*1 227 Mich PEOPLE v PARCHA 10, 1997, Docket No. 193181. Submitted June at Detroit. Decided Decem 30, 1997, appeal sought. ber at 9:05 A.M. Leave to Joseph by jury E. Parcha was convicted in the Recorder’s Court of Wendy Detroit, Baxter, J., great M. of assault with intent to do bod- ily possession during harm less than murder and of a firearm felony. commission of a The convictions arose out of the defend- shooting theory prosecu- ant’s nonfatal of his roommate. The of the shooting intentional, theory tion was that the while the shooting defense was that the was accidental. Defense counsel preclude impeachment moved in limine to of the defendant with prior convictions, evidence of two one for second- degree simple larceny, arguing retail fraud and one for that such impeachment 609(a)(2) was inadmissible under MRE because punishable by imprisonment neither crime was for more than one year probative outweighed by and the value of the evidence was prejudicial effect. The court found that the convictions dishonesty were for offenses that contained elements of or false permitted impeachment statement and of the defendant with 609(a)(1). evidence of the convictions under MRE appealed. defendant Appeals
The Court of held: proofs support 1. The at trial were sufficient to the defendant’s bodily great conviction of assault with intent to commit harm less than murder. The could infer from the defendant’s conduct in firing range, striking two shots at the victim from close one bullet barely the victim in missing the back and the other bullet the vic- head, tim’s that the defendant had assaulted the victim with the requisite intent to harm. 2. holding police The court did not abuse its discretion in that a possessed knowledge, training, experience witness sufficient drop-testing test-firing type and the of of firearm used qualified expert the defendant to be as an in firearms identification and examination. separate containing 3. The treatment of crimes the element of dishonesty 609(a)(1) or false statement in MRE from crimes con- taining the element of theft in MRE evidences an intent might general associated with crimes that be that the type containing of theft is not the the element scope 609(a)(1), bring because such of MRE will a crime -withinthe Only nugatory interpretation if a would render an a dishonest act that incor- has as one of its elements theft offense *2 porates will offense be or falsification the theft active deceit dishonesty brings type that it within the have the of deemed to scope MRE of simple larceny conviction cannot contain 4. The defendant’s scope dishonesty necessary bring MRE to it within the element element, simple larceny 609(a)(1), all theft if had that because element, rendering 609(a)(2) would have to have the offenses court, properly recognizing Accordingly, nugatory. while the trial prior convictions could not be that evidence of the defendant’s 609(a)(2) the offenses were misde- admitted under MRE because simple meanors, admitting lar- erred in evidence of the defendant’s ceny it was an under MRE on the basis that conviction false statement. offense that involved admitting question erred in evi- 5. The whether trial court prior the defendant’s misdemeanor conviction of second- dence of resolve, degree some of the retail fraud is more difficult to because involve dis- in which that offense can be committed do manners meaning 609(a)(1); honesty within the of MRE or false statement however, concerning facts that resulted in the record is silent unnecessary is, however, to fraud conviction. It remand the retail hearing a to determine whether the this matter to the trial court for bring particular underlying fraud conviction would facts the retail scope 609(a)(1), because the within the of MRE that conviction prior admitting error in evidence of the larceny any might simple have arisen and error that conviction prior admitting misdemeanor convic- evidence of the defendant’s second-degree retail fraud were harmless and were not out- tion of come-determinative. finding question that a whether the trial court erred 6. hearsay testimony portion and of the defendant’s trial testimony preserved instructing disregard was not objection trial, appellate appropriate at and the review an for question miscarriage will not result in a failure to review the
justice. Affirmed. Jr., J., dissenting, Holbrook, convic- stated that the defendant’s remanded for a reversed and the matter should be
tions should be trial, erroneous admission for because the trial court’s new impeachment purposes of the defendant’s misde- of evidence Mich Opinion Court meanor convictions cannot be said to be harmless error in this trial, primarily credibility which was contest. — — — —
Criminal Law Evidence Prior Convictions Larcenies Misdemean- — Impeachment. ors simple larceny A misdemeanor conviction of is not a conviction of an containing offense an element of or false statement meaning relating impeachment within the of the rule of evidence of a witness with evidence of a conviction of the witness (MRE609[a][l]). Kelley, Attorney Frank J. General, L. Thomas Casey, Prosecuting Solicitor D. General, O’Hair, John Attorney, Timothy Baughman, A. Research, Chief of Training, Appeals, and and Mark W.Bemardi, Assis- Attorney, Prosecuting people. tant for the Anthony appeal. R. Smereka, for the defendant on Before: Markman, P.J., and Jr., Holbrook, O’Connell, JJ. *3 by jury
O’CONNELL, J. Defendant was convicted
of
great bodily
assault with intent to do
harm less than
possession
murder,
750.84;
MCL
MSA 28.279, and
during
felony,
a firearm
the commission
a MCL
28.424(2).
