People v. Whigham

• Decision Date: 21 November 1980
• Docket Number: Docket No. 49465
• Citation: 300 N.W.2d 753,102 Mich.App. 96
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Reginald WHIGHAM, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 753

300 N.W.2d 753

102 Mich.App. 96

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Reginald WHIGHAM, Defendant-Appellant.

Docket No. 49465.

Court of Appeals of Michigan.

Nov. 21, 1980.

Released for Publication Jan. 29, 1981.

Charles T. Burke, Livonia, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan Pros. Atty., E. Reilly Wilson, Appellate Chief, Asst. Pros. Atty., A. George Best, II, Asst. Pros. Atty., for plaintiff-appellee.

Before BASHARA, P. J., and KAUFMAN and MAHER, JJ.

PER CURIAM.

On November 23, 1979, defendant was convicted of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, assault with intent to rob being armed, M.C.L. § 750.89; M.S.A. § 28.284, and violation of the felony-firearm statute, M.C.L. § 750.227b; M.S.A. § 28.424(2) by a Detroit Recorder's Court jury. Defendant was sentenced to serve 20-60 years on the count of armed robbery, 20-60 years on the count of assault with intent to rob being armed, and the mandatory two years on the felony-firearm count. Defendant appeals as of right, pursuant to GCR 806.1.

Of the two issues raised by defendant on appeal, we deem only one meritorious. Defendant contends that the trial judge abused his discretion in determining that the probative value of evidence of defendant's two prior convictions for assault with intent to commit armed robbery outweighed its prejudicial effect where, as here, the offenses were identical to a charge in the instant case.

Before the beginning of trial, defendant moved to suppress evidence of his prior criminal record so that he could testify in his own behalf without reference being made thereto. The trial court ruled against defendant's motion to suppress, but agreed to give a limiting instruction advising the jury that defendant's prior record could only be considered for the purpose of impeaching defendant's credibility.

Defendant contends that, since his two prior convictions were identical to one of the charges in the instant case, the trial court should have granted defendant's motion to suppress. On appeal, it is defendant's assertion that the denial of this motion inhibited him from taking the stand and presenting his testimony, which would have been the only evidence in his own defense.

The decision to allow impeachment of a defendant by introduction of evidence of his prior convictions is within the discretion of the court. MRE 609. ¹ The court's discretion is, however, not unbridled, since it must determine whether the probative value of the evidence on the issue of credibility outweighs its prejudicial effect. MRE 609(a)(2). Defendant's two prior convictions were for assault with intent to commit robbery armed and are specifically covered by MRE 609(a)(1) as crimes "punishable by death or imprisonment in excess of one year," or as crimes involving "theft". Immediately before trial, defendant moved to suppress the evidence of his prior convictions, and the motion was argued on the record. The trial court concluded that the evidence should be admitted, specifically recognizing that it had discretion to do so. ² Defense counsel renewed his motion at the close of the People's proofs.

In People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974), the Supreme Court set forth the rule that was subsequently incorporated into MRE 609, that is, that the trial court must recognize that it has the discretionary power to admit or exclude a reference to a defendant's prior conviction. See People v. Bennett, 85 Mich.App. 68, 270 N.W.2d 709 (1978); People v. Worden, 91 Mich.App. 666, 284 N.W.2d 159 (1979). In People v. Cherry, 393 Mich. 261, 224 N.W.2d 286 (1974), the Supreme Court held that, in order to comply with the Jackson rule, the trial court must positively indicate and identify its exercise of discretion. And very recently, our highest court reiterated and elaborated upon this same principle. In People v. West, 408 Mich. 332, 291 N.W.2d 48 (1980), the Supreme Court, in addition to using the language of Cherry, supra, indicated that the words "Motion in limine denied" do not comply with the dictates of the above cited cases. ³

Although the judge in the instant case expressly recognized his discretion and positively indicated and identified his exercise thereof, inquiry may still be made as to whether the judge's ruling was an abuse of discretion in the specific matter in issue. See Bennett, supra.

In People v. Crawford, 83 Mich.App. 35, 39, 268 N.W.2d 275 (1978), this Court enumerated the factors to be considered in determining if evidence of a defendant's prior conviction should be admitted to impeach the defendant's credibility. This Court stated:

"The factors which the judge must weigh in making his determination include: (1) the nature of the prior offense (did it involve an offense which directly bears on credibility, such as perjury?), (2) whether it is for substantially the same conduct for which the defendant is on trial (are the offenses so closely related that the danger that the jury will consider the defendant a 'bad man' or infer that because he was previously convicted he likely committed this crime, and therefore create prejudice which outweighs the probative value on the issue of credibility?) and (3) the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions (are there alternative means of presenting a defense which would not require the defendant's testimony, i. e., can his side of the story be presented, or are there alternative, less prejudicial means of impeaching the defendant?)."

In the instant case, the record reveals that the judge misapplied these factors.

As to the first factor, the nature of the offense, assault with intent to commit armed robbery, is not a crime which involves veracity (as opposed to a crime such as perjury) and should be given less weight than crimes directly involving deceit. As felonies, the crimes do involve moral turpitude and, thus, are of some probative value.

Secondly, considering whether the prior convictions are for substantially the same conduct for which the defendant is on trial, the prior crimes in question are identical to one of the three charges in the instant case. The possibility for prejudice is highest in such a situation because of the danger of the jury concluding that, since defendant committed the crime not once, but twice before, he probably did it this time. Although not barred per se, evidence of prior convictions for the same crime should be admitted with extreme caution. People v Green, 86 Mich.App. 142, 147, 272 N.W.2d 216 (1978). People v. Baldwin, 405 Mich. 550, 553, 275 N.W.2d 253 (1979), cites the case of Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967), for the proposition that similarity of the prior offenses is a factor weighing against admissibility:

" 'A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that "if he did it before he probably did so this time." As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity.' "

Correct application of the second factor of Crawford should have led to the suppression of at least one, and possibly both, of defendant's prior convictions. The obvious potential for prejudice could not be outweighed by the probative value achieved by their admittance.

The third factor in Crawford, the effect on the decisional process, weighs heavily in favor of suppressing defendant's prior record. It was allegedly because of the denial of his motion in limine that defendant elected not to take the stand and presented no other witnesses on his behalf.

Thus, when the factors of Crawford are weighed together, the balance mandated suppression of the evidence in question, and the trial court erred in not so doing. As this Court recently stated in People v. Moseley, 94 Mich.App. 461, 464, 290 N.W.2d 39 (1979):

"we have no doubt that it was error to allow the prosecution to present evidence as to the two prior convictions for essentially the same conduct for which defendant was on trial. Other, less prejudicial, alternatives existed, such as: showing only one conviction, or showing only that defendant had previous felony convictions...