People v. Johnson

• Citation: 105 Mich.App. 332,306 N.W.2d 501
• Decision Date: 09 April 1981
• Docket Number: Docket No. 43994
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary JOHNSON, Defendant-Appellant. 105 Mich.App. 332, 306 N.W.2d 501
• Court: Court of Appeal of Michigan (US)

Page 501

306 N.W.2d 501

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary JOHNSON, Defendant-Appellant.

Docket No. 43994.

105 Mich.App. 332, 306 N.W.2d 501

Court of Appeals of Michigan.

April 9, 1981.

Released for Publication June 16, 1981.

[105 MICHAPP 335] Angela R. Sims, Detroit, 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., Frank J. Bernacki, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P. J., and BRONSON and DEMING, ^* JJ.

PER CURIAM.

Defendant was convicted, after a jury trial, of breaking and entering an occupied dwelling with the intent to commit criminal sexual conduct, M.C.L. § 750.110; M.S.A. § 28.305, and of criminal sexual conduct in the third degree, M.C.L. § 750.520d(1); M.S.A. § 28.788(4)(1). He was sentenced to serve concurrent prison terms of 10 to 15 years. His motion for a new trial was denied by the trial court on the day of sentencing and defendant now appeals by right.

Defendant raises 11 claims of error in this appeal and we find that one requires reversal. Prior [105 MICHAPP 336] to trial, defendant moved in limine to exclude reference to his prior convictions should he testify in his own behalf. The record reveals that the motion was summarily denied. When pressed for the basis of the ruling, the trial court stated only that it recognized that it had discretion over whether the evidence would be admitted. No mention was ever made of the nature, age, or extent of defendant's prior convictions nor did the trial court indicate the basis for the exercise of its discretion. The prosecution offered no argument on the motion.

Defendant did not take the stand in his own defense and the jury found him guilty on both counts. After conviction, defendant brought a motion for a new trial which was heard and denied immediately after defendant was sentenced. Error was premised on the trial court's denial of defendant's motion in limine. At this stage of the proceedings the trial court examined more closely the nature, age, and extent of defendant's prior convictions and undertook to balance them. However, not all of the factors necessary to rendering an informed exercise of discretion were considered. On this basis the trial court denied the motion, reaffirming its prior ruling that all of defendant's prior felony convictions were admissible.

If we were to concentrate solely on the trial court's original denial of defendant's motion in limine, we would have no doubt that reversible error occurred. The decision to admit evidence of prior convictions rests in the sound discretion of the trial court. People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974). The trial court must recognize its discretion on the record. People v. Cherry, 393 Mich. 261, 224 N.W.2d 286 (1974). The evidence may be admitted if, in the exercise of its discretion, the trial court finds "that the probative value [105 MICHAPP 337] of admitting this evidence on the issue of credibility outweighs its prejudicial effect". MRE 609(a)(2). ¹

This Court, based on the Supreme Court's opinion in People v. Jackson, supra, 391 Mich. 333, 217 N.W.2d 22 has held that the trial court must weigh three factors in reaching a decision on this issue:

"The factors which the judge must weigh in making his determination include: (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?)." People v. Crawford, 83 Mich.App. 35, 39, 268 N.W.2d 275 (1978).

Although it has been stated that the record should affirmatively reflect the trial court's awareness of the Crawford criteria, People v. Joyner, 93 Mich.App. 554, 560-561, 287 N.W.2d 286 (1979); People v. Roberson, 90 Mich.App. 196, 204-208, 282 N.W.2d 280 (1979), lv. den. 407 Mich. 908 (1979) (D. C. Riley, J., dissenting), it has also been held [105 MICHAPP 338] that this is not necessary where there is no showing of an affirmative misapplication of the three criteria. People v. Roberson, supra, 202, 282 N.W.2d 280. See People v. Wakeford, 94 Mich.App. 249, 251, 288 N.W.2d 381 (1979). ² A split exists on this last proposition however. This Court has reversed some cases where prior convictions have been ruled admissible even though no affirmative misapplication of the Crawford factors on the record is apparent. People v. Bennett, 85 Mich.App. 68, 72, 270 N.W.2d 709 (1978), lv. den. 405 Mich. 835 (1979); People v. Featherstone, 93 Mich.App. 541, 544, 286 N.W.2d 907 (1979).

