People v. Howard, Docket 49706

Docket 49706 | Mich. Ct. App. | Mar 16, 1981

104 Mich. App. 598" court="Mich. Ct. App." date_filed="1981-03-16" href="https://app.midpage.ai/document/people-v-howard-2226730?utm_source=webapp" opinion_id="2226730">104 Mich. App. 598 (1981) 305 N.W.2d 268" court="Mich. Ct. App." date_filed="1981-03-16" href="https://app.midpage.ai/document/people-v-howard-2226730?utm_source=webapp" opinion_id="2226730">305 N.W.2d 268

PEOPLE
v.
HOWARD

Docket No. 49706.

Michigan Court of Appeals.

Decided March 16, 1981.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James D. Norlander, Prosecuting Attorney, and John H. MacFarlane, Senior Assistant Prosecutor, for the people.

Kim Robert Fawcett, Assistant State Appellate Defender, for defendant on appeal.

Before: BEASLEY, P.J., and R.B. BURNS and C.J. HOEHN,^[*] JJ.

R.B. BURNS, J.

Defendant was accused of driving the getaway car in connection with the perpetration of a robbery of Young's Pharmacy in Albion, Michigan. Defendant denied any participation in the crime. He was tried by a jury and convicted on a charge of armed robbery, MCL 750.529; MSA 28.797.

Prior to trial, defendant moved to suppress evidence of his prior conviction of assault with intent to do great bodily harm less than murder. The trial court ruled that the prejudicial effect of this evidence would not outweigh its probative value as to defendant's credibility; however, it further stated that because the element of assault in both the prior conviction and the armed robbery charge might cause confusion in the minds of the jurors the prosecutor would not be allowed to inquire into the nature of the prior conviction. Defendant argues on appeal that the trial court erred in ruling that evidence of the prior unspecified felony conviction was admissible.

The Supreme Court in People v Van Dorsten, 409 Mich 942; 298 NW2d 421 (1980), entered an order and stated, "It is improper to impeach a defendant by telling the jury only of the existence of the unnamed prior felony convictions without providing the names of the offenses. It is the nature, rather than the fact, of a prior felony conviction which the jury is to use in its evaluation of credibility."

Reversed and remanded for a new trial.

C.J. HOEHN, J., concurred.

BEASLEY, P.J. (dissenting).

I respectfully dissent.

I do not believe People v Van Dorten^[1] is intended by the Supreme Court to announce a new rule that under no circumstances will a trial judge be permitted to exercise the discretion afforded him under MRE 609 to determine whether the probative value of admitting evidence of a prior unspecified conviction outweighs possible prejudicial effects. For over a century many, if not a majority of, trial judges have exercised the discretion vested in them under this rule and under the case law. This is not to deny the existence of a difference of opinion regarding this complex and important evidentiary issue. But, it is to say that the Supreme Court does not change a substantial portion of existing practice with summary, four-sentence orders such as employed in Van Dorsten.

For the reasons set forth in detail in People v Huff,^[2] I would affirm.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] 409 Mich 942; 298 NW2d 421 (1980).

[2] 101 Mich App 232; 300 NW2d 525 (1980).