People v. Vincent

288 N.W.2d 670, 94 Mich. App. 626, 1980 Mich. App. LEXIS 2404

• Court: Michigan Court of Appeals
• Decided: January 3, 1980
• Docket: Docket 43718
• Status: Published

Opinions

Danhof, C.J.

Carl Lee LaDosz, Anthony Mazzio and the defendant were charged with armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). In a joint jury trial, all the defendants were convicted of both offenses. The defendant brings this appeal as of right.

The evidence shows that at approximately 9:30 a.m. on January 17, 1978, a silver van entered the parking lot at Hudson’s Bait Shop in Wayne. Codefendant LaDosz entered the shop, carrying a bucket in which he wanted the store clerk to place some minnows. Almost immediately, a man in a blue mask appeared, holding a pistol to the clerk’s face. The clerk observed a third man outside the store, wearing a mask he could not describe. He was certain that the defendant was not one of the men in the store. The clerk was tied with tape and, after some scuffling about and shouting between the intruders, the men left. The clerk immediately freed himself and called the police.

Officers of several police agencies gave chase to a silver van almost immediately after hearing the radio report of the robbery; the first officer to take up the pursuit contacted the van approximately eight miles from the bait shop. After a high speed chase the van crashed to a stop and codefendants Mazzio and LaDosz fled. Defendant Vincent was held at bay inside the van. The van was found to contain two masks, a pistol and numerous guns and other items taken from the bait shop. The shortest time between the beginning of the robbery and the crash of the van supported by the evidence is 15 minutes.

Well before the prosecution rested its case, the trial judge disposed of motions concerning the admissibility of evidence of the defendants’ prior convictions in the event they elected to testify. Defendant Vincent had recently completed a prison term imposed upon a conviction of the Federal offense of misprision of felony.¹ After some rather casual argument by prosecution and defense, the trial court ruled that the fact and date of the defendant’s felony conviction could be shown but that the nature of that felony could be disclosed only upon the initiative of the defense.²

Of the attacks the defendant brings against this ruling, we need address only one. The defendant points out that in this state there is no crime known as misprision of a felony, see People v Lefkovitz, 294 Mich 263; 293 NW 642 (1940), and argues that his conviction of this Federal crime should not have been held admissible to impeach his testimony.

Impeachment of a witness by evidence of his past criminal convictions is controlled by MRE 609.³ The rule does not distinguish between foreign and domestic crimes. However, the rationale underlying this method of impeachment raises a difficult question when evidence of convictions for acts that are not criminal in Michigan are offered as evidence of crimes to impeach a defendant in a Michigan court.

Impeachment of the testimony of a criminal defendant by proof pf other convictions necessarily involves a rather fine compromise between the need to thoroughly evaluate his testimony and the much-cherished belief that a defendant should be punished for only the crimes for which he is prosecuted. When evidence of a defendant’s unrelated criminal activity is brought into a trial, the latter principle is severely tested, for there is always a danger that the trier will follow the forbidden reasoning that a "criminal” of the defendant’s "kind” is highly likely to have broken the law once again.

This means of impeachment can only have been sustained against its many critics because of the Relief that, despite the acknowledged risks, many acts that are criminal also reflect so strongly on a defendant’s credibility as to justify the danger to the defendant and to the integrity of our notions of justice. See generally, People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). The focus of this type of impeachment is conduct, rather than mere criminality. We believe that it would be anomalous indeed to strike this tightwire balance between competing values when the actions involved are not considered criminal in the court in which the compromise is attempted. We hold that unless the conduct that makes out the foreign offense can also meet the minimal elements of a Michigan crime admissible under MRE 609, the foreign conviction may not be proved to impeach a defendant in a Michigan court.⁴

The acts that bring criminal liability under 18 USC 4 would not constitute a felony in the courts of this state.⁵ Therefore, the ruling of the trial judge was in error.

We also note that the trial court ruled that the defendant’s Federal conviction could be presented by the prosecution only as an unspecified "felony”. Recently, this Court has examined this practice and found that by failing to disclose the nature of the felony, such a ruling effectively strips the evidence of the only probative effect that justifies its admission. See People v Jones, 92 Mich App 100; 284 NW2d 501 (1979), and People v Garth, 93 Mich App 308; 287 NW2d 216 (1979). In Jones, supra, the Court wrote:

"[Presentation of evidence of an unspecified 'felony’ conviction for purposes of impeaching the defendant’s credibility says nothing of the conduct that is asserted to bear negatively on the defendant’s reliability as a witness while presenting a very substantial possibility of jury speculation and consequent prejudicial impact upon the rights of the accused. The very difficult questions presented by the use of evidence of prior convictions for impeachment must be decided rather than compromised; as this case indicates, a compromise may be more injurious to a defendant than an adverse decision.” Jones, supra, at 113.

