PEOPLE v HOLMES
Docket No. 60883
132 MICH APP 730
Decided March 20, 1984
Submitted June 14, 1983, at Lansing.
Miсhael W. Holmes was convicted of two counts of armed robbery, one count of felony-firearm, and one count of assault with intent to commit murder, Oakland Circuit Court, Richard D. Kuhn, J. The defendant appealed, alleging that (1) the trial court erred in failing to exclude evidence of his prior conviction for armed robbery and failing to articulate on the record the factors that it considered in making its determination, (2) the pretrial line-up was constitutionally defective, and (3) the trial judge erred in his instructions to the jury after it had deliberated one-half day without reaching a verdict and reported a deadlock. Held:
1. The trial court did not abuse its discretion by failing to suppress evidence of the defendant‘s prior conviction for armed robbery. The court weighed the appropriate factors in determining whether to admit such evidence. The trial court concluded that the probative value of the evidence outweighed any prejudicial effect.
2. The pretrial line-up was not constitutionally defective. The discrepancies in height and weight among the participants in the line-up were not unduly suggestive. The in-court identification of the defendant had an independent basis.
3. The trial judge did not err in instructing the deadlocked jury. The instruction did not substantially deviate from the ABA standard jury instruction for a deadlocked jury.
Affirmed.
REFERENCES FOR POINTS IN HEADNOTES
[1-3, 6] 29 Am Jur 2d, Evidence § 327.
[1] 30 Am Jur 2d, Evidence § 1175.
[4] 5 Am Jur 2d, Appeal and Error § 889.
29 Am Jur 2d, Evidence § 320 et seq.
[5] 5 Am Jur 2d, Appeal and Error §§ 772-775.
[7, 11] 29 Am Jur 2d, Evidence § 371.4.
[8] 29 Am Jur 2d, Evidence § 371.
[9] 21 Am Jur 2d, Criminal Law § 303.
76 Am Jur 2d, Trial §§ 1054 et seq., 1069, 1109.
[10] 5 Am Jur 2d, Appeal and Error §§ 772, 774.
OPINION OF THE COURT
1. CRIMINAL LAW - EVIDENCE - PRIOR CONVICTIONS.
A trial court has discretion in admitting evidence of a criminal defendant‘s prior convictions for impeachment purposes; that discretion requires the trial court to balance the probative value of the evidence of the prior convictions against the prejudicial effect such evidencе would have on the defendant.
2. CRIMINAL LAW - EVIDENCE - IMPEACHMENT - PRIOR CONVICTIONS.
The factors a trial court must weigh in deciding whether or not to allow impeachment of a defendant in a criminal case by evidence of prior convictions are: (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 assume 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 еffect 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?); a trial court abuses its discretion when it fails to consider these factors in deciding to allow evidence of prior convictions.
3. CRIMINAL LAW - EVIDENCE - PRIOR CONVICTIONS.
Two of the purposes for a trial judge‘s inquiry in determining whether evidence of a criminal defendant‘s prior convictions should be admitted for impeachment purposes arе (1) to put before the jury only those prior convictions indicative of the defendant‘s disposition toward truthfulness and veracity, and (2) to keep from the jury those convictions which, although
4. APPEAL - CRIMINAL LAW - EVIDENCE - PRIOR CONVICTIONS.
Review of a trial court‘s determination to admit evidence of prior convictions for impeachment purposes involves a consideration of: (1) whether the trial court recognized its discretion to decline to admit the evidence of the convictions, and (2) whether the trial court‘s decision was so palpably and grossly violative of fact and logic as to amount to an abuse of discretion.
5. APPEAL - ABUSE OF DISCRETION.
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 a 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.
6. EVIDENCE - CRIMINAL LAW - PRIOR CONVICTIONS - IMPEACHMENT.
Similarity between a prior conviction and a charged crime does not, per se, bar the use of evidence of the prior conviction for impeachment purposes.
7. CRIMINAL LAW - LINE-UPS.
Discrepancies in the height and weight of the participants in a line-up do not necessarily make the line-up constitutionally defective.
8. CRIMINAL LAW - IN-COURT IDENTIFICATION.
The factors supporting an independent basis for an in-court identification of a defendant by a witness when a pretrial identification has been rendered invalid must be totally unrelated to any pretrial confrontation.
9. CRIMINAL LAW - JURY INSTRUCTIONS - DEADLOCKED JURIES - APPEAL.
A trial court in a criminal case, where confronted with a deadlocked jury, should instruct the jury: that in order to return a verdict, each juror must agree thеreto, that jurors have a duty to consult with one another and to deliberate with a view to
10. APPEAL - ABUSE OF DISCRETION.
CONCURRENCE BY M. J. KELLY, P.J.
A reviewing court should engage in an in-depth analysis of the record on appeal when a question of a lower court‘s abuse of discretion is properly framed; the reviewing court should give full-fledged review to discretionary decisions by carefully weighing the various rights and considerations involved in each type of discretionary decision.
11. CRIMINAL LAW - LINE-UPS.
Physical differences between a suspect and other line-up participants do not in and of themselves constitute impermissible suggestiveness.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Rоbert F. Davisson, Assistant Prosecuting Attorney, for the people.
