*1 PEOPLE v STEELE 11, 1981, May at June Detroit. Decided Docket 52259. Submitted No. 4, 1982. entering without convicted a of Kent H. Steele was larceny, breaking a Detroit Record- intent to commit with the Crockett, Jr., alleging Court, appeals George He error W. er’s suppress his four evidence of three of in the failure to excluding convictions, justify placing the on him to in burden convictions, jury. and in instructions evidence Gage, J., opinion by H. R. held: In an partially denying not abuse its discretion 1. The did suppress. of to The court admitted evidence motion substantially to not similar the crime those convictions recognized bearing dishonesty. charged as are which properly effect of 2. The court determined outweighed by its evidence having occurred to the issue of The trial requiring rule the court to amendment to the evidence reaching considered in on the record the factors articulate decision, judge was not state reasons absent showing misapplied the criteria. that he Placing persuasion of on the defendant was 3. the burden improper evidence all with the basic rule of accordance shown. is admissible unless otherwise relevant evidence found, injustice being the defendant’s failure 4. No manifest precludes appellate object review. instructions at trial Cynab, J., Gage, J., with R. but would hold concurred H. justifying the of defendant’s exclusion However, prosecution. properly rests on [1-3, [2, 5, 8, [5, [4] [7] 81 Am Jur Witnesses § 5, 5 Am Jur 5, 8, Am Jur 9] Am 29 Am 9] 9] Jur Am29 20 Am Jur 2d, Appeal 2d, 2d, 2d, Jur References Trial §§ Evidence Jur 2d, Evidence 125. 2d, 2d, and Error 623. Evidence Evidence §§ §§ 636. 341, Points § 346. § §§ 320, 251 et in Headnotes 321, seq., 327. 260. Steele he feels the factors to be court in and, weigh therefore, determination favor admission prosecution’s regardless burden was met *2 prosecution arguments whether or the the defendant advanced regarding admission. Affirmed. Riley, P.J., C. dissented. D. She would hold that it was error place
requiring to reversal the burden on the defendant to persuade court that his criminal record should be excluded. She would reverse.
Opinion Gage, of H. R. J. Impeachment — — — Law 1. Criminal Prior Convictions Rules of Evidence. A decision to allow of a defendant evidence of prior his is conviction within the discretion of a trial court 609). (MRE Impeachment — — — 2. Criminal Law Prior Convictions Rules of Evidence. probative A trial court must determine whether the value of prior evidence of a defendant’s conviction on the issue of credibility outweighs prejudicial prior exercising effect to (MRE 609). discretion admit to such evidence Impeachment — — 3. Criminal Law Rules of Evidence. recognize A discretionary power trial court should it has the to admit exclude a to reference a defendant’s convic- positively tion and identify indicate on the record its (MRE 609). exercise of discretion Reputation — Veracity. 4. Criminal Law for Truth and A defendant thereby places who testifies in his own behalf reputation veracity for truth and at issue. Impeachment — — — 5. Law Criminal Prior Conviction Burden of Persuasion. persuade The burden a is on defendant to the trial court that the impeach use of evidence of convictions to defendant if prejudicial he testifies more than of the defendant’s — — 6. Criminal Law Evidence Rules Evidence.
All relevant evidence is admissible in a criminal trial unless (MRE 402). otherwise not to be shown admissible Opinion Gage, R. of H. Appeal Jury — 7. Instructions. party’s claim that not consider Appeals should The Court of unless giving of an instruction to occurred in error objected specifically the instruction claiming party error to consider a verdict. jury retired before by Cynar, J.
Concurrence — Impeachment — — Burden Prior Convictions Law Criminal Persuasion. prosecution persuade burden is impeach a defendant use of evidence of credibility; the defendant’s than less is however, by the court in to be considered the factors where weigh admission the in favor of its determination met, regardless prosecution’s has been burden of explana- advanced defendant or whether the arguments. tions or Riley, P.J. D. C. — Impeachment — — *3 Convictions Burden Prior Criminal Law Persuasion. persuade to the trial court that burden is on the The impeach to the defen- use of convictions evidence credi- is than dant less bility. Kelley, Attorney General, Louis J. J. Frank Cahalan, General, L. Caruso, Prosecuting Attorney, cipal William Solicitor Reilly Wilson, Edward Prin- Appeals, Carolyn Attorney, Schmidt, people. Prosecuting Attorney, for the Assistant counsel), Craig Daly (Gary Granader, A. appeal. defendant P.J., and H. R. Before: D. C. Cynar JJ.