750.227b; MSA
The convictions arose out
shooting
of defendant’s nonfatal
of his roommate. At
prosecution’s theory
shooting
trial, the
was that the
theory
was intentional, while the defense
was that the
shooting was accidental. Defendant was sentenced to
mandatory two-year
felony-firearm
a
term for the
ten-year
viction and to a five- to
term for the assault
appeals
right.
conviction. He now
as of
We affirm.
argument
appeal
Defendant’s first
on
is that the
prosecution presented
sup-
insufficient evidence to
port
disagree.
his assault conviction. We
In determin-
ing
presented,
whether sufficient evidence has been
light
this Court views the
a
most
People
prosecution
and determines whether
favorable to
a rational
trier of fact could have found that
proved beyond
essential elements of the crime were
a
People Hampton,
354,
reasonable doubt.
v
407 Mich
366;
(1979).
Viewing light favorable to prosecution, we believe that a rational trier of prosecution proved fact could have found that the beyond essential elements of the crime a reasonable attempted corporal doubt. Defendant to do harm to twice, his roommate when he shot at him at close fully with a range, pistol. loaded nine-millimeter The first shot hit the victim in the back in an area close to spine. his The barely second shot missed the victim’s head. An intent harm the victim can be inferred from defendant’s conduct. Id.
Defendant next contends that
trial
court erred
qualifying
expert
Officer Paul Hartzell as an
in fire-
arms identification and examination. We review the
trial court’s
an
discretion,
decision for
abuse of
Peo-
ple
Peebles,
Opinion the Court recog- (3) a must be from and the evidence issue, discipline. supra (citing at 667-668 Peo- Peebles, nized ple Remand], [After v Williams [1993]); 499 NW2d404 MRE 702. present Hartzell testified that he case, In the Officer test-firing drop-testing trained in and nine- had been handguns, and that he had test-fired this millimeter type weapon approximately forty fifty to times and drop-tested type weapon this three four times. completed forty Hartzell had trial, At the time of the forty-eight training, hours firearms test-fired to approximately weapons (three guns 150 to 200 five day approximately months), a for three examined two weapons, performed to three thousand and numerous comparison microscope. examinations on On the evidence, basis of this we conclude that the trial finding court did not abuse its discretion in Hart- possessed knowledge, training, zell sufficient and experience drop-testing test-firing of nine- weapons qualify expert millimeter him as an in this area. argues
Defendant next that the trial court abused admitting its discretion evidence of defendant’s two prior misdemeanor at trial. theft convictions Immedi- ately before defendant was to take the stand, defend- attorney preclude impeach- ant’s moved in limine to ment of his client with evidence of two misdemeanor September second-degree theft convictions: a retail fraud conviction for which defendant received a thirty-day jail May larceny sentence and a ninety-day viction for which he received a sentence. argued Defense counsel that evidence of the convic- tions was inadmissible because the convictions were year punishable by imprisonment more than one *5 Opinion of the Court outweighed effect the prejudicial because the and The trial court ruled value of the evidence. probative under of the convictions was admissible that evidence larceny the offenses of and because “dishonesty or false fraud contain elements retail credi- and because this was a “one-on-one” statement” trial court bility While we conclude that the contest. larceny in evidence of the con- admitting erred conviction, if the retail fraud we find that viction, any was harmless. error provides, pertinent part:
MRE 609 purpose (a) attacking General Rule. For the the credi- bility witness, the witness been con- evidence that has victed of a crime shall not be admitted unless the evidence by public has been elicited from witness or established during examination, record cross and (1) the crime contained an element of or false statement, or
(2) theft, the crime contained an element of and by imprisonment (A) punishable the crime was in excess year of one or death under the law under which the witness convicted, significant (B) the that the evidence has court determines probative credibility and, if value on the issue of the wit- trial, further ness is the defendant a criminal the court probative determines that valué of the evidence out- weighs prejudicial its effect. inteipreted, requires
