*1 App 94 v VINCENT PEOPLE 19, 1979, at Detroit. Decided 43718. Submitted October Docket No. 3, applied January appeal for. to 1980. Leave of armed were convicted and two codefendants P. Vincent Robert of a robbery possession in the commission of a firearm and Hausner, shop Court, J. A bait felony, Wayne H. Circuit John gunpoint. up at He employee men held him testified that two wearing a mask. He was the store a third man outside observed the men in the was not one of defendant Vincent certain that employee the intruders left he After The was bound. store. report hearing police. After a radio called the freed himself and high police gave after a robbery to a silver van and chase stopped. parked The speed a vehicle and the van hit chase caught van. The inside the but Vincent was codefendants fled guns masks, pistol and other and numerous van contained recently shop. com- Vincent had from the bait items taken upon imposed the Federal pleted prison a conviction of term felony. that the misprision The trial court ruled of a offense of felony but that could be shown of this conviction fact and date except by felony disclosed could not be nature of the appeal appeals. defen- On Defendant initiative of the defense. known as argues is no crime in this state there dant felony argues his convic- misprision that evidence of and held admissible not have been Federal crime should tion of this testimony. impeach his Held: impeach proved Foreign may not be 1. convictions Michigan that makes unless the conduct defendant in a court of a meet the minimal elements offense can also out the offense, Misprision Michigan the Federal of a crime. it cannot be Evidence of in the courts of this state. not a impeach court used in criminal defendant. improper permit impeachment defen- of a criminal 2. It [4] [1-7] [5] [6, 7] 21 Am Jur 29 Am Jur 29 Am Jur 5 Am Jur 2d, 2d, 2d, Appeal References 2d, Criminal Law § Evidence § Evidence §§ for Points in 333. Error 320, 321, 7. §§ 778, 327. Headnotes 803. Vincent credibility by admitting dant’s evidence of a conviction of unspecified felony disclosing an without the nature of the felony. improperly impeached, 3. a defendant testifies and is Where *2 damage possible but difficult to assess the done to the it is Therefore, although improper impeach- trial. fairness of his testimony ment of a defendant’s is harmless error where evi- guilt overwhelming, dence of is if the is than less evidence overwhelming the error is not harmless and defendant’s convic- tion should be reversed and a trial ordered. new
Reversed and remanded. J., Kaufman, N. J. dissents. He would hold that the store employee’s testimony ap- and the circumstance of defendant’s prehension containing in a van masks and stolen items from presented overwhelming guilt. the store evidence of He would any further hold that error was harmless and defendant’s conviction affirmed. should be
Opinion of the Court n — Impeachment Foreign — — 1. Witnesses and Domestic Crimes Rules of Evidence. governing impeachment
The rule of a witness his past distinguish foreign criminal convictions does between crimes; question and domestic a difficult arises where evidence Michigan of convictions for acts that are not in criminal are impeach Michigan offered (MRE 609). crimes a defendant a court Activity — — — 2. Criminal Law Evidence Unrelated Criminal Jury Prejudice. — Effect on punished only A defendant should for the crimes for which he prosecuted; is where evidence of a defendant’s unrelated crimi- brought trial, activity always danger nal is into a there is reasoning that the trier of fact will follow forbidden highly likely "criminal” of the defendant’s "kind” is to have again. broken the law once Impeachment — — — 3. Criminal Law Prior Convictions Credibil- ity — Justification. Impeachment testimony by proof of a criminal defendant impeach- of other convictions can be sustained as means of that, despite acknowledged ment because of the belief risks, many strongly acts that are criminal also reflect so on a danger justify defendant’s as to to the defendant App 626 94 Mich justice; integrity the focus of this of our notions