Gage,* charged with en- H. R. J. Defendant was Gage, breaking tering to commit without with the intent * sitting Appeals by assignment. judge, Court of Circuit v Steele Opinion op Gage, H. R. 750.111; MCL larceny. a Following MSA 28.306. a by jury trial defendant charged was convicted as prison and sentenced to a term of 30 60 months. to He appeals raising as of right two issues for re- view. We affirm.
Defendant first contends court erred partially denying suppress motion to evidence of four court sup- convictions. The pressed evidence on a conviction for at- tempted without but entry breaking, denied the regard motion with to 1977 conviction for lar- $100, under ceny a 1978 conviction for in a larceny building and a 1978 attempting conviction for to drive an unlawfully away automobile. Defendant testify. did not
The decision to allow impeachment
of a defen
dant
left
is
Jackson,
v
trial court’s discretion.
391 Mich
323,
(1974),
336;
discretion,
identify
its exercise of that discretion
and to determine whether
the prejudicial
effect of
the evidence outweighs
value on the issue of
Jack
MRE
son, supra, People
Cherry,
393 Mich
People Hughes,
(1974),
521;
762
758
Mich
115
Opinion
Gage, J.
of H. R.
colloquy
court and counsel
The
between
quoted by the
concerning
motion
defendant’s
recognized
that
the court
dissent. It demonstrates
suppress evidence of
the discretion
prior
that
it had
properly
that
it
convictions and
defendant’s
excluding
defen-
applied
609.
MRE
attempted entry without
conviction for
dant’s
recognized
similarity
breaking,
against admissibility
weighing
a factor
as
offense
prejudicial effect would
its
determined
outweigh
on the issue of credi-
Conversely,
bility.
court determined
convic-
theft-related
value of defendant’s
outweighed
Crimes
effect.
their
tions
recognized
specifically
involving
as ones
theft are
impeachment.
may
MRE
which
be used
609(a)(1).
in his own de-
If a defendant
testifies
reputa-
any
places
witness,
he,
fense,
like
other
veracity
Huff,
in issue.
tion for truth and
App 232, 241;
Mich
300 NW2d
regarding
the true facts
not misled
should
be
reputation
pertaining
for truth and
to defendant’s
veracity.
The court admitted evidence
substantially
which were not
those convictions
to the crime for
defendant
similar
which
bearing
recognized as
on dis-
trial and which are
honesty.
supra,
Huff,
It
not
did
abuse
partially denying
motion.
discretion
also
Defendant
contends
justify
placing
him to
erred
the burden on
excluding
rather
than
evidence of the convictions
justify
In a
its admission.
opinion by Judge Beasley,
well-reasoned
recently
Court
stated:_
disagree. People Roberson,
the other would
Riley, J.,
[1979],
dissent-
lv den
ing].)
do
find
On
record before this Court we
affirmatively misapplied any
relevant criteria.
*5
People v Steele
763
Opinion
Gage,
of H. R.
J.
"Regarding
Michigan cases,
the
People
we note
v
100;
Mich App
Jones
284
(1979)]
[92
rested
on the two cases of Luck v United States
App
US
[121
151;
DC
348
(1965)]
F2d 763
and Gordon v United
States
US
346;
DC
383
[127
F2d
(1967)], both decided in intermediate
appellate
Federal
Gordon,
courts. In
the court said:
"
contemplated
Luck also
that
it was for the defen-
dant
present
to the trial court sufficient reasons for
withholding past convictions
from the
in the face
of a statute which makes such convictions admissible.
* * *
underlying assumption
was that
convic-
tions would ordinarily be admissible unless this burden
is met. "The trial
peachment by prior
is not
to allow im-
every
conviction
time a defendant
’ (Footnote
takes the stand in his own defense.”
omit-
ted.)
opinion
"The Gordon
went on
say
that
to bar the
previous
use of
convictions as
the court
must find that
prejudice
outweighs
far
relevance
The court then further said:
"
persuasion
’The burden of
regard
in this
is on the
* *
added.)
accused;
(Emphasis
"We would also note
leading
that
Michigan case
People
Jackson,
supra,
v
places
cites and
heavy
upon
reliance
the cited Federal cases of Gordon and
Luck, supra.