Keller & Avadenka, P.C. (by Frances R. Avadenka), for defendant.
Before: M. J. KELLY, P.J., and SHEPHERD and R. I. COOPER,* JJ.
R. I. COOPER, J. Defendant was convicted of two counts of armed robbery,
Witness Steven Arthur Hammerstrom testified that he and his date, Teresa Zeitz, stopped at a gas station shortly after midnight on Thanksgiving night, November 28, 1980, after leaving a local bar where he had three or four beers. After entering the gas station‘s rest room, he heard someone else enter and turned to see a small caliber revolver pointed at his chest. The intruder told him to empty his pоckets and face the wall. Witness Hammerstrom took brief looks at the intruder over the course of approximately 30 seconds. According to Mr. Hammerstrom, while emptying his pockets which included approximately $100, he was facing the intruder. As the intruder left, he told Mr. Hammerstrom not to leave for 15 minutes or he would be blown away. However, Mr. Hammerstrom heard a car horn beeping and looked out of the bathroom door to see the same man leaning into the open driver‘s door of his girl friend‘s car and hitting Ms. Zeitz with a pistol. Mr. Hammerstrom yelled at the assailant and the assailant fired two gunshots at Mr. Hammerstrom. Ms. Zeitz continued to struggle with the assailant by hanging onto her purse. However, she released thе purse when the assailant again pointed the gun at Mr. Hammerstrom and fired a third shot. After obtaining the purse, the assailant ran behind the gas station and Mr. Hammerstrom ran around the front of the station in pursuit. The assailant fired a fourth shot at Mr. Hammerstrom before jumping
Witness Teresa Zeitz testified that the lighting at the gas station was very bright. She observed a man pass within four to six feet of her with his face turned towards her. The man went into the same rest room that Mr. Hammerstrom had entered and closed the door. About a minute later the man came out of the rest room, approached her car, and opened the car door. He put a gun to her side and said, “give me your purse“. Witness Zeitz tried to pull her purse away and honked the car horn. The assailant hit her over the head with the gun approximately three times. At that point, Mr. Hammerstrom came out of the men‘s roоm and yelled at the assailant. After the assailant shot at Mr. Hammerstrom, he fled with Mr. Hammerstrom in pursuit. Ms. Zeitz ran to the gas station window to ask the woman attendant to call the police. At the trial, witness Zeitz identified defendant Michael Holmes as her assailant. Ms. Zeitz also testified that she and Mr. Hammerstrom had been at a local bar for three or four hours and that she had consumed three or four beers. She testified that the area over the gas pumps was well lit with fluorescent lights, but that the side of the
Witness Audrey Nance was the cashier at the gas station on the night of the incident. She testified that she looked out of the window when she heard a car horn blow. She observed a heavy-set black male, wearing a dark jacket and dark ski cap and standing by the open door of the Zeitz car. She was about 20 to 23 feet away and testified at the trial “as God is my witness, that is the man“, when asked to identify the defendant at the trial. However, at the line-up she did not make a positive identification for the reason that she thought the defendant‘s nose was a little bit wider than it showed in a composite drawing and that, at the time of the incident, she was quite a distance away and the light was not very bright. However, at trial, she stated that, if she had seen the assailant again on the night of the incident, she could have identified him.
Detective Ronald Morgan testified that Mr. Hammerstrom and Ms. Zeitz had done separate composites. The defendant was arrested on December 12, 1980, approximately one week after Detective Morgan received the composites, and the line-up wаs held on December 30, 1980, over one month after the incident. Initially, Detective Morgan testified that the line-up was not one of the
The defendant did not testify and gave his reason, out of the presence of the jury, as being the trial court‘s failure to suppress evidence of his prior conviction. The defendant‘s defense was that of alibi. Defendant‘s mother, Joan Holmes, testified that her son had accompanied her to defendant‘s great-grandmother‘s home for Thanksgiving dinner. She testified that she paid the defendant to wear a beige shirt, beige corduroy pants, black shoes, and a new beige coat which she had just
On appeal, defendant argues that the trial court abused its discretion in failing to exclude evidence
“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 effect and articulates on the record the factors considered in making the determination.”
The trial court has discretion to admit evidence of a defendant‘s prior convictions for impeachment purposes. People v Avery, 114 Mich App 159; 318 NW2d 685 (1982); People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). This discretion requires the trial court to balance the probative value of evidence of the prior convictions against the prejudicial effect. People v Avery, supra; People v Hughes, 411 Mich 517; 309 NW2d 525 (1981). In its balance of the probative value against the prejudicial effect on the issue of credibility, the court must weigh the following three factors:
“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 sub-
stantially 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?).” People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978).
The purpose for this threefold inquiry is:
“1) To put before the jury only those prior convictions indicative of the defendant‘s disposition toward truthfulness and veracity; and
“2) To keep from the jury those convictions which, although they may be indicative of defendant‘s disposition toward truthfulness, may interfere with the jury‘s ability to determine the defendant‘s guilt or innocence on the basis of the evidence. Such interference is what is meant by ‘prejudice‘.