As Rule 609 that the viction first be examined to determine whether an element of conviction contained People Allen, 558, 605; false statement. 429 Mich automatically If so, NW2d 499 the evidence is (1988). If not, admissible. Id. at 593-594. the court must an ele- determine whether the conviction contained so, ment of theft. Id. at 605. If the court must then App pun- examine the conviction to see if the crime was year prison, and, ishable than if more one proba- is a defendant, witness criminal whether outweighs prejudicial tive its value of effect. Id. at 605-606. expressed
The view has been all crimes involv- ing necessarily dishonesty. example, theft involve For Judge Burger, in Gordon v United —later Justice— (1967) *6 States, 343, 347; US DC 383 F2d 936 (emphasis supplied), “[i]n stated that common human experience cheating, stealing, fraud, acts of deceit, universally example, regarded for are as conduct adversely honesty which reflects on a man’s integrity.” approach, Under this which is not without appeal,1 its intuitive evidence of a conviction of a automatically theft offense would be admissible for impeachment purposes pursuant 609(a)(1). to MRE Supreme Indeed, before our Court’s decision Peo- ple supra, Allen, which amended MRE 609 to its present form, theft offenses were considered in the “dishonesty involving same breath as crimes or false impeachment purposes. statement” for See former lay persons 609(a)(1). Thus, MRE and even the trial may forgiven they impres- court be if were under the thievery dishonesty by sion that dishonest; is it is by respect, deed, conduct or but not word. In this we appeal note that defendant’s brief on admits that his 1 Judge Judge Burger’s proposition finds to contain more than Markman appeal agrees longer invariably intuitive but that it no law reflects the Michigan. Judge agrees Judge O’Connell with and if he were Markman, writing slate, on a clean would conclude that all theft offenses involve an dishonesty. element of dishonesty.”2 contain elements of As
convictions “do however, thievery “dishonesty” is not out, it turns meaning within the Court Allen, supra 595-596, Supreme
In at our reasoning itself from the explicitly distanced by expressed Burger. Though recognizing Justice traditionally been viewed as “theft offenses have probative veracity,” id. at the Allen strongly as a are not offenses, rule, Court concluded that theft reflective of one’s truthfulness as to warrant auto- so evidence of evidence of a matic admission into In the Court contrast, conviction of such an offense. having reasoned that crimes elements of sufficiently probative were of one’s or false statement veracity justify evidence of evi- admission into of one of those crimes. dence of conviction in the of crimen could be crimes, falsi, Such nature they merely imply identified the fact that did but incor- part perpetrator, on the or falsi- porated act, a dishonest such as active deceit offense itself. fication, Being as an element imply of such an offense did not dishon- convicted esty, but reflected it. *7 a
Thus, the Allen decision drew distinction between dishonesty or involving theft offenses and offenses a maintained in the cur- statement, false distinction By delineating MRE 609. two discrete rent version of whether evidence of a approaches determining admissible into evidence —one for prior conviction is dishonesty an or false containing crimes element an element of statement, containing one for crimes 2 overly prejudicial. brief, argues If that evidence was In his defendant 609(a)(1), however, MRE then the the convictions were admitted under prejudicial is irrelevant. effect emphasized theft —the Court that theft offenses do necessarily contain an element of any false statement. To now construe MRE nugatoiy other fashion would render MRE 609(a)(2), for if all theft offenses contain an element of dishon- esty they theft, because involve surplusage, serving purpose.3 would be mere no Therefore, pursuant Allen, we must first consider particular whether theft offense of which a defendant was convicted is in the nature of crimen falsi. present
In the case, credibility defendant’s was impeached4 with evidence of convictions of mis larceny, 750.356; demeanor MCL MSA 28.588, and retail fraud. MCL 750.356d; MSA 28.588(4).5 Because neither of these punish crimes is by imprisonment able year, in excess of one neither is pursuant admissible to MRE The trial 3 However, particular may a theft offense an contain element of dishon esty gives specific example or false statement. The Allen decision offense, stating “[wjhere such a theft a theft crime includes an ele statement, larceny by e.g., pretenses, ment of or false false it automatically Allen, supra will be treated as an admissible offense.” at n 17. 4 Defendant, appeal, prior felony in his brief on also refers to a convic attempted breaking entering. Though appears tion of it that defendant charged point past, was with such an offense at some in the the record is respect ultimately unclear with to whether he was convicted of this significantly, however, prosecution attempt offense. More did not impeach credibility below to with evidence of this offense. No present. reference was made to this offense while the Accord ingly, we do not address this issue further. appeal express par The record on does not contain references to the violating. ticular statutes defendant was convicted of From the references exist, specific that do we infer that defendant was convicted of the crimes opinion. set forth in the text of this *8 245
