People v. Moseley
290 N.W.2d 39
Mich. Ct. App.
1979
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PEOPLE v MOSELEY

Docket No. 78-3390

Michigan Court of Appeals

Submitted March 6, 1979, at Detroit. — Decided July 27, 1979.

94 MICH APP 461

Robert D. Moseley was charged with and convicted of larceny of property with a value in excess of $100. At trial, prior to defendant taking the stand, the prosecution announced its intention to present evidence of defendant‘s three prior larceny convictions for impeachment purposes. Over defense objections that evidence of these prior convictions for the same type of offense for which defendant was then on trial would create prejudice which outweighed the probative value, the Genesee Circuit Court, Thomas C. Yeotis, J., ruled that the prosecution could impeach dеfendant by use of evidence establishing the prior convictions. The prosecution presented evidence with respect to two of the three prior convictions, voluntarily choosing not to present evidence as to the third conviction because there was a question whether the larceny underlying the third conviction would have been a felony in Michigan. Defendant appeals. Held:

1. Although impeachment of a criminal defendant by evidence of prior convictions for the sаme type of crime as that for which defendant is on trial is not absolutely prohibited, the trial court must be sensitive to the special problems associated with such еvidence and must exercise its discretion in determining whether to admit such evidence. Since there were in the present case other less prejudicial alternаtives, such as showing only one conviction or showing that defendant had felony convictions of an unspecified nature, it was an abuse of discretion on the part оf the trial court to permit impeachment of the defendant by the use of evidence of two of defendant‘s prior felony convictions for larceny.

2. Any error аrising from the admission for impeachment purposes of evidence of defendant‘s prior felony convictions for larceny was harmless error, since the evidence was so over-whelming that, even absent the erroneously admitted evidence, defendant would not have been acquitted.

Affirmed.

N. J. KAUFMAN, P.J., concurred in the result reached by the Court, but for slightly different reasons than those expressed by the Court. He would hold that the admission of the evidence for impeachment purposes was not error, sinсe there was no indication that the trial court failed to consider all relevant factors in the exercise of its discretion.

REFERENCES FOR POINTS IN HEADNOTES

[1-4] 29 Am Jur 2d, Evidence §§ 320, 321.

[2] 29 Am Jur 2d, Evidence § 253.

[3] 5 Am Jur 2d, Appeal and Error §§ 778, 798.

OPINION OF THE COURT

1. CRIMINAL LAW — EVIDENCE — IMPEACHMENT EVIDENCE — ‍​​​​‌​​‌‌‌‌‌​​‌‌‌​​​​‌‌​​​‌‌​‌‌​​‌‌‌‌‌​​​‌‌‌‌‌‌​‍SUPPRESSION OF EVIDENCE — PRIOR CRIMINAL RECORD.

Impeachment of a criminal dеfendant by evidence of prior convictions for the same type of crime as that for which defendant is on trial is not absolutely prohibited; rather, the trial court must bе sensitive to the special problems associated with the use of evidence of prior convictions for the same type of offense and must exercise its discretion in determining whether to admit such evidence.

2. CRIMINAL LAW — EVIDENCE — IMPEACHMENT EVIDENCE — PRIOR CRIMINAL RECORD — ABUSE OF EVIDENCE.

It is an abuse of discretion for a trial court to permit impeachment of a criminal defendant by the use of evidence of two prior convictions for crimes which are essentially similar to the crime for which the defendant is on trial where other less prejudicial alternatives, such as showing only one conviction or showing that defendant had felony convictions of an unspecified nature, exist.

3. CRIMINAL LAW — EVIDENCE — PRIOR CRIMINAL RECORD — HARMLESS ERROR.

Error in the admission for impeachment purposes of evidence of a criminal defendant‘s prior convictions for crimes similar to the crime for which defendant is on trial is harmless error where the evidenсe against defendant is overwhelming.

CONCURRENCE BY N. J. KAUFMAN, P.J.