“If, after evaluating these fаctors, the judge believes the prejudicial effect of admitting prior conviction evidence outweighs its probative value, the evidence should be excluded.” People v Hughes, 411 Mich 517, 520-521; 309 NW2d 525 (1981), reh den 412 Mich 1101 (1981).
On appeal, the standard to be employed is:
“1) whether the trial judge recognized his discretion to decline to admit evidence of the convictions, and 2) whether the trial judge‘s decision was so palpably and grossly violative of fact and logic as to amount to an abuse of discretion.” People v Carpenter, 120 Mich App 574, 580; 327 NW2d 523 (1982).
“[A]n 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 сonsiderations. In order to have an “abuse” in reaching such a 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.”
This Court is satisfied that the trial court exercised proper discretion in responding to defendant‘s two motions to suppress evidence of his prior record. The trial court stated, upon hearing the first motion, that it wished to research the question again. The trial judge referred to
Having ascertained that the court did exercise discretion, the next question is whether the trial judge abused his discretion by ruling that evidence of defendant‘s prior conviction for armed robbery was admissible to impeach defendant. Because of the trial court‘s reference to People v Jones, 98 Mich App 421; 296 NW2d 268 (1980), it is important to analyze the Jones case. The Jones case also dealt with a prior conviction which was identical to the charge being faced by the defendant; i.e., larceny in a building. The opinion in the Jones case observes that “frequently the issue of credibility is a cоmparison of the believability of the alleged victim or of an eyewitness with the defendant‘s denial“. Jones, supra, p 428. The Court in Jones observed that credibility becomes a central
“[B]oth the prejudicial effect and the probative value on the issue of credibility are because of the true fact of life, based on human experience and fundamental to human insight, that it is more probable that a person has committed a crime if he has done it before, maybe several times. A jury should not be deprived of that information simply because the crimes are similar or because the criminal record is extensive.” Jones, supra, p 429.
The foregoing observation is directly contrary to present cаse law which holds that this constitutes one of the prime reasons why such evidence should not be allowed. However, the opinion in the Jones case continues to observe that credibility constitutes a crucial factor to be considered under the balancing requirements of
Defendant argues that the pretrial line-up was constitutionally defective. Defense counsel, on appeal, incorrectly argues that the trial court denied a request for an evidentiary hearing as to the
Pursuant to People v Sullivan, 392 Mich 324; 220 NW2d 441 (1974), when a jury becomes deadlocked, the proper instructions for the jury are derived from ABA standard jury instruction 5.4 which reads as follows:
“Length of deliberations; deadlocked jury.
“(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury;
“(i) that in order to return a verdict, each juror must agree thereto;
“(ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
“(iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;
“(iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and
“(v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning а verdict.
“(b) If it apears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
“(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.”
In the present case, the trial court gave the following instruction after the jury had deliberated for approximately one-half day:
“In order to return a verdict, each juror must agree thereto; that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment.
“That each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;
“That in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of his opinion of his fellow jurors, or for the mere purpose of returning a verdict.
“You should consider that the case should, at some time, be decided; that you are selected in the same manner, and from the same source, from which any future jury must be; and there is no reason to suppose that the case will ever be submitted to twelve men and
women more intelligent, more impartial, or more competent to decide it, or that more clearer evidence will be produced on the one side or the other. And, with this in view, it is your duty to decide the case if you can conscientiously do so without surrendering your conscientious belief.”
Pursuant to People v Johnson, 112 Mich App 41; 314 NW2d 794 (1981), it is necessary to determine whether there has been a substantial deviation from the instruction approved in People v Sullivan, supra, and from ABA standard jury instruction 5.4. It is readily apparent that the trial court followed § 5.4 literally until the last full paragraph cited above. The additional language contains no pressure, threats, embarrassing assertions, or other wording that would cause this Court to feel that it constituted coercion. The fact that the jury returned within one-half hour does not in itself constitute proof of coercion. The trial court specifically stated that any decision reached should be reached conscientiously without surrendering one‘s conscientious belief. The additional language supplied by the court did not constitute error requiring reversal and did not constitute a substantial deviation. People v Johnson, 112 Mich App 41; 314 NW2d 794 (1981). By so ruling, this Court, however, does not advocate that trial courts supply such additional lаnguage in their instructions to a deadlocked jury.
Affirmed.
SHEPHERD, J., concurred.
M. J. KELLY, P.J. (concurring). I concur with the majority opinion subject to the following observations.
First, I agree with Justice LEVIN‘s concurring opinion in People v Talley, 410 Mich 378, 393; 301 NW2d 809 (1981), regarding the dangers inherent
Nor do I concur with the majority opinion‘s critique of People v Jones, 98 Mich App 421; 296 NW2d 268 (1980).
Finally, I do not agree that an otherwise valid line-up was impaired by the presence of one person taller than the others. Discrepancies in height do not necessarily result in constitutionally defective line-ups, People v Barnes, 107 Mich App 386, 389-390; 310 NW2d 5 (1981), lv den 413 Mich 867 (1982), and I find nothing in the briefs or records to indicate that the line-up here was in any way suggestive.