People v. Jones, Docket No. 78-4387

• Decision Date: 01 July 1980
• Docket Number: Docket No. 78-4387
• Citation: 296 N.W.2d 268,98 Mich.App. 421
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mearl E. JONES, Defendant-Appellant. 98 Mich.App. 421, 296 N.W.2d 268
• Court: Court of Appeal of Michigan — District of US

Page 268

296 N.W.2d 268

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mearl E. JONES, Defendant-Appellant.

Docket No. 78-4387.

98 Mich.App. 421, 296 N.W.2d 268

Court of Appeals of Michigan.

July 1, 1980.

Released for Publication Sept. 24, 1980.

[98 MICHAPP 423] Ronald Weitzman, Madison Heights, 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., for plaintiff-appellee.

Before KELLY, P. J., and CAVANAGH and ELLIOTT, ^* JJ.

ELLIOTT, Judge.

Defendant appeals of right from his conviction, by a jury, of larceny in a building M.C.L. § 750.360; M.S.A. § 28.592. He was sentenced to prison for two to four years.

FACTS

Defendant and a woman entered a jewelry store and asked to see wedding rings. While the woman tried to distract the salesman, the salesman and the cashier saw defendant lean over and grab an expensive diamond ring through the opened door in the back of a showcase. "Give me that ring", the salesman demanded. "What ring? I don't have a ring", defendant said. When the salesman yelled to the cashier, "Call the police", defendant passed something from his hand to the hand of the woman, who then ran from the store. Defendant quickly followed her. Several hours later the missing[98 MICHAPP 424] ring was found in the parking lot and returned by an honest woman, Elizabeth Hands.

The trial judge conducted a very patient and thorough inquiry before ruling that defendant's statements to the police were admissible. Defendant had falsely denied that he had signed a Miranda warning card and falsely claimed that he had been beaten. In his statement, defendant said he and his girlfriend were looking at rings when he was accused of taking one. He denied it and left. After his statement, he offered to take the police to her apartment. On the way there, he asked the detective what he would do for him and said he wanted to be released. When he was told that the detective couldn't make any promises, defendant refused to take the police to his accomplice.

Four years earlier, defendant had been arrested and convicted of larceny in a building. Later plea-bargaining reduced two separate breaking and entering charges to another conviction of larceny in a building and a conviction of attempted larceny in a building. The trial judge denied defendant's motion to bar use of his three prior convictions for impeachment; the motion was made after the Walker ¹ hearing and before the trial began. The trial judge referred to MRE 609 and noted that thefts are especially relevant to veracity.

Defendant chose not to testify and no evidence was presented in his behalf. In his final argument, defense counsel contended that the jury could not find that defendant "intended to permanently deprive the owner of its property".

Three claims are made on appeal:

I. Evidence of an intent to permanently deprive was insufficient as a matter of law.

[98 MICHAPP 425] II. Admission of defendant's statements was error.

III. The court erred in allowing use of defendant's three prior convictions for impeachment.

I. LARCENOUS INTENT

The only logical and reasonable inference to be drawn from the proven actions of the defendant and his accomplice is that they intended to steal the ring they took.

It has become popular to refer to the "intent to steal" which is necessary to larceny as the "intent to permanently deprive the owner of his property". See Chapter 23 of the proposed Michigan Criminal Jury Instructions. Unless there is evidence indicating an intention to return the property taken or that otherwise suggests that an intent to steal did not exist, the phrase "intent to steal" is really more accurate and more easily understood than the phrase that describes the mental element as the "intent to permanently deprive". Everyone, including jurors, basically understands the meaning of the commandment: "Thou shalt not steal." The chances are that some of the jurors have been tempted to steal something, sometime, themselves.

In the first place, at the time of a theft, the thief is only selfishly intent on his own personal gratification. Deprivation to a victim is a result, but it is not the purpose of a theft. Often the thief does not know who owns the stolen property and, usually, he does not care what happens to the victim. Because the thief is probably not thinking: "I want to permanently deprive the owner of this property," it is misleading to say that such a state of mind is an essential element of any larceny.