and to the criminality. type impeachment conduct rather than Foreign — Impeachment — — Prior Convictions 4. Criminal Law Michigan — Misprision — — Federal Crimes Convictions Offenses. impeach may proved foreign a defendant not be A conviction Michigan that makes out the the conduct court unless of a Michi- the minimal elements can also meet offense offense, crime; misprision does not gan the Federal felony evidence of a in the courts constitute impeach Michigan court to be used in a of it cannot conviction 609). (18 4, MRE defendant USC of a criminal Credibility Impeachment — — — — Law Criminal 5. Witnesses Felony Jury Specula- — Unspecified — Prior Convictions Prejudice. —tion permit defendant’s improper of a criminal It admitting credibility by conviction of an evidence of a disclosing unspecified felony the nature of the without alone, standing says nothing unspecified felony, because the negatively on the defen- that is asserted bear the conduct *3 presenting very reliability while substan- as a witness dant’s consequent prejudicial jury speculation possibility of and tial rights impact upon of the accused. Impeachment Overwhelming — — — Criminal Law Witnesses 6. — Error. Harmless Evidence testimony impeachment harmless Improper a defendant’s overwhelming; possible guilt it is of his error where evidence damage a trial done to the fairness of to assess the but difficult improperly impeached. testifies and is where a defendant Kaufman, J. N. J. Dissent Impeachment Overwhelming — — —Law 7. Witnesses Criminal — Error. Harmless Evidence guilt im- Overwhelming render of a defendant’s can proper harmless error. of his Kelley, Attorney General, A. Robert Frank J. Derengoski, Cahalan, General, L. William Solicitor Reilly Prosecuting Attorney, Wilson, Prin- Edward Appeals, Bernacki, Attorney, cipal Frank J. and people. Prosecuting Attorney, for the Assistant Vincent Opinion Court Anthony appeal. Penta, Jr., C. for defendant on Danhof, C.J., Before: and N. J. and Kaufman D. C. JJ. Riley, Anthony LaDosz, C.J. Carl Lee
Danhof, Mazzio charged and the defendant were with armed rob- bery, possession 750.529; 28.797, MCL MSA a firearm the commission of a MCL 28.424(2). joint jury 750.227b; MSA In trial, all the defendants were convicted of both offenses. brings appeal right. The defendant this as of approximately The evidence shows that at 9:30 January 17, 1978, a.m. on parking a silver van entered the Shop Wayne.
lot at Hudson’s Bait shop, carrying Codefendant LaDosz entered the place bucket in which he wanted the store clerk to immediately, some minnows. Almost a man in a appeared, holding pistol blue mask to the clerk’s face. The clerk observed a third man outside the wearing store, a mask he could describe. He was certain that the defendant was not one of the tape men in the store. The clerk was tied with scuffling shouting and, after some about and be- intruders, tween the the men left. The clerk imme- diately police. freed himself and called the police agencies gave
Officers of several chase to hearing immediately a silver van almost after report robbery; radio the first officer to take up eight pursuit approximately contacted the van shop. high speed
miles from the bait After a stop chase the van crashed and codefendants *4 Mazzio and LaDosz fled. Defendant Vincent was bay held at inside the van. The van was found to pistol guns masks, contain two and numerous shop. and other items taken from the bait The beginning shortest time between the of the rob- 94 Opinion of Court bery supported and the crash of the van is 15 minutes. prosecution case,
Well before the rested its judge disposed concerning trial of motions admissibility of evidence of the defendants’ they testify. convictions in the event Defendant Vincent had prison elected to
recently completed imposed upon term a conviction of the misprision felony.1 offense of After some Federal argument by prosecution rather casual and de- fense, the trial court ruled that the fact and date felony of the defendant’s conviction could be felony that the shown but disclosed nature could upon the initiative of defense.2 1"Whoever, having knowledge felony of the actual commission of a cognizable States, by a court of the United conceals and does not as possible judge person soon as in'civil or not make known the same to or some other States, military authority under the United shall be fined imprisoned years, $500 more than or not more than three or 4. both.” 18 USC requires Conviction under this statute some affirmative act directed Lancey States, concealing felony authorities. v United from at F2d 407 1966). (CA 9, and, points This discussion occurred at two different in the trial defendant, to the was rather short: "MR. NICHOLS: Mr. Vincent one conviction has [for defendant] misprision for relevant, Federal crime. I don’t think that’s too theft, dishonesty. merely kept doesn’t involve He his mouth shut. misprision felony "THE COURT: What’s that? I know what is. dates, "MR. I don’t have the NICHOLS: but he was released about year ago. Misprision felony though "THE COURT: is a under Law, Federal and I not in would allow the fact