1997] Opinion of the Court of these admitted evidence this, court, recognizing 609(a)(1).6 to MRE pursuant convictions in Allen, decision account the Court’s Taking into that evidence to conclude we are constrained supra, larceny properly was not defendant’s conviction Larceny is the 609(a)(1). MRE pursuant admissible merely the offenses, requiring of theft most basic property asportation taking intentional 750.356; permission. MCL the owner’s another without People Ainsworth, 28.588; see also MSA felony (discussing 321, 324; (1992) 495 NW2d App of misdemeanor of a conviction If evidence larceny). an element of dis- to contain larceny is considered an every offense contains surely theft honesty, then every evidence of theft dishonesty, and element of pursuant to MRE thereby be admissible would may reasonably be con- 609(a)(1). 609(a)(1) so, to do as men- a fashion because strued such surplus- render MRE above, tioned would Supreme Court has stated Further, that the age. given does contain an ele- larceny by pretenses false n it would Allen, supra, p 596, 17, of dishonesty, ment larceny not. simple to infer that does seem reasonable larceny as its would have used Otherwise, the Court Allen, in accordance with example. Therefore, no element larceny contains viction of misdemeanor 609(a)(1). that term is used in MRE as appeal presented by prosecution argument in its brief on rests assumption convictions was of defendant’s that evidence on pursuant 609(a)(2). discussed While this subsection was to MRE admitted clearly court, attorneys that “we are talk court stated and the dishonesty or false ing an element of that contain about misdemeanors ” Therefore, primary (a)(1). It in under statement. comes [MRE is MRE focus of our discussion 227 Mich second-degree Defendant’s conviction of retail *9 28.588(4), fraud, MCL 750.356d; MSA is somewhat analyze. Though more difficult to the statute under essentially prohibits which defendant was convicted broadly shoplifting, literally there defined, exist doz may ens of distinct manners which one violate the permutations certainly statute. Some of these do not involve or false statement as those terms 609(a)(1). example, are used in MRE For if one com larceny respect property mits with to the store, of a second-degree one has committed fraud, retail MCL 750.356d(1)(b); 28.488(4)(1)(b). MSA Evidence of such a conviction would not be admissible for impeachment purposes pursuant 609(a)(1) to MRE for the reason that evidence of a conviction for lar ceny is not admissible, even should one conceal the property perpetrating the crime. See 28 Federal p (“[c]ourts § Practice & Procedure, 6514, 74, n 47 . . . would admit conviction evidence where the through crime was committed deceit, but not where it through surreptitious was committed stealth or activ ity” [citing United States v Mehrmanesh, 689 F2d 822, (CA 1982), relative to its discussion of FRE analogue 609]). 609, the federal of MRE prohibited by However, several of the actions certainly statute do involve or false state- example, price ment. tag For alteration of the of an item held for sale a store constitutes second- degree retail 750.356d(l)(a); fraud. MCL MSA 28.588(4)(l)(a). beyond It would seem to be cavil that this behavior involves deceit or untruthfulness. There- light fore, in of the fact that some of the behaviors prohibited by this statute involve crimen falsi some do not, it would seem that whether evidence of Opinion the Court 750.356d; MSA MCL violating
a conviction pursuant admissible is 28.488(4) underpinning factual specific on the turns conviction. no given we are present case,
