People v. McCartney

• Decision Date: 25 April 1975
• Docket Number: Docket No. 19680,No. 3,3
• Citation: 60 Mich.App. 620,231 N.W.2d 472
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Vincent McCARTNEY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 472

231 N.W.2d 472

60 Mich.App. 620

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Vincent McCARTNEY, Defendant-Appellant.

Docket No. 19680.

Court of Appeals of Michigan, Division No. 3.

April 25, 1975.

Released for Publication July 24, 1975.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., David L. Smith, Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and CAVANAGH and WALSH, JJ.

CAVANAGH, Judge.

Defendant was originally convicted of entering without breaking with intent to commit larceny, M.C.L.A. § 750.111; M.S.A. § 28.306, and larceny of property with a value in excess of $100, M.C.L.A. § 750.356; M.S.A. § 28.588. He was sentenced to concurrent sentences to two to five and three to five years in prison.

On appeal this Court reversed in People v. McCartney, 46 Mich.App. 691, 208 N.W.2d 547 (1973), because of an improper reference by a police officer to defendant's prior criminal activity. Defendant, at his second trial, was again found guilty by a jury of the same offenses and was once again sentenced to two to five and three to five years in prison, with credit for time already served.

Defendant raises seven issues on appeal which he contends justify reversal. Because of the disposition in this case, only three require discussion.

After the prosecution had rested its case, defense counsel moved that the trial court exercise its discretion and refuse to allow defendant to be impeached by his prior criminal record should he decide to testify in his own behalf. The trial court denied the motion, and defendant subsequently declined to testify.

Whether to allow impeachment by evidence of prior convictions is constitutional is a question about which there is much doubt at present and a question we need not answer in this opinion. Likewise, it is unnecessary to review in detail the weight of authority in other jurisdictions which opposes the current Michigan practice giving the trial court discretion to allow prior felony convictions. See People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974), and People v. Farrar, 36 Mich.App. 294, 193 N.W.2d 363 (1971). However, the use of municipal ordinance and misdemeanor convictions for impeachment purposes is prohibited. People v. Renno, 392 Mich. 45, 219 N.W.2d 422 (1974).

A trial judge, when requested to do so, must exercise his discretion in determining whether to exclude reference to a prior conviction record. People v. Jackson, 391 Mich. 323, 336, 217 N.W.2d 22 (1974). In Jackson the Michigan Supreme Court cited with approval the adoption by this Court in Farrar of the guidelines for the exercise of the trial court's discretion which were explained in Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967):

'Among the factors to be considered are the nature of the prior offense, whether it is for substantially the same conduct for which the accused is on trial, And the effect on the decisional process if the accused does not testify from fear of impeachment by prior convictions.' 391 Mich. 323, 333, 217 N.W.2d 22, 25 (Emphasis added.)

The people argue that since defendant did not take the stand, this question is moot. This argument ignores one of the factors utilized by this Court in People v. Farrar, supra, in issuing guidelines for trial courts when considering whether to allow impeachment by prior convictions: '* * * the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions.' 36 Mich.App. at 303, 193 N.W.2d at 367.

Further support for rejecting the prosecutor's argument can be found in the disposition ordered by the Michigan Supreme Court in Jackson, supra:

'In this case, at the conclusion of the people's proofs, Jackson's lawyer asked the judge to bar the use of his conviction record should he take the stand and testify in his own behalf. The judge responded that under the statute he had no choice but to allow the use of such evidence for impeachment purposes. The judge, thus, did not recognize that he enjoyed a discretion to exclude such evidence and, in refusing counsel's request, did not exercise his discretion to allow or disallow the use of such evidence. On remand, the Trial judge shall, upon request, in the exercise of his discretion, decide whether to exclude any reference to Jackson's prior conviction record.' 391 Mich., at 336, 217 N.W.2d at 26--27 (Emphasis added).

We conclude that where defendant's motion to preclude his impeachment by prior convictions is denied and he subsequently decides not to testify, he may nevertheless raise the issue on appeal that the trial court either failed to exercise its discretion or, in the exercise of its discretion, violated proper standards.

In denying defendant's motion, the court stated that it could not decide this discretionary matter until the defendant had taken the stand and the prosecutor had laid an adequate foundation to question the defendant concerning his prior criminal record. In effect, the trial court refused to exercise its discretion. This is contrary to our reading of Jackson and Farrar.

The trial court also apparently believed that it was the defendant's burden to demonstrate prejudice in the use of his criminal record for impeachment. This is erroneous. In People v. Osteen, 46 Mich.App. 409, 419, 208 N.W.2d 198, 203, Lv. den. 390 Mich. 760 (1973), this Court stated:

'The prosecutor has no 'right' to stand before the jury and recite defendant's conviction record. When admission is challenged he must offer reasonable grounds upon which the trial judge can justify his exercise of discretion in favor of admission.'

The defendant does not have the burden of persuading the court that his criminal record should be excluded. The prosecutor must justify admission.

Since the trial court erred in failing to exercise its discretion when, at the close of the people's proofs, defendant moved to exclude impeachment by prior criminal record and in placing the burden of proving prejudice from same upon the defendant, this case must be reversed. We will address ourselves to two additional assignments of error to resolve questions likely to arise again...