People v. Worden

• Decision Date: 20 August 1979
• Docket Number: Docket No. 77-99
• Citation: 91 Mich.App. 666,284 N.W.2d 159
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George L. WORDEN, Defendant-Appellant. 91 Mich.App. 666, 284 N.W.2d 159
• Court: Court of Appeal of Michigan — District of US

Page 159

284 N.W.2d 159

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George L. WORDEN, Defendant-Appellant.

Docket No. 77-99.

91 Mich.App. 666, 284 N.W.2d 159

Court of Appeals of Michigan.

Aug. 20, 1979.

Released for Publication Oct. 10, 1979.

[91 MICHAPP 669] James R. Neuhard, State App. Defender by Demnick J. Sorise, Asst. State App. Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James Norlander, Pros. Atty., by Ronald A. LeBeuf, Asst. Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, Jr., P. J., and R. B. BURNS and KELLY, JJ.

D. E. HOLBROOK, Jr., Presiding Judge.

Defendant was charged with forgery, a violation of M.C.L. § 750.248; M.S.A. § 28.445. In September, 1976, defendant was convicted by a jury of the charged offense and sentenced to 81/2 to 14 years in prison. He appeals as of right, raising five issues.

I

Defendant's criminal history indicates that he has been convicted on six prior occasions. He was convicted of breaking and entering in 1954 ¹; issuing an insufficient funds check in 1958 ²; uttering and publishing in October, 1958 ³; issuing a no-account[91 MICHAPP 670] check in May, 1966 ⁴; attempted uttering and publishing in January 1968 ⁵; and attempted uttering and publishing in May, 1972. Prior to the opening statements, defense counsel made a motion to prohibit the prosecution's utilization of defendant's prior convictions for impeachment purposes should defendant take the stand. This motion was discussed in chambers and the trial court determined that while the breaking and entering conviction could not be used, the remainder would be admitted. ⁶ Defendant chose not to [91 MICHAPP 671] testify at his trial. He now argues that the trial judge abused his discretion by deciding to admit evidence of his convictions for impeachment purposes, and that this abuse of discretion infringed upon his rights to testify and to present an affirmative defense.

"The Court: All right, lets take up the first matter. We have discussed it in chambers. I've indicated to the prosecutor that certain B & E convictions should not be referred to. They are old to begin with, and I would agree that as to them, there is little if any probative value. I have indicated to the prosecutor that those offenses relating directly to checks, either uttering and publishing or forgery or attempted uttering and publishing or the issuance of bad checks can be referred to but on the basis that he will have the right to ask the defendant 'have you been arrested and convicted' of whatever the offense is and the number of times. It seems to me clearly that in the forgery case, prior convictions of a related nature go directly to the credibility of the witness if he testifies that he, for example, did not forge this or which I assume would be his defense. And the jury will be instructed of course, that of the limited purpose for which such convictions may be referred to.

At the time of the trial in 1976, the admission into evidence of references to a defendant's prior convictions for impeachment purposes was controlled by M.C.L. § 600.2158; M.S.A. § 27A.2158 ⁷ and M.C.L. § 600.2159; M.S.A. § 27A.2159. ⁸ These statutes were interpreted by Judge (now Justice) Levin in People v. Farrar, 36 Mich.App. 294, 193 N.W.2d 363 (1971), as being permissive in their application, thus allowing a trial court, in the exercise of its discretion, to refuse to allow reference to a defendant's prior conviction record. This analysis was adopted by the Michigan Supreme Court in People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974), in an opinion written by Justice Levin and concurred in by Chief Justice T. M. Kavanagh and Justices [91 MICHAPP 672] T. Kavanagh, Swainson and Williams. Writing for the Court, Justice Levin stated:

"We are persuaded that a trial judge may in the exercise of discretion exclude reference to a prior conviction record, and that it is error to fail to recognize that he has such discretion and, therefore, to fail or to refuse to exercise it." People v. Jackson, supra, at 336, 217 N.W.2d at 26.

