People v. Kelly

• Decision Date: 08 January 1976
• Docket Number: Docket No. 21891
• Citation: 239 N.W.2d 691,66 Mich.App. 634
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis KELLY, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 691

239 N.W.2d 691

66 Mich.App. 634

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis KELLY, Jr., Defendant-Appellant.

Docket No. 21891.

Court of Appeals of Michigan.

Jan. 8, 1976.

Released for Publication March 24, 1976.

Clinical Advocacy Program of Wayne State University Law School by John L. Barkai, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, App. Chief Asst. Pros. Atty., Timothy A. Baughman, Asst. Pros. Atty., for plaintiff-appellee.

Before BASHARA, P.J., and WALSH and WHITE, ^* JJ.

PER CURIAM.

Defendant was convicted by a jury of larceny under $100, M.C.L.A. § 750.356; M.S.A. § 28.588, and appeals.

On July 15, 1974, the defendant entered the Medicine Chest Drug Store. The defendant asked to see the pharmacist and was directed to the rear of the store. He was subsequently seen by a security guard leaving the store carrying a box of dishes.

The guard discovered the dishes had not been sold to the defendant and pursued him. The guard found the defendant empty-handed ten minutes later and questioned him about the dishes. He denied he had stolen anything and said he had carried trash out of the store. The police were called and the defendant was arrested.

The defendant argues that the trial judge erred in failing to suppress the defendant's prior felony convictions. Prior to trial, defense counsel moved to suppress defendant's prior criminal record. The court granted the motion in part by ruling that only defendant's felony convictions would be admissible. It is the defendant's position that felony convictions for larceny from a building, robbery unarmed, carrying a concealed weapon and possession of methadone shed no light on the defendant's credibility and are improper impeachment evidence.

A defendant in a criminal case may be impeached by prior felony convictions. People v. Renno, 392 Mich. 45, 219 N.W.2d 422 (1974). It is within the discretionary authority of the trial judge to permit a defendant who has elected to testify to be cross-examined as to his prior felony conviction record. People v. Jackson, 391 Mich. 323, 335, 217 N.W.2d 22 (1974); People v. Cummins, 47 Mich. 334, 336, 11 N.W. 184 (1882). The trial judge must positively indicate and identify its exercise of discretion. People v. Cherry, 393 Mich. 261, 224 N.W.2d 286 (1974). The record clearly indicates that the trial court did so indicate when defense counsel pointed out that People v. Jackson, supra, required that the trial judge not act arbitrarily, but must consider the prior convictions as they relate to the pending charge. The court questioned the defendant further and then ruled to deny the motion to suppress the felony convictions.

Defendant further contends that the trial judge failed to consider certain factors suggested in People v. Jackson, supra, 391 Mich. at 333, 217 N.W.2d 22, as guidelines for the trial judge in exercising his discretion. The criteria suggested in Jackson were taken from Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967), and included the related nature of the prior convictions and the effect on the accused's decisional process not to testify for fear of impeachment by prior convictions.

A consideration not discussed in People v. Jackson, supra, but central to Gordon v. United States, supra, was the fact that there was a direct conflict between the testimony of the complainant and the defendant. The verdict in Gordon necessarily turned on how the jury resolved the credibility contest between the complainant and the defendant. The Court stated:

'(W)e note that the admission of Appellant's criminal record here, along with the criminal record of the complaining witness, was not in a vindictive or 'eye for an eye' sense, as Appellant argues. Rather it was received because the case had narrowed to the credibility of two persons--the accused and his accuser--and in those circumstances there was greater, not less, compelling reason for exploring all avenues which would shed light on which of the two witnesses was to be believed.' (Emphasis supplied.) Gordon v. United States, supra, 383 F.2d 941.

This is precisely the situation in the instant case. There was a direct conflict in the testimony between the security guard who testified that he saw the defendant leave with a box of dishes and the defendant who testified that he carried trash out of the store. This conflict in testimony was as compelling as in Gordon for exploring all avenues which would shed...