People v. Hogan, Docket No. 78-4171

• Decision Date: 21 April 1981
• Docket Number: Docket No. 78-4171
• Citation: 307 N.W.2d 72,105 Mich.App. 473
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larrie Rasdale HOGAN, Defendant-Appellant. 105 Mich.App. 473, 307 N.W.2d 72
• Court: Court of Appeal of Michigan — District of US

Page 72

307 N.W.2d 72

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larrie Rasdale HOGAN, Defendant-Appellant.

Docket No. 78-4171.

105 Mich.App. 473, 307 N.W.2d 72

Court of Appeals of Michigan.

April 21, 1981.

Released for Publication July 2, 1981.

[105 MICHAPP 476] James R. Neuhard, State Appellate Defender, Peter Jon Van Hoek, Asst. State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, III, Chief Appellate Asst. Pros. Atty., Michael F. Bakaian, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and KELLY and SULLIVAN, ^* JJ.

SULLIVAN, Judge.

Defendant, Larrie Hogan, was convicted by a jury on August 1, 1978, of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). He was sentenced on August 8, 1978, to from 15 to 25 years in prison for the armed robbery and to two years for the felony-firearm offense. Defendant appeals as of right.

The alleged robbery took place on the night of March 23, 1978, at the residence of Nathaniel [105 MICHAPP 477] Conners in Detroit. Living with Conners were Roscoe Childs, Odessa Thomas, and Conners' grandson, Marcus Buckner. At about 10:00 p. m., Buckner answered a knock at the door and was confronted by two armed men. One of the men took money from Conners' pocket and then forced him to lie on the bathroom floor. The men ransacked Conners' room, taking about $130, a movie camera, a rifle, and a P-38 pistol. Conners was able to identify defendant as one of the two men. He testified that defendant also took his car keys and warned him, "If you want your grandson to live, don't do anything".

Odessa Thomas was also forced to lie on the bathroom floor while her purse, wallet, and gold watch were taken from her bedroom. Ms. Thomas identified defendant both at a police lineup and at trial. Roscoe Childs testified that he was told to get under his bed as his room was searched. Childs was unable to identify either of the two robbers.

Buckner testified that he has known the defendant since 1974 and that the defendant was not one of the assailants. He stated that the men forced him to drive them off in his grandfather's car. As they pulled away, a red car followed them. Once down the street from the residence, he was told to lie in the back while one of the men drove. At a second location, the men left the car and Buckner walked home. He later led the police to his grandfather's car; a red Chevrolet was found parked nearby.

Walter Shannon, a friend of Nathaniel Conners, was visiting across the street that night when he noticed a strange brown car parked in the alley. He wrote down its license number and later observed it following Conners' auto down the street. The license number was later traced by the police [105 MICHAPP 478] to a vehicle registered to Linda Walls. Detroit Police Sergeant James Morrison testified that he and another officer went to Walls' apartment, drew their revolvers, and knocked on the door. A male voice asked, "Who's there?" and Morrison replied, "Police officers". Defendant opened the door and stood there holding a P-38 pistol. He backed up, dropped the gun, and was arrested. At the trial, Nathaniel Conners identified the pistol as that taken during the robbery.

The defendant testified that he drove Linda Walls to work at 5:30 p. m. on the evening of March 23 and that he went to bed at 9:30 p. m. The following morning he woke to go to work, and the car was gone. The defendant reported the car as stolen to the police. He also testified that he had taken the pistol from a friend named Robertski on the night following the robbery. One night later, Robertski called to say he was picking up the gun, but when defendant answered a knock on the door five minutes later he was faced instead by the police.

The defendant had two prior convictions, for assault with intent to commit robbery while being armed and for unlawfully using an automobile. After the court briefly reviewed the defendant's record, the following colloquy took place:

"THE COURT: He was convicted of Unlawfully Using an Automobile. Placed on probation with $375 costs.

"DEFENDANT HOGAN: That was in '74.

"THE COURT: Plus attorney fees.