4. CRIMINAL LAW — EVIDENCE — IMPEACHMENT EVIDENCE — PRIOR CRIMINAL RECORD — ADMISSION OF EVIDENCE.

Admission, for the purpose of impeachment, of evidence of a criminal ‍​​​​‌​​‌‌‌‌‌​​‌‌‌​​​​‌‌​​​‌‌​‌‌​​‌‌‌‌‌​​​‌‌‌‌‌‌​‍defendant‘s prior convictions for crimes similar tо the crime for which defendant is on trial does not constitute reversible error where there is no indication that the trial court failed to consider all relevant factors in the exercise of its discretion.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.

Douglas J. Callahan, for defendant on appeal.

Before: N. J. KAUFMAN, P.J., and T. M. BURNS and R. M. MAHER, JJ.

PER CURIAM. Defendant appeals by right from his jury trial conviction for larceny of property with a value in excess of $100. MCL 750.356; MSA 28.588. The only issue raised concerns the prosecution‘s use of defendant‘s prior convictions to impeach his trial testimony.

Before defendant tоok the stand, the prosecutor announced his intention to show three prior larceny convictions for impeachment purposes. Defense counsel аrgued that to allow impeachment by evidence of convictions for the same crime for which defendant was on trial would be more prejudicial than probative. Defendant‘s view was that it would be impossible for the jury not to infer from the evidence of prior convictions that defendant was more likely to have committed thе present offense, an inference which is impermissible as a matter of law. The trial court ruled in favor of the prosecution, and the prosecutor inquired abоut two of the prior convictions in cross-examination.1 The trial court gave the standard instruction on im-peachment by prior convictions in its ‍​​​​‌​​‌‌‌‌‌​​‌‌‌​​​​‌‌​​​‌‌​‌‌​​‌‌‌‌‌​​​‌‌‌‌‌‌​‍charge to the jury. CJI 3:1:08.

Although impeachment through showing a prior conviction for the same type of crime as that for which defendant is on trial is not absolutely prohibited,

, this type of evidence presents special problems, and trial courts must be sensitive to them. A failure to properly consider the dangers to the fact finding process has caused reversal in several recent cases.

In

, thе Supreme Court reversed the conviction because the trial court weighed the similarity of the prior conviction and the charged offense as a factоr in support of admission of this evidence, rather than as a factor pointing to exclusion. In
, a majority of the panel found a reversible abuse of discretion whеre the trial court allowed impeachment by evidence of two similar prior offenses when impeachment by other nonsimilar crimes was thought to be sufficient. In
, this Court rеversed because the trial court abused its discretion by refusing to suppress evidence of prior convictions where the trial court recognized that its decisiоn would result in the prohibited inference or in a decision by defendant not to take the stand.

Based on these authorities, 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 of an unspecified nature. In this case, however, the error was harmless. See,

. Given the overwhelming evidence against defendant, we cannot envision a single juror voting to acquit even if the error had not occurred. Defendant was apprehеnded ‍​​​​‌​​‌‌‌‌‌​​‌‌‌​​​​‌‌​​​‌‌​‌‌​​‌‌‌‌‌​​​‌‌‌‌‌‌​‍immediately after the theft. Because of prior losses, the store security people were watching, and defendant was positively identified by several witnеsses.

Affirmed.

N. J. KAUFMAN, P.J. (concurring). I concur in the result reached by the majority, but do so for slightly different reasons.

The majority correctly note that impeachment by evidence of prior cоnvictions which are similar to the crime for which defendant is on trial is not absolutely prohibited.

,
,
. A trial court is only required to exercise its discretion in light of the guidelines establishеd in
, in determining whether or not to permit the impeachment.

In the instant case, the trial judge exercised his discretion before permitting the prosecutor to use evidence of the prior convictions to impeaсh the defendant. Since there is no indication that he applied the

tests in an improper manner, I am not prepared to say that the use of evidence оf the two similar convictions is error, while the use of evidence of one similar conviction is not.

I agree, however, that if there was error in this case, it was harmless.

Notes

1
The third larceny conviction had resulted from a prosecution in Illinois, and it was unclear whether that offense would have been ‍​​​​‌​​‌‌‌‌‌​​‌‌‌​​​​‌‌​​​‌‌​‌‌​​‌‌‌‌‌​​​‌‌‌‌‌‌​‍a felony in Michigan. The trial court did not exclude this crime, but rather the prosecutor voluntarily chose not to use it.