People v. Vincent

• Decision Date: 03 January 1980
• Docket Number: Docket No. 43718
• Citation: 94 Mich.App. 626,288 N.W.2d 670
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Peter VINCENT, Defendant-Appellant. 94 Mich.App. 626, 288 N.W.2d 670
• Court: Court of Appeal of Michigan — District of US

Page 670

288 N.W.2d 670

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Peter VINCENT, Defendant-Appellant.

Docket No. 43718.

94 Mich.App. 626, 288 N.W.2d 670

Court of Appeals of Michigan.

Jan. 3, 1980.

Rehearing Denied Feb. 11, 1980.

Released for Publication Feb. 28, 1980.

[94 MICHAPP 629] Anthony C. Penta, Jr., Detroit, for defendant-appellant.

[94 MICHAPP 628] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, III, App. Chief, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and KAUFMAN and RILEY, JJ.

DANHOF, Chief Judge.

Carl Lee LaDosz, Anthony Mazzio and the defendant were charged with armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and possession of a firearm in the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). In a joint jury trial, all the defendants were convicted of both offenses. The defendant brings this appeal as of right.

The evidence shows that at approximately 9:30 a. m. on January 17, 1978, a silver van entered the parking lot at Hudson's Bait Shop in Wayne. Codefendant LaDosz entered the shop, carrying a bucket in which he wanted the store clerk to place some minnows. Almost immediately, a man in a blue mask appeared, holding a pistol to the clerk's face. The clerk observed a third man outside the store, wearing a mask he could not describe. He was certain that the defendant was not one of the men in the store. The clerk was tied with tape and, after some scuffling about and shouting between the intruders, the men left. The clerk immediately freed himself and called the police.

Officers of several police agencies gave chase to a silver van almost immediately after hearing the radio report of the robbery; the first officer to take up the pursuit contacted the van approximately eight miles from the bait shop. After a high speed chase the van crashed to a stop and codefendants Mazzio and LaDosz fled. Defendant Vincent was held at bay inside the van. The van was found to contain two masks, a pistol and numerous guns and other items taken from the bait shop. The shortest time between the beginning of the robbery[94 MICHAPP 630] and the crash of the van supported by the evidence is 15 minutes.

Well before the prosecution rested its case, the trial judge disposed of motions concerning the admissibility of evidence of the defendants' prior convictions in the event they elected to testify. Defendant Vincent had recently completed a prison term imposed upon a conviction of the Federal offense of misprision of felony. ¹ After some rather casual argument by prosecution and defense, the trial court ruled that the fact and date of the defendant's felony conviction could be shown but that the nature of that felony could be disclosed only upon the initiative of the defense. ²

[94 MICHAPP 631] Of the attacks the defendant brings against this ruling, we need address only one. The defendant points out that in this state there is no crime known as misprision of a felony, see People v. Lefkovitz, 294 Mich. 263, 293 N.W. 642 (1940), and argues that his conviction of this Federal crime should not have been held admissible to impeach his testimony.

Impeachment of a witness by evidence of his past criminal convictions is controlled by MRE 609. ³ The rule does not distinguish between foreign [94 MICHAPP 632] and domestic crimes. However, the rationale underlying this method of impeachment raises a difficult question when evidence of convictions for acts that are not criminal in Michigan are offered as evidence of crimes to impeach a defendant in a Michigan court.

Impeachment of the testimony of a criminal defendant by proof of other convictions necessarily involves a rather fine compromise between the need to thoroughly evaluate his testimony and the much-cherished belief that a defendant should be punished for only the crimes for which he is prosecuted. When evidence of a defendant's unrelated criminal activity is brought into a trial, the latter principle is severely tested, for there is always a danger that the trier will follow the forbidden reasoning that a "criminal" of the defendant's "kind" is highly likely to have broken the law once again.

This means of impeachment can only have been sustained against its many critics because of the belief that, despite the acknowledged risks, many acts that are criminal also reflect so strongly on a defendant's credibility as to justify the danger to the defendant and to the integrity of our notions of justice. See generally, People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974). The focus of this type of impeachment is conduct, rather than mere criminality. We believe that it would be anomalous indeed to strike this tightwire balance between competing values when the actions involved are not considered criminal in the court in which the compromise is attempted. We hold that unless the conduct that makes out the foreign offense can also meet the minimal elements of a Michigan crime admissible under MRE 609, the foreign conviction[94 MICHAPP 633] may not be proved to impeach a defendant in a Michigan court. ⁴

The acts that bring criminal liability under 18 U.S.C. § 4 would not constitute a felony in the courts of this state. ⁵ Therefore, the ruling of the trial judge was in error.

