People v. Parcha

• Decision Date: 30 December 1997
• Docket Number: Docket No. 193181
• Citation: 227 Mich.App. 236,575 N.W.2d 316
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Edward PARCHA, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 316

575 N.W.2d 316

227 Mich.App. 236

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Edward PARCHA, Defendant-Appellant.

Docket No. 193181.

Court of Appeals of Michigan.

Submitted June 10, 1997, at Detroit.

Decided Dec. 30, 1997, at 9:05 a.m.

Released for Publication March 26, 1998.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Mark W. Bernardi, Assistant Prosecuting Attorney, for People.

Anthony R. Smereka, Detroit, for defendant on appeal.

Before MARKMAN, P.J., and HOLBROOK and O'CONNELL, JJ.

O'CONNELL, Judge.

Defendant was convicted by jury of assault with intent to do great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). The convictions arose out of defendant's nonfatal shooting of his roommate. At trial, the prosecution's theory was that the shooting was intentional, while the defense theory was that the shooting was accidental. Defendant was sentenced to a mandatory two-year term for the felony-firearm conviction and to a five- to ten-year term for the assault conviction. He now appeals as of right. We affirm.

Defendant's first argument on appeal is that the prosecution presented insufficient evidence to support his assault conviction. We disagree. In determining whether sufficient evidence has been presented, this Court views the evidence in a light most favorable to the prosecution and determines whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 366, 285 N.W.2d 284 (1979). Assault with intent to commit great bodily harm less than murder requires proof of (1) an attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an intent to do great bodily harm less than murder. People v. Harrington, 194 Mich.App. 424, 428, 487 N.W.2d 479 (1992). Assault with intent to commit great bodily harm is a specific intent crime. People v. Mack, 112 Mich.App. 605, 611, 317 N.W.2d 190 (1981).

Viewing the evidence in a light most favorable to the prosecution, we believe that a rational trier of fact could have found that the prosecution proved the essential elements of the crime beyond a reasonable doubt. Defendant attempted to do corporal harm to his roommate when he shot at him twice, at close range, with a fully loaded nine-millimeter pistol. The first shot hit the victim in the back in an area close to his spine. The second shot barely missed the victim's head. An intent to harm the victim can be inferred from defendant's conduct. Id.

Defendant next contends that the trial court erred in qualifying Officer Paul Hartzell as an expert in firearms identification and examination. We review the trial court's decision for an abuse of discretion, People v. Peebles, 216 Mich.App. 661, 667, 550 N.W.2d 589 (1996), and disagree. The admissibility of expert testimony is governed by a three-part test: (1) the expert must be qualified, (2) the evidence must serve to give the trier of fact a better understanding of the evidence or assist the trier of fact in determining a fact in issue, and (3) the evidence must be from a recognized discipline. Peebles, supra at 667-668, 550 N.W.2d 589 (citing People v. Williams [After Remand], 198 Mich.App. 537, 542, 499 N.W.2d 404 [1993] ); MRE 702.

In the present case, Officer Hartzell testified that he had been trained in test-firing and drop-testing nine-millimeter handguns, and that he had test-fired this type of weapon approximately forty to fifty times and drop-tested this type of weapon three or four times. At the time of the trial, Hartzell had completed forty to forty-eight hours of firearms training, test-fired approximately 150 to 200 weapons (three to five guns a day for approximately three months), examined two to three thousand weapons, and performed numerous examinations on a comparison microscope. On the basis of this evidence, we conclude that the trial court did not abuse its discretion in finding that Hartzell possessed sufficient knowledge, training, and experience in drop-testing and test-firing of nine-millimeter weapons to qualify him as an expert in this area.

