People v. Steele, Docket No. 52259

• Citation: 321 N.W.2d 804,115 Mich.App. 758
• Decision Date: 21 July 1982
• Docket Number: Docket No. 52259
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kent Hughes STEELE, Defendant-Appellant. 115 Mich.App. 758, 321 N.W.2d 804
• Court: Court of Appeal of Michigan (US)

Page 804

321 N.W.2d 804

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kent Hughes STEELE, Defendant-Appellant.

Docket No. 52259.

115 Mich.App. 758, 321 N.W.2d 804

Court of Appeals of Michigan.

Submitted June 11, 1981.

Decided May 4, 1982.

Released for Publication July 21, 1982.

[115 MICHAPP 760] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., Appeals, and Carolyn Schmidt, Asst. Pros. Atty., for the People.

Craig A. Daly, Detroit (Gary Granader, Detroit, of counsel), for defendant-appellant.

Before RILEY, P. J., and CYNAR and GAGE ^*, JJ.

GAGE, Judge.

Defendant was charged with entering without breaking with the intent to commit [115 MICHAPP 761] a larceny. M.C.L. Sec. 750.111; M.S.A. Sec. 28.306. Following a trial by jury defendant was convicted as charged and sentenced to a prison term of 30 to 60 months. He appeals as of right raising two issue for review. We affirm.

Defendant first contends that the trial court erred in partially denying his motion to suppress evidence of four prior convictions. The court suppressed evidence on a 1979 conviction for attempted entry without breaking, but denied the motion with regard to a 1977 conviction for larceny under $100, a 1978 conviction for larceny in a building and a 1978 conviction for attempting to unlawfully drive away an automobile. Defendant did not testify.

The decision to allow impeachment of a defendant by evidence of prior convictions is left to the trial court's discretion. People v. Jackson, 391 Mich. 323, 336, 217 N.W.2d 22 (1974); People v. Whigham, 102 Mich.App. 96, 98, 300 N.W.2d 753 (1980). The court is required to recognize that it has the discretion, to identify its exercise of that discretion and to determine whether the prejudicial effect of admitting the evidence outweighs its probative value on the issue of credibility. MRE 609, Jackson, supra ; People v. Cherry, 393 Mich. 261, 224 N.W.2d 286 (1974); People v. Hughes, 411 Mich. 517, 521, 309 N.W.2d 525 (1981). ¹

[115 MICHAPP 762] The colloquy between the court and counsel concerning defendant's motion is quoted by the dissent. It demonstrates that the court recognized that it had the discretion to suppress evidence of defendant's prior convictions and that it properly applied MRE 609. In excluding evidence of defendant's 1979 conviction for attempted entry without breaking, the court recognized the similarity of the offense as a factor weighing against admissibility and determined that its prejudicial effect would outweigh its probative value on the issue of credibility. Conversely, the court determined that the probative value of defendant's theft-related convictions outweighed their prejudicial effect. Crimes involving theft are specifically recognized as ones which may be used for impeachment. MRE 609(a)(1). If a defendant testifies in his own defense, he, like any other witness, places his reputation for truth and veracity in issue. People v. Huff, 101 Mich.App. 232, 241, 300 N.W.2d 525 (1980). The jury should not be misled regarding the true facts pertaining to defendant's reputation for truth and veracity. The court admitted evidence of only those convictions which were not substantially similar to the crime for which defendant was on trial and which are recognized as bearing on dishonesty. Huff, supra, 246, 300 N.W.2d 525. It did not abuse its discretion in partially denying defendant's motion.

Defendant also contends that the trial court erred in placing the burden on him to justify excluding evidence of the convictions rather than on the prosecutor to justify its admission. In a well-reasoned opinion by Judge Beasley, this Court recently stated:

[115 MICHAPP 763] "Regarding the Michigan cases, we note People v. Jones, [92 Mich.App. 100, 284 N.W.2d 501 (1979) ] rested on the two cases of Luck v. United States, [121 U.S.App.D.C. 151, 348 F.2d 763 (1965) ] and Gordon v. United States, [127 U.S.App.D.C. 343, 346, 383 F.2d 936, 939 (1967) ], both decided in intermediate Federal appellate courts. In Gordon, the court said:

" 'Luck also contemplated that it was for the defendant to present to the trial court sufficient reasons for withholding past convictions from the jury in the face of a statute which makes such convictions admissible. * * * The underlying assumption was that prior convictions would ordinarily be admissible unless this burden is met. "The trial court is not required to allow impeachment by prior conviction every time a defendant takes the stand in his own defense." ' (Footnote omitted.)