We also note that the trial court ruled that the defendant's Federal conviction could be presented by the prosecution only as an unspecified "felony". Recently, this Court has examined this practice and found that by failing to disclose the nature of the felony, such a ruling effectively strips the evidence of the only probative effect that justifies its admission. See People v. Jones, 92 Mich.App. 100, 284 N.W.2d 501 (1979), and People v. Garth, 93 Mich.App. 308, 287 N.W.2d 216 (1979). In Jones, supra, the Court wrote:

"(P)resentation of evidence of an unspecified 'felony' conviction for purposes of impeaching the defendant's [94 MICHAPP 634] credibility says nothing of the conduct that is asserted to bear negatively on the defendant's reliability as a witness while presenting a very substantial possibility of jury speculation and consequent prejudicial impact upon the rights of the accused. The very difficult questions presented by the use of evidence of prior convictions for impeachment must be decided rather than compromised; as this case indicates, a compromise may be more injurious to a defendant than an adverse decision." Jones, supra, 92 Mich.App. at 113, 284 N.W.2d at 507.

It has been suggested that, if the defendant is free to disclose the nature of the prior conviction the prosecutor has proved, the "compromise" decision is fair when evidence of the conviction is otherwise admissible. Collins, supra, V. J. Brennan, J., dissenting. However, when a trial judge denies the prosecution the power to present the nature of the prior offense to the jury, he has decided that the nature of the offense is either unduly inflammatory or misleading (as was the case in Jones, supra ) or not sufficiently relevant to the defendant's veracity (as was apparently the belief of the trial judge in the case at bar). Either circumstance dictates exclusion of the evidence altogether, rather than stripping it of its probative value and inviting the jury to speculate on what the defendant "felon" has done in the past. Further, the fact that a trial court's admission of evidence of the whole conviction, including its nature, might not constitute reversible error is not sufficient justification for the compromise decision. Such reasoning, viewed in light of the "abuse of discretion" standard by which such decisions are reviewed, would effectively insulate the injury done by the evidence of a past unspecified "felony" from appellate repair.

When a defendant testifies and is improperly impeached, it is possible but difficult to assess the [94 MICHAPP 635] damage done to the fairness of the trial. It has been held that "overwhelming" evidence of guilt can render improper impeachment harmless. People v. Makidon, 84 Mich.App. 287, 269 N.W.2d 568 (1978). In this case the evidence against the defendant is sufficient to support the conviction but cannot be termed "overwhelming". The defendant took the position that he was not the third man at the bait store or that, if he was, he was not a willing participant in the robbery. Such a theory could draw significant support from the defendant's testimony. Because the defendant did not take the stand, it is of course impossible to determine the value of the testimony he might have given. It is not clear that his decision to remain silent was a tactical move unaffected by fear of improper impeachment. See People v. Denny, 86 Mich.App. 40, 272 N.W.2d 332 (1978).

The defendant shall have the opportunity to testify at a new trial without reference to his Federal conviction.

Reversed and remanded.

KAUFMAN, Judge (dissenting).

I agree with the majority in their conclusion that the trial court erred in admitting, for impeachment purposes, evidence of defendant's foreign conviction of an offense not cognizable as a crime in the state of Michigan. It should be emphasized that not only is misprision of a felony not a crime in Michigan but that Michigan has gone a step further and abolished aider and abettor status for accessories after the fact. See People v. Lucas, 402 Mich. 302, 262 N.W.2d 662 (1978).

I also agree with the reasoning of the majority that the trial court abused its discretion in allowing[94 MICHAPP 636] the prosecution to present evidence of defendant's foreign conviction as an unspecified "felony". When a prior conviction is allowed to be admitted in this manner, its prejudicial effect outweighs its probative value. Instead of being given matter reflective of defendant's credibility or lack thereof, the jury is left to speculate upon the severity of defendant's prior conviction.

However, I disagree with the majority's...