of a conviction but any you bring nature of unless want to in. "MR. NICHOLS: You won’t allow the nature it?of attorney, you, "THE I won’t allow COURT: unless the Defendant’s once, bring say wants to it in. I would allow them to he was convicted 1971, whatever it or is. prosecution] "MR. HIGBEE: to Mr. Vincent. There is one as [for misprision felony. That was the year ago, misprision of "MR. NICHOLS: He was released about a felony. fine, 18, four, prison, not $500.00 "THE COURT: That’s title section *5 People 631 v Vincent Opinion of Court against brings Of the attacks the defendant this ruling, only we need address one. The defendant points that state is no out in this there crime misprision felony, a known as of see (1940), Lefkovitz, 263; 293 294 NW 642 and argues his of that conviction this Federal crime impeach should not have been held admissible testimony. his
Impeachment by of a witness evidence of his past by criminal convictions is controlled MRE distinguish 609. The rule does not between years you more than three or both. I will let if he ask him has ever felony year. been convicted of and the * * * "MR. I think HIGBEE: it’s ’73, ’72, Probably there, "MR. NICHOLS: that on ’73. isn’t Isn’t that on there? years. "THE It’s in COURT: the last 10 "OFFICER PATTERSON: ’74. nature, ’74, because, misprision "THE But COURT: not of * * * felony go deception. "MR. I think it HIGBEE: does the nature of Well, is, misprision felony you "THE of COURT: I think don’t can say of you why, you misprision that. tell And I will because can’t have felony somebody you you something if unless asks know about you say no. up "MR. You in- HIGBEE: effect tell lie about it or don’t 'fess you something when know about it’. says any knowledge "THE The COURT: statute whoever had felony cognizable States, conviction conceals and of the of the United saying, person does make known some other et cetera, just going cetera conviction of a et et cetera fined. I shall be am to let it be felony. you out, bring you If can. want I am not going possible, particularities to do it. I don’t know the of it. It’s but I you don’t even if it know is or not. I will let the fact mention that he has been convicted of a 1974.” provides pertinent part: MRE 609 * * * "(a) purpose attacking witness, credibility For of a evidence that he has been elicited from crime shall admitted if convicted public during or him established record cross-exami- nation but if "(1) punishable imprisonment was crime death or in excess convicted, year of one under the law he or the under which was crime theft, statement, dishonesty punish- regardless involved or of the false ment, and "(2) probative admitting the court determines value this outweighs prejudicial evidence on issue of effect.” its 94 Mich Opinion op the Court However, the rationale un- and domestic crimes. derlying raises this method question of convictions for when evidence difficult acts that are are
not criminal offered impeach defendant in a of crimes Michigan court. Impeachment of a criminal *6 pf proof necessarily by other convictions defendant compromise the fine between a rather involves thoroughly his and the to evaluate need should be that defendant much-cherished belief punished which he is the crimes for for prosecuted. of a defendant’s unre- When evidence brought activity trial, into a the criminal is lated latter always severely principle tested, is is for there danger the that the trier will follow reasoning that a "criminal” defen- forbidden dant’s highly likely have broken the "kind” is to again. law once impeachment only have been
This can means many against the critics because of its sustained despite acknowledged many risks, that, the Relief strongly reflect so on a acts defendant’s are criminal also that danger justify the integrity of our notions the and to the defendant People generally, justice. Jackson, 391 of Mich See v (1974). this 323; 22 The focus of 217 NW2d type conduct, than mere rather criminality. believe that be anoma- would We tightwire be- this balance indeed strike lous competing involved values when the actions tween are court in which
not considered criminal the attempted. compromise that unless hold We foreign can offense that makes out the conduct Michigan the minimal elements also meet crime admissible under 609, the con- MRE People 633 v Vincent Opinion op the Court may proved viction to impeach a defendant in a court.4 bring
The acts that criminal liability under 18 4 USC would not constitute the courts Therefore, ruling of this state.5 of the trial was in judge error. also