Defendant next argues that the trial court abused its discretion in admitting evidence of defendant's two prior misdemeanor theft convictions at trial. Immediately before defendant was to take the stand, defendant's attorney moved in limine to preclude impeachment of his client with evidence of two misdemeanor theft convictions: a September 1989 second-degree retail fraud conviction for which defendant received a thirty-day jail sentence and a May 1990 larceny conviction for which he received a ninety-day sentence. Defense counsel argued that evidence of the convictions was inadmissible because the convictions were not punishable by more than one year imprisonment and because the prejudicial effect outweighed the probative value of the evidence. The trial court ruled that evidence of the convictions was admissible under MRE 609(a)(1) because the offenses of larceny and retail fraud contain elements of "dishonesty or false statement" and because this was a "one-on-one" credibility contest. While we conclude that the trial court erred in admitting evidence of the prior larceny conviction, if not the retail fraud conviction, we find that any error was harmless.

MRE 609 provides, in pertinent part:

(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall not be admitted unless the evidence has been elicited from the witness or established by public record during cross examination, and

(1) the crime contained an element of dishonesty or false statement, or

(2) the crime contained an element of theft, and

(A) the crime was punishable by imprisonment in excess of one year or death under the law under which the witness was convicted, and

(B) the court determines that the evidence has significant probative value on the issue of credibility and, if the witness is the defendant in a criminal trial, the court further determines that the probative value of the evidence outweighs its prejudicial effect.

As interpreted, Rule 609 requires that the prior conviction first be examined to determine whether the conviction contained an element of dishonesty or false statement. People v. Allen, 429 Mich. 558, 605, 420 N.W.2d 499 (1988). If so, the evidence is automatically admissible. Id. at 593-594, 420 N.W.2d 499. If not, the court must determine whether the conviction contained an element of theft. Id. at 605, 420 N.W.2d 499. If so, the court must then examine the conviction to see if the crime was punishable by more than one year in prison, and, if the witness is a criminal defendant, whether the probative value of the evidence outweighs its prejudicial effect. Id. at 605-606, 420 N.W.2d 499.

The view has been expressed that all crimes involving theft necessarily involve dishonesty. For example, Judge--later Justice--Burger, in Gordon v. United States, 127 U.S. App. D.C. 343, 347, 383 F.2d 936 (1967) (emphasis supplied), stated that "[i]n common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man's honesty and integrity." Under this approach, which is not without its intuitive appeal, ¹ evidence of a conviction of a theft offense would automatically be admissible for impeachment purposes pursuant to MRE 609(a)(1). Indeed, before our Supreme Court's decision in People v. Allen, supra, which amended MRE 609 to its present form, theft offenses were considered in the same breath as crimes involving "dishonesty or false statement" for impeachment purposes. See former MRE 609(a)(1). Thus, lay persons and even the trial court may be forgiven if they were under the impression that thievery is dishonest; it is dishonesty by conduct or deed, but not by word. In this respect, we note that defendant's brief on appeal admits that his convictions "do contain elements of dishonesty." ² As it turns out, however, thievery is not "dishonesty" within the meaning of MRE 609(a)(1).

In Allen, supra at 595-596, 420 N.W.2d 499, our Supreme Court explicitly distanced itself from the reasoning expressed by Justice Burger. Though recognizing that "theft offenses have traditionally been viewed as strongly probative of veracity," id. at 595, 420 N.W.2d 499, the Allen Court concluded that theft offenses, as a rule, are not so reflective of one's truthfulness as to warrant automatic admission into evidence of evidence of a prior conviction of such an offense. In contrast, the Court reasoned that crimes having elements of dishonesty or false statement were sufficiently probative of one's veracity to justify admission into evidence of evidence of a prior conviction of one of those crimes. Such crimes, in the nature of crimen falsi, could be identified by the fact that they did not merely imply dishonesty on the part of the perpetrator, but incorporated a dishonest act, such as active deceit or falsification, as an element of the offense itself. Being convicted of such an offense did not imply dishonesty, but reflected it.

Thus, the Allen decision drew a distinction between theft offenses and offenses involving dishonesty or false statement, a distinction maintained in the current version of MRE 609. By delineating two discrete approaches to determining whether evidence of a prior conviction is admissible into evidence--one for crimes containing an element of dishonesty or false statement, one for crimes containing an element of theft--the Court emphasized that theft offenses do not necessarily contain an element of dishonesty or false statement. To...