Secondly, the law does not require, in a literal [98 MICHAPP 426] sense, that a thief have an intent to permanently deprive the owner of the property. CJI Commentary, p. 23-11, observes:

"(O)ne may assume that as in other jurisdictions 'intent to deprive permanently' means in application 'lack of purpose to return the property with reasonable promptitude and in substantially unimpaired condition.' "

The current proposed revision of our criminal code, House Bill 4842, Section 3201(h), shows how much the words "permanently deprive" must be defined to get the phrase close to the true meaning of the word "steal". Sec. 3201(h) says:

" 'Permanently deprive' means doing any of the following:

(i) Withholding property or causing property to be withheld from a person permanently or for such an extended period or under such circumstances, so that a significant portion of the property's economic value or of the use and benefit of the property is lost to the person.

(ii) Disposing of the property in a manner which makes it unlikely that the owner will recover the property.

(iii) Retaining the property with the intent to restore the property to the owner only if the owner purchases or leases it back or pays a reward or other compensation for the property's return.

(iv) Selling, giving, pledging, or otherwise transferring any interest in the property.

(v) Subjecting the property to the claim of a person other than the owner."

In the case before us, however the intent is labeled, there was ample evidence from which a jury could find that it existed although Mrs. Hands found the ring in the parking lot later in the day.

II. DEFENDANT'S STATEMENTS TO THE POLICE

The standard of review of the ruling permitting [98 MICHAPP 427] use of a defendant's statements, admissions or confessions is stated in People v. Crawford, 89 Mich.App. 30, 279 N.W.2d 560 (1979). Rather than a definite and firm conviction that the trial judge erred, which would be necessary for us to reverse the trial judge, we have an independent conviction that he correctly assessed defendant's claims of police brutality and forgery as lies. We commend the trial judge for his initiative in obtaining evidence from a hospital and from a handwriting expert and for his patience during the hearing and trial.

III. THE MRE 609(a) QUESTION

A. Some General Observations

The purpose of the criminal justice process is to protect society, and accuracy should be its chief goal. The purpose of the rules of evidence, as stated in MRE 102, is " * * * to the end that the truth may be ascertained and proceedings justly determined." Perjury is the enemy of truth and accuracy. Perjury occurs often in criminal trials, especially by the defendant, who has the most to gain by it. The proper application and interpretation of the rules of evidence must come to grips with that fact.

MRE 609(a)(2) requires the judge to bar mention of a defendant's past crimes during his cross-examination unless the prejudicial effect of the disclosure is outweighed by the probative value of his record on the issue of credibility. There is a 10 year limit on all convictions, juvenile court histories cannot be used, and use of convictions for misdemeanors is forbidden unless the misdemeanor is especially relevant to veracity because it involves dishonesty, false statement or theft.

[98 MICHAPP 428] If the criminal conviction record that is the subject of an MRE 609(a) motion is extensive, it will indicate the defendant is a serious recidivist, a professional criminal. Often the series of convictions to be considered are for the same type of crime as the offense charged, because some professional criminals specialize in a particular crime. Armed robberies, narcotics sales, shoplifting, passing forged checks, burglaries or other criminal activity may become a life style. A professional criminal is apt to be a chronic liar. See Yochelson & Samenow, The Criminal Personality (New York: Jason Aronson, Inc., Vol. I, 1976, Vol. II, 1977).

When the defendant testifies, the trial often becomes a contest as to who is telling the truth. A defendant's testimony will usually disparage or contradict the evidence against him. Frequently the issue of credibility is a comparison of the believability of the alleged victim or of an eyewitness with the defendant's denial. Suppression of the defendant's usable conviction record clothes him with a false and undeserved impression of good character that may be given great weight by the jury.

People v. Baldwin, 405 Mich. 550, 275 N.W.2d 253 (1979) held that the similarity of a prior conviction to the offense charged increases its prejudicial effect and is a factor to be weighed against its use for impeachment. But frequently the probative value of a conviction, or series of convictions, is increased, proportionally or greater, on the issue of credibility because of that similarity. The principles underlying MRE 404(b) may bear upon the credibility issue, depending in part on the nature of the defense defendant's testimony presents, even if the similarities are not great enough so that the evidence would qualify under that rule.

[98 MICHAPP 429] When a victim says "He did it!" and the defendant says "I didn't," or "I was so drunk I didn't mean to," or even "I was ten miles away at the time," it is relevant to the central issue of who is telling the truth that the...