N.W.2d 4

Court of Appeals of Michigan.

Dec. 7, 1979.

Released for Publication Sept. 24, 1980.

[98 MICHAPP 114] Theodore B. Sallen, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, Appellate Chief, Asst. Pros. Atty., Jerome O'Connor, Asst. Pros. Atty., for plaintiff-appellee.

Before BASHARA, P. J., and CAVANAGH and DANER, ^* JJ.

PER CURIAM.

Defendant appeals by right from his jury conviction of breaking and entering a place of business with intent to commit larceny therein. M.C.L. § 750.110; M.S.A. § 28.305.

[98 MICHAPP 115] We find that one of defendant's six issues raised on appeal requires reversal and one other deserves mention.

Defendant argues that the trial court abused its discretion by denying his motion to suppress his criminal record. This motion was first made after the prosecution had rested its case in chief. The trial court asked defense counsel what defendant's record was and the following brief exchange ensued:

"MR. HALL: He's on probation to you for uttering and publishing which is an unrelated offense and a B and E on his record several years ago. The Prosecution has introduced nothing regarding that offense as a modus operandi and I would say that's unrelated.

"THE COURT: I think it's a matter within my discretion. Motion denied."

At least a reference to the motion was repeated prior to defendant's taking the stand, but this reference was made by the prosecutor with defense counsel contributing as follows:

"MR. KING (Prosecutor): Yes, your Honor, and formally, I made a motion to suppress his client's criminal record, it's within my discretion under the appropriate case law.

"Mr. Hall (Defense Counsel ): I believe that's People versus Jackson.

"THE COURT: Right, there are a line of cases ending with People versus Jackson and that motion is denied.

"Bring them out."

It is by now well established that the trial court has discretion in deciding whether or not to allow impeachment of a defendant by evidence of prior convictions. People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974), M.C.L. § 600.2159; M.S.A. § 27A.2159. It [98 MICHAPP 116] has also been recognized that any ruling that the trial court makes is not automatically correct simply because it has been stated on the record that discretion is being exercised. People v. Bennett, 85 Mich.App. 68, 71-72, 270 N.W.2d 709 (1978), lv. den. 405 Mich. 835 (1979). Where impeachment of a defendant is to be accomplished through reference to convictions of crimes similar to the one being tried, that evidence should be admitted with caution. The more similar the prior conviction to the offense charged, the greater is the amount of caution required. People v. Green, 86 Mich.App. 142, 147, 272 N.W.2d 216 (1978). In People v. Crawford, 83 Mich.App. 35, 268 N.W.2d 275 (1978), we stated that a true exercise of discretion in deciding questions of this type entails a balancing of the factors prescribed by this Court. Crawford, supra, 39, 268 N.W.2d 275. When one considers the trial court's responses reprinted above, especially in light of the fact that one of defendant's prior convictions was for the same crime charged at defendant's trial, it becomes apparent that the trial court did not exercise its discretion in this matter. (The fact that the prosecutor saw fit to move for suppression of evidence of the prior convictions emphasizes that lack of deliberation on the part of the trial court.)

Given the trial court's ruling, defense counsel elicited from defendant on direct examination an affirmative response as to whether defendant had ever been convicted of a crime. Upon cross-examination the prosecutor raised the matter in the following manner:

"Q Have you ever been convicted of a felony before?

"A Yes.

"Q Have you been convicted of more than one felony?

"A Yes.

[98 MICHAPP 117] "Q How many?

"A Two, three."

Two very recent cases in this Court addressed the novel issue of the effect of admitting evidence of a criminal defendant's unspecified "felonies" for impeachment purposes. These cases differ from the present one inasmuch as it was the trial court that decided to refrain from designating what types of felonies the defendants had previously committed. In this case, it was apparently the prosecutor's decision to limit impeachment to mention of "felonies", perhaps because of the identity of the crime charged and one prior conviction. (This inference would be supported by the prosecution's attempt to suppress defendant's prior record.) As the two recent decisions point out, "At the very least, proof of an unspecified 'felony' conviction prevents 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". People v. Jones, 92 Mich.App. 100, 112, 284 N.W.2d 501, 506 (1979). People v. Garth, 93 Mich.App. 308, 287 N.W.2d 216 (1979). See also MRE 609. We find, therefore, that the trial court abused its discretion, rather than truly exercising discretion, and that this failure prejudiced defendant so that reversible error was committed.

Our other concern relates to a statement made by defendant after being taken into custody on the night of the offense. The prosecutor explicitly stated that that statement was inadmissible, and accordingly asked defense counsel to waive production of the officer witness who took the statement. Defense counsel complied. Nevertheless, the prosecutor[98 MICHAPP 118] opened a barrage of questions on this subject beginning with whether defendant remembered making the statement, which he admitted, and proceeding with the specific questions and answers contained therein. No objection was raised by defense counsel. On redirect examination defendant volunteered that the officer for whom defendant had signed a constitutional rights form was white, not a black officer. In rebuttal, the prosecutor had the officer who procured the statement testify to witnessing defendant sign the statement in order to demonstrate that he was a black officer. Then, in closing, the prosecutor made these remarks:

"Now, the Defendant got up and testified, he testified that he had been convicted of three felonies. I showed him a statement and he denied making that statement and that wasn't his signature and didn't know what officer was involved. That's the reason I called Sergeant Green. Sergeant Green isn't white, he's black, he told you he took that statement and the Defendant signed that statement. You'll have an opportunity to look at that statement."

We have no record established as to the reasons for which defendant's statement could be held to be inadmissible, as defendant alleges it should be. This failure must be ascribed to defense counsel for failing to request a Walker ¹ hearing before trial, at the time when the prosecutor apparently changed his mind and referred to the statement, or even after judgment was rendered. Moreover, defense counsel was curiously silent when the prosecutor did raise the subject after he had made representations to the contrary. People v. Stephens, [98 MICHAPP 119] 71 Mich.App. 33, 37-38, 246 N.W.2d 429 (1976), refutes defendant's allegation, however, in that it holds that absent defense counsel's request, the trial court is not obliged to determine the voluntariness of an accused's extrajudicial statement.

We do feel that the rebuttal testimony directed towards the collateral matter of whether the officer who took the statement was white or black was improper because it did not relate to "the refutation of relevant and material evidence". People v. Bennett, 393 Mich. 445, 449, 224 N.W.2d 840, 842 (1975). The race of the officer who took defendant's statement is hardly a relevant and material issue in this case, and defendant never denied making a statement as the prosecution contends. The prosecution's attachment of an affidavit to their brief on appeal attesting to the "Afro-American heritage" of the officer in question underlines the purpose of the rule of restricting impeachment to relevant and material issues. But, given defense counsel's failure to preserve this issue, and the likelihood that the rebuttal testimony did not affect the verdict, this error must be considered harmless. People v. Meadows, 80 Mich.App. 680, 686-689, 263 N.W.2d 903 (1977).

Reversed.

BASHARA, Presiding Judge, dissenting.

I respectfully dissent. The issue presented for determination by this Court is whether an abuse of discretion is shown when a trial judge,...