circumstances,
Under
these
we believe
that
472
McCartney
App 620;
Mich
231 NW2d
[60
(1975)], People
Killebrew
Mich
[61
v
329 (1975)]
Jones,
supra,
are
holding
error
that
proof
burden of
is on the
prosecution to establish
value out-
weighs
possible prejudicial
suggest
effect. We
the rule is
quotations
contrary,
as indicated from the above
Gordon.”Huff,
from
supra, 250-251.2_
recognize
We
recently
Supreme
that Huff was
reversed
Court,
Huff,
explanation. People
in a one-line order without
light
Such rationale un- is admissible all relevant dence that Thus, even assum- shown. MRE less otherwise ing placed im- defendant, imposition such an *6 proper.3 conviction
The dissent would reverse had the prosecutor that the solely upon its belief admission of evidence justifying burden the ulti- reaching the the convictions without abused of whether the court mate determination Although its admission. allowing its discretion in Luck and Gordon in criticized recently Smith, United States v DC App 179 US (1976), in case did not base F2d 348 that large part, upon solely, its decision or even was on the finding persuasion that prosecutor.
The Smith court that the trial judge first noted proba- to determine whether failing erred in convictions, of the tive value of evidence ef- outweighed credibility, issue Indeed, for the court’s re- purpose fect. sole to make such a judge mand was Smith, determination. 179 US DC that 551 F2d 357. The court then determined a determina- failing error to make such judge’s not, tion could under the circumstances of the case, deemed The defendant ex- be harmless. His pressed testify desire to his own behalf. he wished attorney judge informed the trial We do not the court shifted the burden of believe apparent colloquy It from between the court and defendant. is purpose questions was to deter counsel that mine defendant’s counsel the sole of the court’s arguments by obligations imposed by the nature The advanced of the convictions. any were not result of sufficiently with the case that it was the court. The court was familiar light potential any suppression able to review motion prejudice to the defendant. v Steele Opinion of H. R. Gage, the crime deny any charged. connection with light both these statements the defendant Smith and his concluded that attorney, dissuaded, from pri- the defendant was testifying judge’s trial refusal marily to exclude evi- Smith, conviction. dence of his US 162, 179; 551 F2d 365. The court then con- DC prosecutor’s strong cluded that case was not so be it could said the defendant’s testimony have had some effect on the jury’s could deter- Smith, 179-180; mination. US DC error, therefore, The F2d 365-366. was not harm- Smith less. The decision cannot be relied upon for proposition reversal is solely argu- because the failed to offer any in support ment of the admission of evidence of the convictions. trial function court’s determine the prejudicial
whether effect of *7 outweighs value on the issue Hughes, supra. The court did not in denying abuse its discretion defendant’s motion to the three regard with theft-related offenses. allegation Defendant’s second of error concerns the court’s instructions to the jury. Defendant contends that the court misrepresented the theory of the defense and shifted proof defendant. Defendant failed to to the in- object structions, precluding appellate review in the ab- injustice. People Anglin, sence of manifest 268, 285; a Upon review of the in find entirety, instructions their we no manifest in- injustice. properly jury structed had proof. represented burden of The court adequately theory case. I would affirm. by Riley, D. C. P.J. Cynar, J. (concurring). agree I with the result Gage
reached I with by Judge concur her reasoning except suggestion for her the bur- den of justifying the exclusion of defendant’s convictions may properly rest on the defendant. I 609(a)(2) believe that the plain language of MRE places the burden on the prosecution. That rule provides that the court must determine probative value of evidence of the conviction out- weighs 609(a), its prejudicial effect. Rule when read in its entirety, requires that such a determi- nation be made as a prerequisite to admission. I interpret place the rule to persua- the burden of prosecution. sion on the
Regardless whether .defendant explanations advanced or arguments, the factors to be considered trial court in making its determination in weigh favor of admis- sion, and therefore the prosecution’s burden of persuasion has been met. P.J. (dissenting). Defendant was con-
victed a entering without breaking intent to commit larceny, 750.111; MCL MSA 28.306, and sentenced prison to a term to 60 appeals months. He his conviction as a matter of right, raising error, two allegations of one of which dispositive appeal. of this
Defendant contends that the trial court commit- ted error requiring reversal by partially denying his motion in limine suppress evidence of his prior convictions. Four convictions were at issue: under larceny larceny $100 building attempting drive unlawfully *8 an away in 1978; automobile and attempted enter- ing without breaking in 1979. Of the four convic- tions, only evidence on the 1979 attempted entry v Steele P.J. breaking was ruled without excludable. follow- ing excerpt transcript from the trial constitutes the entire discussion of defendant’s motion: Honor, attorney]: Your the 1979 as to con- 7Defense attempt viction entering which is the same as this one case, breaking, given without the rule in these concerning convictions, cases I would call the court’s attention to v Dale Craw- ford. you that, I don’t "The Court: think need belabor let prosecution.