The Court's decision in Jackson was an explicit recognition of the principle that a defendant may be impeached by the use of his prior convictions in instances where the court determines that their probative value outweighs their prejudicial effect. ⁹ See People v. Hendrick, 398 Mich. 410, 247 N.W.2d 840 (1976); ¹⁰ People v. Moore, 391 Mich. 426, 216 [91 MICHAPP 673] N.W.2d 770 (1974). ¹¹ This general principle was modified slightly in People v. Renno, 392 Mich. 45, 219 N.W.2d 422 (1974), when the Court prohibited the use of municipal ordinance and misdemeanor convictions when introduced by the prosecution solely for impeachment purposes.

The Michigan Supreme Court adopted the Michigan Rules of Evidence on January 5, 1978. ¹² MRE 609 concerns impeachment by evidence of conviction of crime and retains the Jackson rule and part of Renno. ¹³ MRE 609(a) states:

"(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if

"(1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted or the crime involved theft, dishonesty or false statement, regardless of the punishment, and

"(2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial affect." 402 Mich. ciii-civ.

This rule on its face requires that if the defendant's prior conviction falls within the category [91 MICHAPP 674] stated in (1) of above, and the court determines that the probative value outweighs its prejudicial effect, then the evidence shall be admitted. We interpret the adoption of MRE 609 to be a reaffirmation by the Supreme Court of its prior position concerning the general admissibility of evidence of convictions for impeachment purposes. While MRE 609 was not in effect at the time of defendant's trial, its requirements essentially reflect Michigan case law prior to its adoption, ¹⁴ and we will refer to it when applicable.

When reviewing the decision of the trial court to permit impeachment of a defendant by evidence of his prior convictions, this Court must apply a two-prong test. We must examine the record to ascertain whether the trial court recognized that it had the discretionary power to deny utilization of the prior convictions for impeachment purposes; and if so, determine whether there was an abuse of this discretion when evidence of a defendant's prior convictions was permitted to be introduced into evidence for impeachment purposes.

The first prong of this test was established in People v. Cherry, 393 Mich. 261, 224 N.W.2d 286 (1974), when the Court stated that:

"In order to comply with Jackson the trial court must positively indicate and identify its exercise of discretion." Cherry, supra, at 261, 224 N.W.2d at 287.

Cherry is complied with when it is apparent from the record that the trial court was aware that it had the discretion to disallow the evidence of the prior conviction, and that its decision was based upon an exercise of this discretion. People v. Castillo, 82 Mich.App. 476, 482, 266 N.W.2d 460 (1978); [91 MICHAPP 675] People v. Pleasant, 69 Mich.App. 322, 328, 244 N.W.2d 464 (1976), Lv. den. 399 Mich. 831 (1977); People v. Burse, 62 Mich.App. 204, 212, 233 N.W.2d 232 (1975). In the instant case, though much of the discussion took place in chambers, the court's ruling on defendant's motion was placed on the record, thus avoiding the error found in People v. Williams, 84 Mich.App. 226, 269 N.W.2d 535 (1978). ¹⁵ In its ruling, the trial court agreed to exclude evidence of one conviction and permitted the use of the others only with certain limitations. The recognition by a trial court that the use of some evidence is to be permitted while the use of other evidence is to be denied is the essence of discretion, People v. Stephens, 58 Mich.App. 701, 706, 228 N.W.2d 527 (1975). The trial court clearly recognized that it had the discretion to permit or deny the use of defendant's prior convictions for impeachment purposes and has exercised this discretion on the record. We are satisfied that the trial court complied with the procedural requirements of Jackson and Cherry.

The decision concerning the admission of evidence of a conviction for the purpose of impeachment is addressed to the trial court's discretion. Its decision may only be reversed upon a finding that the discretion granted to it was abused. People v. Merritt, 396 Mich. 67, 80, 238 N.W.2d 31 (1976). The term "abuse of discretion" was defined in Spalding v. Spalding, 355 Mich. 382, 384-385, 94 N.W.2d 810, 811-812 (1959), as:

"Where, as here, the exercise of discretion turns upon [91 MICHAPP 676] a factual determination made by the trier of the facts, an abuse of discretion involves far more than a difference in judicial opinion between the trial and appellate courts. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an 'abuse' in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias."

The discretion granted the trial court in this instance concerns the weighing of the probative value of evidence of a defendant's prior conviction against the prejudicial effect introduction of such evidence will have. The exercise of this discretion envisions a decision by the trial court based upon its evaluation of the given fact situation, rather than the application of any rigid legal...