It has been suggested that, if the defendant is free to disclose the nature of the prior conviction the prosecutor has proved, the "compromise” decision is fair when evidence of the conviction is otherwise admissible. Garth, supra, V. J. Brennan, J., dissenting. However, when a trial judge denies the prosecution the power to present the nature of the prior offense to the jury, he has decided that the nature of the offense is either unduly inflammatory or misleading (as was the case in Jones, supra) or not sufficiently relevant to the defendant’s veracity (as was apparently the belief of the trial judge in the case at bar). Either circumstance dictates exclusion of the evidence altogether, rather than stripping it of its probative value and inviting the jury to speculate on what the defendant "felon” has done in the past. Further, the fact that a trial court’s admission of evidence of the whole conviction, including its nature, might not constitute reversible error is not sufficient justification for the compromise decision. Such reasoning, viewed in light of the "abuse of discretion” standard by which such decisions are reviewed, would effectively insulate the injury done by the evidence of a past unspecified "felony” from appellate repair.

When a defendant testifies and is improperly impeached, it is possible but difficult to assess the damage done to the fairness of the trial. It has been held that "overwhelming” evidence of guilt can render improper impeachment harmless. People v Makidon, 84 Mich App 287; 269 NW2d 568 (1978). In this case the evidence against the defendant is sufficient to support the conviction but cannot be termed "overwhelming”. The defendant took the position that he was not the third man at the bait store or that, if he was, he was not a willing participant in the robbery. Such a theory could draw significant support from the defendant’s testimony. Because the defendant did not take the stand, it is of course impossible to determine the value of the testimony he might have given. It is not clear that his decision to remain silent was a tactical move unaffected by fear of improper impeachment. See People v Denny, 86 Mich App 40; 272 NW2d 332 (1978).

The defendant shall have the opportunity to testify at a new trial without reference to his Federal conviction.

Reversed and remanded.

D. C. Riley, J., concurred.

1 "Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in'civil or military authority under the United States, shall be fined not more than $500 or imprisoned not more than three years, or both.” 18 USC 4.

Conviction under this statute requires some affirmative act directed at concealing a felony from authorities. Lancey v United States, 356 F2d 407 (CA 9, 1966).

2 This discussion occurred at two different points in the trial and, as to the defendant, was rather short:

"MR. NICHOLS: [for the defendant] Mr. Vincent has one conviction for misprision of felony, Federal crime. I don’t think that’s too relevant, doesn’t involve theft, dishonesty. He merely kept his mouth shut.

"THE COURT: What’s that? I know what misprision of felony is.

"MR. NICHOLS: I don’t have the dates, but he was released about a year ago.

"THE COURT: Misprision of a felony is a felony though under Federal Law, and I would allow the fact of a conviction but not in nature of any unless you want to bring it in.

"MR. NICHOLS: You won’t allow the nature of it?

"THE COURT: I won’t allow unless you, the Defendant’s attorney, wants to bring it in. I would allow them to say he was convicted once, 1971, or whatever it is.

"MR. HIGBEE: [for the prosecution] There is one as to Mr. Vincent. That was the misprision of felony.

"MR. NICHOLS: He was released about a year ago, misprision of felony.

"THE COURT: That’s title 18, section four, $500.00 fine, prison, not more than three years or both. I will let you ask him if he has ever been convicted of a felony and the year.

"MR. HIGBEE: I think it’s * * *

"MR. NICHOLS: Probably ’73, isn’t that on there, ’72, ’73. Isn’t that on there?

"THE COURT: It’s in the last 10 years.

"OFFICER PATTERSON: ’74.

"THE COURT: But not the nature, ’74, because, misprision of felony * * *

"MR. HIGBEE: I think it does go to the nature of deception.

"THE COURT: Well, misprision of felony is, I don’t think you can say that. And I will tell you why, because you can’t have misprision of felony unless somebody asks you if you know about something and you say no.

"MR. HIGBEE: You in- effect tell a lie about it or don’t 'fess up when you know something about it’.

"THE COURT: The statute says whoever had any knowledge of conviction of a felony cognizable of the felony of the United States, conceals and does not make known saying, some other person et cetera et cetera et cetera, shall be fined. I am just going to let it be conviction of a felony. If you want to bring it out, you can. I am not going to do it. I don’t know the particularities of it. It’s possible, but I don’t even know if it is or not. I will let you mention the fact that he has been convicted of a felony, 1974.”

3 MRE 609 provides in pertinent part:

"(a) * * * 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

"(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.”

4 There are doubtless many Federal crimes which, because of the unique concerns of that jurisdiction, may not be expected to have a counterpart in the law of any state. The disposition of the question such a conviction would present is not before the Court in this case.

5 The Michigan statute most closely resembling 18 USC 4 is MCL 750.149; MSA 28.346:

"Any person having knowledge of the commission of any oifense punishable with death, or by imprisonment in the state prison, who shall take any money, or any gratuity or reward, or any engagement therefor, upon an agreement or understanding, express or implied, to compound or conceal such oifense, or not to prosecute therefor, or not to give evidence thereof, shall, when such oifense of which he has knowledge was punishable with death, or imprisonment in the state prison for life, be guilty of a felony; and where the oifense, of which he so had knowledge, was punishable in any other manner, he shall be guilty of a misdemeanor, punishable by imprisonment in the county jail not more than 1 year, or by fine of not more than 500 dollars.”

It is apparent that Michigan, unlike the Federal jurisdiction, considers the acceptance of money or some other thing of value to be an important aspect of a defendant’s culpability in concealing his knowledge of a felony. Indeed, this statute would appear to indicate that actually concealing the felony is of less importance than agreeing or promising to do so for value.