We note the trial court ruled that defendant’s Federal conviction could be presented prosecution an only as unspecified "felony”. Recently, this Court has examined this practice and found that failing disclose the nature of ruling such a effectively strips evidence of the only probative effect that justifies Jones, v People its admission. See 92 Mich App Garth, 100; (1979), 284 501 NW2d (1979). Jones, App 308; In NW2d supra, the Court wrote: unspecified 'felony’ an "[Presentation purposes impeaching
conviction for the defendant’s many which, There are doubtless crimes because of the Federal unique counterpart jurisdiction, may expected concerns of that not be to have a *7 any disposition question in of the law state. The of the present such a conviction would is not before the Court in this case. 5 Michigan closely resembling The statute most 18 USC 4 is MCL 750.149; MSA 28.346: person having "Any knowledge any of the commission of oifense death, punishable shall take by imprisonment prison, with or in the state who any money, any gratuity reward, any engagement or or or therefor, upon agreement understanding, express implied, an or or to compound oifense, therefor, prosecute or conceal such not or to or not thereof, give shall, to knowledge prison when such oifense of which he has death, punishable imprisonment was with or in the state life, knowledge, guilty oifense, felony; for of be and where the of which punishable manner, any he so had was in other he shall guilty misdemeanor, punishable imprisonment by in the county jail year, not than 1 more or fine of not more than dollars.” apparent Michigan, jurisdiction, It is that unlike the Federal con- acceptance thing money siders the of or some other of value be an to important aspect culpability concealing of a defendant’s in knowl- his edge Indeed, felony. appear aof this statute would to that indicate actually concealing importance agreeing the is of less than or promising to do value. so for 94 Opinion the of Court nothing says is the that asserted conduct reliability negatively as a on the defendant’s to bear possibility presenting very substantial witness while impact prejudicial consequent jury speculation and ques- very rights upon tions difficult The the accused. the presented by prior convic- the of evidence of use rather than must be decided for tions compromisemay compromised; indicates, a as this case injurious than an adverse to defendant more be decision.” supra, Jones, 113. at suggested that, if the defendant It has been prior conviction the nature free disclose proved, "compromise” prosecutor deci- the has the the conviction is when evidence of sion fair supra, Garth, V. J. Bren- admissible. otherwise dissenting. judge However, J., when trial nan, present power prosecution the the denies the jury, to the he has offense nature of either nature of the offense is that decided unduly (as misleading inflammatory was the or sufficiently supra) Jones, relevant or case (as apparently veracity was the defendant’s bar). judge Either in the case at of the trial belief of the evidence dictates exclusion circumstance altogether, probative stripping its than rather inviting speculate jury what on value and past. Fur- has the defendant "felon” ther, done admission of fact trial court’s including conviction, its of the whole evidence nature, might is not error not constitute reversible compromise justification for the decision. sufficient light reasoning, of the "abuse viewed in Such decisions are standard which such discretion” injury effectively reviewed, insulate would "felony” unspecified past by the evidence of a done repair. appellate from improperly and is defendant testifies
When a *8 possible impeached, difficult to assess it is but People 635 v Vincent N.J. J. Kaufman, Dissent damage It the fairness of the trial. has done to "overwhelming” guilt evidence of held that been improper harmless. Peo- render can ple Makidon, 287; 269 84 Mich NW2d v (1978). against the defen- In this case the evidence support the conviction but is sufficient dant cannot be "overwhelming”. termed The defendant position that he was not the third man at took the bait willing participant that, was, if he was not a
store or he theory robbery.
in the Such a significant support from the defen- could draw testimony. Because the defendant did not dant’s impossible stand, it is of course to deter- take might he have the value of the mine given. that his decision to remain It is not clear unaffected fear of was a tactical move silent improper People Denny, impeachment. See v (1978). App 40; 272 NW2d opportunity have the The defendant shall testify a new trial without reference to his at Federal conviction.