"3/18/75, according to the conviction sheet, for Robbery Armed in 1975. Given three to twenty in the State Prison at Southern Michigan by Judge Gillis with a plea to Assault with Intent to Rob Being Armed.

"Counsel, Court Rule 609, Michigan Rules of Evidence, indicates that if he has been convicted of a crime [105 MICHAPP 479] that shall be admitted, and if the crime was punishable by debt (sic ) or imprisonment in excess of one year, and both of those certainly fall within that category, or regardless of it, if it shows theft, dishonesty, or false statement.

"I think both of those are directly on point. I will deny your Motion, counsel.

"MR. FOLEY (Prosecuting attorney ): Your Honor, I would ask this Court to exercise its discretion in determining whether or not the probative value outweighs the prejudicial.

"MR. GARBER (Defense counsel ): Under People versus Jackson

"THE COURT: (interposing) Yes. I don't think that the prejudicial value would outweigh the probative value.

"MR. GARBER: Thank you, Your Honor."

MRE 609 controls the use of prior convictions for impeachment purposes. At the time of the defendant's trial it read, in pertinent part:

"(a) General rule. 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."

It is apparent that the trial court decided to deny the defendant's motion after determining that the conviction satisfied the requirements of MRE 609(a) (1). The conclusion that prejudice would not outweigh the probative value of the [105 MICHAPP 480] evidence was a mere afterthought provoked by the prosecutor's request and not an exercise of discretion. Although a trial judge does not specifically have to state that he is exercising his discretion, the record must at least indicate that he was aware that he possessed it. People v. Makidon, 84 Mich.App. 287, 289, 269 N.W.2d 568 (1978). Nonetheless, a true exercise of discretion is necessary with the court balancing the competing factors involved. People v. Crawford, 83 Mich.App. 35, 38, 268 N.W.2d 275 (1978). In Crawford, this Court articulated three factors to be weighed:

"(1) the nature of the prior offense (did it involve an offense which directly bears on credibility, such as perjury?), (2) whether it is for substantially the same conduct for which the defendant is on trial (are the offenses so closely related that the danger that the jury will consider the defendant a 'bad man' or infer that because he was previously convicted he likely committed this crime, and therefore create prejudice which outweighs the probative value on the issue of credibility?), and (3) the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions (are there alternative means of presenting a defense which would not require the defendant's testimony, i. e., can his side of the story be presented, or are there alternative, less prejudicial means of impeaching the defendant?)." Id. 39, 268 N.W.2d 275.

The perfunctory comments of the trial court lead us to the conclusion that these factors were not considered. We are persuaded that had the court properly exercised its discretion, the defendant's conviction for assault with intent to commit armed robbery would have been excluded. That offense is nearly identical to that for which defendant was being tried, and it could have been expected to have been highly prejudicial in the [105 MICHAPP 481] eyes of the jury. Further, the nature of the misidentification defense posed was such that effective presentation necessitated the defendant's own testimony.

Because the trial judge failed to exercise properly his discretion when called upon to exclude evidence of the defendant's prior convictions, we reverse and remand for a new trial.

Because retrial is possible, we discuss the defendant's other allegations of errors. Initially, defendant contends that the prosecution improperly impeached res gestae witness Marcus Buckner. The prosecution elicited testimony that Buckner had identified the defendant previously and questioned Buckner as to his arrest the day before on a bench warrant. The defendant failed to object in either instance.

MRE 613 provides that a witness may be examined concerning a prior oral statement if its substance and the time, place, and person to whom the statement was made are disclosed. Extrinsic evidence of an inconsistent statement is admissible if the witness is afforded the opportunity to explain or deny and the opposing party is allowed to interrogate him thereon.

After Buckner testified that defendant was not one of the robbers, he was informed by the prosecutor of the time place, and person to whom he allegedly made a previous statement identifying defendant. Buckner then stated that he did not remember being asked if he knew the robbers or actually telling the officer that he did know them. The questions provided sufficient foundation for the admission of extrinsic evidence of the prior statement. However, the officer who actually took the statement merely testified that he spoke to Buckner and that Buckner stated that he could [105 MICHAPP 482]...