People v. Richard Johnson

423 N.W.2d 300, 167 Mich. App. 637
CourtMichigan Court of Appeals
DecidedApril 5, 1988
DocketDocket 96735
StatusPublished
Cited by3 cases

This text of 423 N.W.2d 300 (People v. Richard Johnson) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Richard Johnson, 423 N.W.2d 300, 167 Mich. App. 637 (Mich. Ct. App. 1988).

Opinions

Danhof, C.J.

Defendant appeals as of right following his jury conviction of unarmed robbery, [639]*639MCL 750.530; MSA 28.798, and his guilty plea to being a third-felony offender, MCL 769.11; MSA 28.1083. The sole issue on appeal is whether the trial court abused its discretion in ruling that defendant’s prior convictions for first-degree criminal sexual conduct and assault with intent to commit murder could be used for impeachment. While this appeal was pending, our Supreme Court released People v Allen 429 Mich 558; 420 NW2d 499 (1988). Since portions of Allen are to be given limited retroactive effect to pending cases, this case presents one of our first opportunities to apply Allen, 429 Mich 608-609.

The charges against defendant arose out of the unarmed robbery of Gregory Duvall, an employee of Wierenga’s Marathon gas station in Grand Rapids. Duvall and two other employees, Charles Poisson and Matthew Heyden, were working on the evening of March 11, 1986. Defendant previously worked at the gas station but quit several days prior to the robbery. Gregory Duvall was in charge of taking the day’s receipts to the bank for deposit. Duvall put the bank bag inside his coat and zipped his coat closed. Duvall was in his car when defendant approached him and asked for a ride. After going the distance of a few blocks from the station, Duvall pulled over and stopped his car to let defendant out. Defendant said, "I know you have that money.” Defendant hit Duvall in the face, knocking his eyeglasses into the back seat of the car. Defendant unzipped Duvall’s jacket, reached inside and took the bank deposit bag. Defendant got out of the car and walked away. The incident occurred between 9:00 and 9:10 p.m.

A police report was taken about 9:30 p.m. Officer Clemens went to defendant’s last known address at about 10:15 p.m. or 10:30 p.m. Clemens spoke to Patricia Woodford, who identified herself as defen[640]*640dant’s girlfriend. Woodford said that defendant did not live there and she had not seen him for three days. Although Woodford was listed as a witness on defendant’s notice of alibi, she was called by the people at trial. At trial, Woodford said that she told Clemens she had not seen defendant because she thought Clemens was "trying to be funny.” She said that defendant was at her house on the evening of March 11, 1986. Defendant left between 8:35 p.m. and 8:40 p.m. to go to the store. Woodford said that defendant returned about forty-five minutes later and that Officer Clemens had arrived during the time period that defendant was gone.

James Merriweather was also listed as a witness on defendant’s notice of alibi. Merriweather was called by defendant. Merriweather said that on March 11, 1986, he was with defendant from 8:50 p.m. until after midnight. At about 9:50 p.m., he and defendant and a third person went to a store where defendant bought cigarettes and pop, which he took to Woodford’s apartment. Defendant went inside the apartment for five to ten minutes while Merriweather and the third person waited in the car.

The first issue we will consider is whether defendant’s failure to testify waived the issue whether his prior convictions should have been suppressed. The United States Supreme Court has held that a defendant must testify in order to preserve the issue of improper impeachment by evidence of prior convictions. Luce v United States, 469 US 38, 41-42; 105 S Ct 460; 83 L Ed 2d 443 (1984). This Court has found that a defendant waived the issue of improper impeachment by his failure to testify when the record is inadequate to show whether defendant would have testified had the prior convictions been suppressed or what defendant’s testi[641]*641mony would have been. People v Finley, 161 Mich App 1; 410 NW2d 282 (1987), lv gtd 429 Mich 894 (1988). However, this Court has held that the issue is preserved for review if the defendant’s attorney (1) establishes on the record that defendant will in fact take the stand and testify if his challenged prior convictions are excluded, and (2) sufficiently outlines the nature of defendant’s testimony so that the trial court and the reviewing court can do the necessary balancing required under MRE 609. People v Casey, 120 Mich App 690, 696; 327 NW2d 337 (1982); People v Ferrari, 131 Mich App 621; 345 NW2d 645 (1983). In Allen, supra, our Supreme Court declined to address the applicability of Luce in Michigan because it could not achieve a majority position on the merits. Therefore, until our Supreme Court rules otherwise, we will continue to follow Casey and Ferrari.

In the present case, defendant moved for suppression of two prior convictions. Defendant’s attorney said that, if the prior convictions were suppressed, then defendant would testify. In addition, defendant’s attorney indicated that defendant’s testimony would be that the witnesses were fabricating a case against him. While this outline of defendant’s testimony was brief, we believe that it was minimally sufficient to preserve the issue for review.

Next, we will consider whether the trial court abused its discretion in ruling that defendant’s two prior convictions for first-degree criminal sexual conduct and assault with intent to commit murder could be used for impeachment. MRE 609 provides:

(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if
[642]*642(1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and
(2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination.

In Allen, supra, our Supreme Court amended MRE 609 and explained the effect of the amendment. Under the new rule, some prior convictions must be allowed to be used for impeachment while other prior convictions may never be used for impeachment, 429 Mich 593-594, 596. These "bright-line” rules do not apply to trials begun before March 1, 1988, and thus do not apply to the present case, 429 Mich 609. However, the trial court has discretion to allow theft crimes with no elements of dishonesty or false statement to be used for impeachment, 429 Mich 596. The Allen Court clarified the factors the trial court should consider when exercising its discretion. The court directed that, until the new MRE 609 becomes effective, these discretionary factors would apply to the balancing process that takes place under the current MRE 609(a) with regard to theft and nontheft crimes, 429 Mich 609.

As MRE 609(a)(2) directs, prior convictions may be used for impeachment unless their probative value is outweighed by the prejudicial effect. The Allen Court provided two factors to be considered in determining the probative value of prior convictions. First, the degree to which the crime is indicative of veracity should be considered. Second, the court should consider whether the prior conviction is remote or recent in time, 429 Mich 605-606.

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Related

People v. Finley
431 N.W.2d 19 (Michigan Supreme Court, 1988)
People v. Richard Johnson
423 N.W.2d 300 (Michigan Court of Appeals, 1988)

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Bluebook (online)
423 N.W.2d 300, 167 Mich. App. 637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-richard-johnson-michctapp-1988.