"The Gordon opinion went on to say that to bar the use of previous convictions as impeachment the court must find that the prejudice far outweighs the probative relevance to credibility. The court then further said:

" 'The burden of persuasion in this regard is on the accused ; * * *.' (Emphasis added.)

"We would also note that the leading Michigan case of People v. Jackson, supra, cites and places heavy reliance upon the cited Federal cases of Gordon and Luck, supra. Under these circumstances, we believe that People v. McCartney, [60 Mich.App. 620, 231 N.W.2d 472 (1975) ]; People v. Killebrew, [61 Mich.App. 129, 232 N.W.2d 329 (1975) ] and People v. Jones, supra, are in error in holding that the burden of proof is on the prosecution to establish that the probative value outweighs the possible prejudicial effect. We suggest that the rule is to the contrary, as indicated from the above quotations from Gordon." Huff, supra, 250-251, 300 N.W.2d 525. ²

[115 MICHAPP 764] Such rationale follows from the basic rule of evidence that all relevant evidence is admissible unless otherwise shown. MRE 402. Thus, even assuming that the court placed the burden of persuasion on defendant, such an imposition was not improper. ³

The dissent would reverse defendant's conviction solely upon its belief that the prosecutor had the burden of justifying the admission of evidence of the prior convictions without reaching the ultimate determination of whether the court abused its discretion in allowing its admission. Although Luck and Gordon were recently criticized in United States v. Smith, 179 U.S.App.D.C. 162, 551 F.2d 348 (1976), the court in that case did not base its decision solely, or even in large part, upon its finding that the burden of persuasion was on the prosecutor.

The Smith Court first noted that the trial judge erred in failing to determine whether the probative value of evidence of the convictions, on the issue of credibility, outweighed its prejudicial effect. Indeed, the sole purpose for the Court's remand was for the trial judge to make such a determination. Smith, 179 U.S.App.D.C. at 171, 551 F.2d at 357. The Court then determined that the judge's error in failing to make such a determination could not, under the circumstances of the case, be deemed harmless. The defendant expressed a desire to testify on his own behalf. His attorney informed the trial judge that he wished [115 MICHAPP 765] to deny any connection with the crime charged. In light of these statements by both the defendant and his attorney, the Smith Court concluded that the defendant was dissuaded from testifying primarily by the trial judge's refusal to exclude evidence of his prior conviction. Smith, 179 U.S.App.D.C. at 179, 551 F.2d at 365. The Court then concluded that the prosecutor's case was not so strong that it could be said the defendant's testimony could not have had some effect on the jury's determination. Smith, 179 U.S.App.D.C. at 179-180, 551 F.2d at 365-366. The error, therefore, was not harmless. The Smith decision cannot be relied upon for the proposition that reversal is required solely because the prosecutor failed to offer any argument in support of the admission of evidence of the convictions.

The trial court's function is to determine whether the prejudicial effect of admitting the evidence outweighs its probative value on the issue of credibility. Hughes, supra. The court did not abuse its discretion in denying defendant's motion with regard to the three theft-related offenses.

Defendant's second allegation of error concerns the court's instructions to the jury. Defendant contends that the court misrepresented the theory of the defense and shifted the burden of proof to defendant. Defendant failed to object to the instructions, precluding appellate review in the absence of manifest injustice. People v. Anglin, 111 Mich.App. 268, 285, 314 N.W.2d 581 (1981). Upon a review of the instructions in their entirety, we find no manifest injustice. The court properly instructed the jury that the prosecutor had the burden of proof. The court adequately represented defendant's theory of the case.

I would affirm.

[115 MICHAPP 766] CYNAR, Judge (concurring).

I agree with the result reached by Judge Gage and I concur with her reasoning except for her suggestion that the burden of justifying the exclusion of defendant's prior convictions may properly rest on the defendant. I believe that the plain language of MRE 609(a)(2) places the burden on the prosecution. That rule provides that the court must determine that the probative value of evidence of the conviction outweighs its prejudicial effect. Rule 609(a), when read in its entirety, requires that such a determination be made as a prerequisite to admission. I interpret the rule to place the burden of persuasion on the prosecution.

Regardless of whether the defendant or the prosecution advanced explanations or arguments, the factors to be considered by the trial court in making its determination weigh in favor of admission, and therefore the prosecution's burden of persuasion has been met.

RILEY, Presiding Judge (dissenting).

Defendant was convicted by a jury of entering without breaking with intent to commit larceny, M.C.L. Sec. 750.111; M.S.A. Sec. 28.306, and sentenced to a prison term of 30 to 60 months. He appeals his...