me hear from respect "With to that conviction for is the same you offense as this one that any occurred have objections excluding that? No, 7Prosecuting Honor, your I Attorney]: have no objection excluding but I would ask if to testify, defendant does elect I could ask him about larceny his other conviction. time, I going
"The Court: am to take at them one that one we will exclude. are the others? What conviction, attorney]: There is a 1977 your 7Defense Honor, larceny under $100. "The breaking Court: That does involve entering? No, Honor, attorney]: your it doesn’t.
7Defense "The Court: That’s a misdemeanor? attorney]: correct, Honor, your That but 7Defense
my understanding of the statute is that— "The Court: It larceny? involved Yes, I attorney]: given would ask the court 7Defense the highly prejudicial nature of a crimes similar nature, involving breaking entering this one the volving larceny, larceny intent to commit and that also in- crime I think if Mr. Steele chose to testify, it very separate would be difficult for the value of that offense over the value.
"The Court: That misdemeanor is the other conviction he had? No, Honor, attorney]: unfortunately, your it
"[Defense *9 App Mich 758 768 115 by Riley, D. Dissent C. P.J. 1978, building and larceny also has in a
is not. In he automobile. attempt unlawfully driving away an 1978 will, said, I the 1979 'The Court: No. as I exclude entering. breaking involved and conviction that other convictions larceny, I believe that involved credibility outweighs the the incidental on the issue of relationship convictions between those charge.” and this in testify
Defendant did not his own behalf nor were called. any other defense witnesses regarding admissibility
Decisions of evidence judge’s convictions are within Jackson, v 323, 336; People discretion. 391 Mich (1974). People Cherry, v 22 393 Mich 217 In NW2d (1974), "the 261; 224 the Court stated: NW2d trial identify court must indicate positively discretion”, allowing barring its exercise of convictions. The testimony regarding prior factors judge which the must consider of evidence of admissibility determination purposes Crawford, People forth in 83 Mich set (1978), 39; 268 and succinctly restated People Clay, 152, 161; 289 NW2d (1980): "(1) bearing the nature of the and its offense (2) it credibility, whether is for substan- trial, tially the same conduct for which defendant is on closely requiring scrutiny related offenses close (3) prejudice, due to the likelihood of the effect process testify the decisional if the defendant does not impeachment.” out of fear of Whether adequately Crawford criteria need not be addressed since the colloquy quoted Court earlier indicates placed the court the burden on the defendant Steele C.D. P.J. that his persuade criminal record Crawford, supra, should be excluded. 38.1 I this error requires contend that reversal. The people justifying bear admission of prior convictions. v McCartney, evidence of case, the instant participate did regarding in the discussion the suppression *10 the of three prior which the refused court exclude. Since the court ruled on motion without hearing the from prosecution, persuasion of the burden was misplaced. deary acknowledge I decision, the McCartney placing the burden on prosecutor, was recently by panel criticized Huff, of this Court. App 232; 101 Mich rev’d 411 (1980), 300 525 NW2d (1981). 974; Mich 308 110 The Court of. Huff Appeals noted that Michigan cases decid- ing MRE great 609 issues placed weight on Luck v States, United 121 App US DC 151; 348 F2d 763 (1965), States, and Gordon v United 127 US App (1967). DC F2d 936 Gordon, Chief Burger, Justice then circuit the Luck judge, discussing test, after which re- quires prejudice must "far outweigh” pro- bative relevancy to credibility, stated: persuasion "The of regard burden in this is on the accused; and, raised, once the issue is District Court should an inquiry, allowing make oppor- an accused tunity to why judicial show discretion be exer- should 1The process trial court must consider the effect on the decisional if testify impeachment by the defendant does not out of fear of use of Crawford, 35, 39; App convictions. 83 (1978). unique The of facts this case the defendant’s important defense would be decisional reveal when the court effect on the considers the process testify. if defendant not does did The record trial factor present ultimately testify decision. The defendant did not did not any other witnesses his own behalf in this case. by Riley, P.J. record.” 127 of the criminal cised in favor of exclusion (Emphasis 343, 346-347; 939-940. F2d US added.) DC that Mc- Huff, above, in view of believed Cartney was suggested in error. The Court is to the rule on Huff, supra, contrary.