The record of the hearing on the motion in limine reveals no discussion of the Crawford criteria. We believe, however, that, even if the trial court is not required to balance these factors on the record, the trial court in the instant case abused its discretion in denying the defendant's motion in limine. We first note that the burden is on the prosecution to justify the need for impeachment by evidence of prior conviction. Crawford, supra, 83 Mich.App. 38, 268 N.W.2d 275; People v. McCartney, 60 Mich.App. 620, 231 N.W.2d 472 (1975). In the instant case, however, the prosecution did not speak a word in behalf of the admission of such evidence. The entire discussion of the issue took place between defense counsel and the trial court. In addition, the nature and extent of the defendant's record was never specified during the hearing on the motion. The conclusion that the trial court was unaware of the specifics of the defendant's prior [105 MICHAPP 339] record is bolstered by the fact that, after the jury returned its verdict, the trial court informed the jury that defendant had two prior rape convictions when in fact his only prior felony convictions were for assault with intent to rob while unarmed and gross indecency. We do not believe that a trial court can adequately exercise its discretion in accordance with the Crawford criteria, whether on or off the record, when it is unaware of just what prior convictions the defendant is burdened with.

These errors were, to some extent, corrected in the hearing on defendant's motion for a new trial. ³ At this stage of the proceedings, the prosecution argued in support of the trial court's decision to allow impeachment by evidence of prior conviction and the trial court recognized the Crawford criteria as well as the specifics of defendant's record. Nonetheless, we believe the trial court did abuse [105 MICHAPP 340] its discretion both in failing to agree to exclude evidence of his gross indecency conviction and in refusing to grant a new trial.

Gross indecency is a crime which is similar to the charged offense of criminal sexual conduct in the third degree in that both involve sexual misconduct. The second Crawford criterion recognizes that there is a danger inherent in admitting evidence of similar convictions, because the jury may use the evidence for more than its proper purpose of impeachment and convict the defendant as a bad person or infer that, because he had engaged in sexual misconduct in the past, it is likely he committed the crime charged. As a result, such evidence should be admitted only with the utmost caution. People v. Baldwin, 405 Mich. 550, 275 N.W.2d 253 (1979); People v. Moseley, 94 Mich.App. 461, 464, 290 N.W.2d 39 (1979); Bennett, supra. See, also, Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967). At the hearing on the motion for a new trial, however, the trial court, while initially recognizing the Crawford criteria, failed to examine the similar nature of defendant's gross indecency conviction to the charged offense. The trial court noted that defendant had felony convictions for assault with intent to rob while unarmed and gross indecency, that the convictions had taken place within 10 years of the trial, and that the assault conviction went to the issue of credibility because it involved theft. After observing that admission of evidence of prior convictions would always be prejudicial, the trial court concluded that the probative value of the evidence outweighed its prejudicial effect and reaffirmed its previous ruling by denying the motion for a new trial.

We believe that application of each of the three [105 MICHAPP 341] Crawford criteria leads to the conclusion that the trial court abused its discretion in refusing to suppress defendant's gross indecency conviction. Considering the first factor, the nature of the offense, gross indecency does not directly bear on the issue of credibility in the way that a conviction for perjury, or perhaps a theft-related offense, would. Accordingly, the probative value of admitting evidence of this conviction was not particularly high. The second factor, the similarity between the prior conviction and the charged offense, clearly weighed against admissibility. Because both gross indecency and the charged offense involve sexual misconduct, the prejudicial effect of the evidence was high because of the possibility that the jury would use the evidence for more than its permissible purpose. The third factor focuses on whether less prejudicial means of impeaching the defendant, exists, and, in the instant case, this factor also weighs against the...