Unfortunately, in the defendant’s con- surrounding context into the insight may well fraud. He retail second-degree viction of prop- larceny involving the effect, committed, have which is a conviction of erty store, of a to MRE pursuant admissible properly involving some act may have committed However, he the convic- evidence of in which case falsi, crimen would be admissible. tion it is unneces- analysis, we conclude that final In the *10 because, assuming the question this sary to resolve defendant’s conviction of evidence admission well, as we be in error retail fraud to second-degree See, e.g., were harmless. errors that these conclude 776 19; 494 NW2d App 15, Mich Bartlett, 197 People v a review- has stated that Court Supreme Our (1992). not affect errors that do disregard court should ing do not errors preserved when the rights substantial Mich Mateo, 453 rights. fundamental involve “sub- that affects An error (1996). 891 203; 551 NW2d is outcome-determinative. is one that rights” stantial (1994). NW2d 123 Mich Grant, 445 People v evidence above, the case, as discussed present In the shot the that defendant established overwhelmingly barely bullet and that a second in the back victim juror a reasonable Thus, victim’s head. missed the that at trial presented the find from could Further- crimes. charged was guilty defendant only men- were convictions more, defendant’s prosecu- brief; the reference and the once tioned App 227 Mich during closing tor did not refer to the his convictions argument. rebuttal Given the circumstances, we say relatively cannot that correction of this minor any jury signifi- error would influenced have respect. cant argument
Defendant’s final is that the trial court jury precluding abused its discretion from con- sidering testimony on direct examination immediately shooting, that, after the he said to the you victim, “It accident,” was an and “Are hurt? I will regarding call 911.”After defendant testified his state- prosecution objected victim, ments to the on the self-serving hearsay. that basis the statements were exculpatory The trial court found the statements to hearsay disregard be and instructed the them. object Defense counsel did not trial to the court’s rul- ing argue and did not that the statements were not hearsay. We find that defendant has waived his asser- testimony by failing tion was admissible specific arguments first raise in the trial court argues appeal. that defendant now on See Blake v Corp, Consolidated Rail 506, 520; (1989). any NW2d914 In case, even if the statements may have been admissible under one the theories argued present (MRE now defendant 803[1] sense impression, utterance), MRE 803[2] excited we do miscarriage jus- believe that the error resulted in a testify 769.26; tice. MCL MSA28.1096. Defendant did *11 concerning including his events, version of the his calling jmy 911, and the chose not to believe his ver- likely It is sion. not that the of admission these two self-serving statements would have affected the verdict.
Affirmed. by Holbrook, Jr., J. Dissent
Markman, P.J., concurred. (dissenting). dis- respectfully I
Holbrook, Jr., J., sent. of ruling evidence erroneously that
Although
convictions
misdemeanor
theft
prior
two
defendant’s
characterized
admissible,
properly
trial court
was
the
credibility contest
as a
the case
“one-on-one”
jury
going
believes is
to
and what the
which “[w]ho
evi-
prejudicial
The
and
court’s erroneous
pivotal.”
be
perception
the
dentiary
a direct effect on
rulings1 had
yet
majority
the
here con-
credibility,
of defendant’s
admitting
of these
that the error in
evidence
cludes
opin-
in their
because,
harmless
convictions was
prior
likely to have been
jury’s
was not
ion, the
verdict
by
error,
guilt
and defendant’s
was
influenced
the
majority’s conclu-
“overwhelmingly
established.”
what
the
rule
evi-
negates
bright-line
regarding
sion
is
under MRE
convictions
admissible
dence
by
Supreme
our
Court
Peo-
609(a)(1), established
Allen,
(1988),
Dissent Holbrook, Jr., majority’s conclusion my Thus, opinion, harmless evidentiary errors were court’s the trial majority’s judgment own of the a substitution stitutes are jury. of the “Jurors for that guilt of defendant’s court nor neither the trial facts and judges sole of that with their exercise interfere this court can *13 93, 100; 3 NW2d Miller, 301 Mich People v right.” 291, 300; Barker, v (1942); (1981). NW2d 61 for a new trial. and remand
I would reverse (1988) (preamendment of evi- no error in admission NW2d receiving and con- conviction for of the defendant’s misdemeanor dence cealing completely property dissimilar to current where it was stolen testimony supported self- the defendant’s and other defense offense supra (error theory); Logan, harmless because States v defense United witness, impeach was used to a defense convictions emphasize convictions, gov- prosecutor defendant, and the did not defendant); “strong against v Scis- United States had case” ernment 6, 325, (CA 1989) (admission ney, of evidence of 885 F2d 326-327 jury prior shoplifting where the was harmless error conviction govern- “prior with the law” and the brushes was aware of the defendant’s 184, Chadwick, one”); McHenry “strong 896 F2d case was a ment’s plaintiffs (admission (CA 1990) of evidence concealing property was harmless error because stolen viction for burglary plaintiff already was convicted of that the aware offense). serving time for that