Huff persua- not decided on burden suggesting McCartney issue, and the dicta sion all due I believe to be erroneous. With incorrect Huff the weakness their respect panel, which, note, reliance on Gordon I is their analysis Smith, in United States elicited critical analyses 179 US DC 551 F2d in Smith charged The defendants attempted armed and the robbery credibility defendants’ use impeach 609(a) governed convictions. The issue was effec- the Federal Rules of Evidence which became the Gordon 1, 1975, eight tive after July years decision. court, compilation after an exhaustive *11 609(a) "man- FRE
legislative history, concluded that ifests an intent to shift the burden of to admission of conviction evi- respect Smith, 179 US DC impeachment”. dence test, 551 F2d 359. The Gordon 162, 173; the vari- versions, rule, the adopted ous subcommittee and the Smith court. The court compared by reasoned that the se- purely variations were mantic and stated:
"The the burden of estab- now must bear lishing that conviction evidence should be admit- grammatical interpretation ted. Our of the bare word- ing by of Rule 609 is reinforced the remarks of two leading of the during conferees debate on the floor v Steele by P.J. Defending product, the House. Conference Committee said, Congressman Dennis " present 'What the compromise say does is to can you inquire on cross examination about these [sic] type of convictions which really bear on credibil- ity, you can about all ask other felonies cross examination, you court, only if can convince the government, the burden is on the an impor- which is law, change probative tant the the of the question greater damage than the to the defendant * * 12,257 ed, Cong H (daily Rec December 1974). declared, "Representative Hungate puts rule '[T]he proponent [prior the of evi- conviction] dence to show that probative it should be used—to show that outweighs value of the evidence prejudicial its 12,254.” Id., Smith, effect the defendant.’ 179 US 162, 174; 551 DC F2d 360. 609(a)
MRE 609(a), is a modified of FRE version However, number of varying respects.2 609, "Impeachment by MRE Evidence of Conviction of Crime” reads: "(a) purpose attacking credibility General rule. For the of a witness, evidence that he has been convicted of a be crime shall by public during admitted if elicited from him or established record only if cross-examination but n "(1) punishable imprisonment by was crime death or in excess year convicted, of one under the law under which he or was the crime theft, statement, dishonesty regardless punish- involved or false of the ment, and "(2) court determines value of credibility outweighs prejudicial evidence on issue effect and articulates on the mination.” record factors considered in the deter- 609, "Impeachment by FRE Evidence of reads: Conviction Crime” "(a) purpose attacking credibility General rule. For the aof witness, evidence that has be he been convicted of a crime shall during public admitted if or elicited from him established record (1) punishable cross-examination but or if the crime was death imprisonment year which he excess one under the law under convicted, and the court determines value of admitting dant, outweighs this evidence effect the defen- (2) statement, dishonesty regardless involved or false punishment.” *12 [May- Riley, P.J. to that of 609(a) is similar MRE of purpose rule the criminal Michigan Under rule. federal be attacked can credibility if only "but imprison- punishable by death "(1) was crime under which the law year under of one in excess
ment theft, dishon- convicted, involved or the crime he was punishment, statement, regardless of false esty or value of probative "(2) determines credibility out- of on the issue admitting this evidence articulates effect and prejudicial weighs its making the determina- record the factors added.) (Emphasis tion.” evidence rule allows The federal deter- if "the court conviction felony of prior value, of mines effect prejudicial outweighs 609(a)(1). FRE defendant”. rules between purpose similarity rule, Michigan in the The variations clear.
appears notes committee in the state’s explained as than to shift other comments, purposes Rules Michigan Court persuasion. the burden legis- 344. The p Rules Annotated — Evidence controlling, in Smith set forth history lative persuasion. therefore, the burden on who bears therefore, the dicta persuaded, I am is on The burden misguided. and Huff are Gordon to demonstrate outweighs the evidence case, persua- In the instant effect. I believe. clearly misplaced sion remand. reverse and I would