Reversed and remanded. J., D. C. concurred. Riley, (dissenting). agree N. J. J. I with the Kaufman, majority in their conclusion that the trial court admitting, impeachment purposes, erred in for evidence of defendant’s conviction of an cognizable offense not as a crime in the state of Michigan. emphasized It should be that not misprision Michigan not a crime but gone step that has further and abol- ished aider and abettor status for accessories after Lucas, 302; the fact. See 402 Mich (1978). NW2d 662 agree reasoning majority
I also with the the trial court abused its discretion in allow- *9 App 626 636 94 Mich Kaufman, N. J. J. Dissent ing present prosecution evidence of defen- unspecified dant’s ony”. conviction as an "fel- prior is allowed to
When a conviction be prejudicial manner, its admitted in this outweighs effect being probative value. Instead of its given of defendant’s or matter reflective jury speculate upon thereof, lack is left to severity of defendant’s conviction. disagree majority’s
However, I with the assess- gravity of this trial court error.. I find ment of by People the instant situation to controlled (1978), Makidon, 287; NW2d "overwhelming” it held that wherein guilt evidence of improper can render harmless. From the and evidence adduced in the appears people court, trial that three robbed the store, bait store. Two entered the one unmasked and the other masked. These individuals were identified as the codefendants. The third individual participated robbery who in the was never identi- employee fied. An of the bait store testified that he person saw another in a mask outside the door of the store. The witness also related robbers driving Dodge were a silver van. robbery, Wayne County
Within minutes of the police Dodge officer observed a silver van with occupants three male store. about 11 miles from the bait Having description the radio received pursued vehicle, robbers their the officer high speed ending van. There followed a chase eventually stopping hitting the van with after parked vehicle. stopped, the van
After two individuals exited passenger from the side. One was identified as LaDosz, the unmasked individual who codefendant had been inside the bait store. The other was appre- identified as codefendant Both were Mazzio. v Vincent Kaufman, J. Dissent N.J. chase. Defendant Vincent was after a foot hended apprehended Also found inside thé inside the van. many from the bait store stolen items were van including wallet, a knife and a the store clerk’s Additionally, shotgun. masks were found two therein. perpetrated by robbery three
Thus, we have a individuals, wore masks. We have two whom prox- being apprehended in close three individuals robbery, place imity time and to the one of in both At identified as the unmasked robber. whom is occupied apprehension, a vehicle these individuals *10 description that of the robbers. The the same was found this vehicle. De- merchandise stolen in the vehicle amidst this sto- was found fendant len merchandise. theory light evidence, defendant’s thát this
In that, store or the third man at bait he was not unwilling participant was, an if he robbery he was implausible. extremely The fiist becomes theory part an in that it calls for of this fails illogical assumption. not the To find defendant was store, one would have to third man at the bait up picked by the rob- assume that defendant was logic It defies to conclude bers after the incident. up fleeing stop pick and villains would stranger during escape this stran- their and allow ger occupy merchan- a seat amidst their stolen accepted, theory Moreover, dise. if defendant’s third inasked one álso has to assume that robber, presence the bait whose was testified dropped clerk, was store was off before defendant logically picked up. Clearly, con- it is much more this indeed sistent to conclude that defendant was third robber. theory equally riddled
Defendant’s duress testified that with inconsistencies. The clerk '94 Dissent N.J. J. Kaufman, third man and remained wore a mask outside the Assuming man, store. defendant was this third an altogether logical assumption above, as noted de- theory fendant’s fails when one duress considers presence that he out of the of the other two was Being store, defendant robbers. outside could activity any the criminal at time have abandoned perpetrators. without coercion from his fellow In- guard stead, he chose to remain masked on outside store. summary, although agree then, I
In with the premises espoused by majority, disagree I must quantum their conclusion. I find the evi- with overwhelming dence introduced herein to be so as to render the trial court’s im- admission of the proper impeachment evidence harmless error. Ac- cordingly, I would affirm defendant’s conviction.