People v. Moseley , 94 Mich. App. 461 ( 1979 )

94 Mich. App. 461 (1979) 290 N.W.2d 39

PEOPLE
v.
MOSELEY

Docket No. 78-3390.

Michigan Court of Appeals.

Decided July 27, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.

Douglas J. Callahan, for defendant on appeal.

Before: N.J. KAUFMAN, P.J., and T.M. BURNS and R.M. MAHER, JJ.

PER CURIAM.

Defendant appeals by right from his jury trial conviction for larceny of property with a value in excess of $100. MCL 750.356; MSA 28.588. The only issue raised concerns the prosecution's use of defendant's prior convictions to impeach his trial testimony.

Before defendant took the stand, the prosecutor announced his intention to show three prior larceny convictions for impeachment purposes. Defense counsel argued that to allow impeachment by evidence of convictions for the same crime for which defendant was on trial would be more prejudicial than probative. Defendant's view was that it would be impossible for the jury not to infer from the evidence of prior convictions that defendant was more likely to have committed the present offense, an inference which is impermissible as a matter of law. The trial court ruled in favor of the prosecution, and the prosecutor inquired about two of the prior convictions in cross-examination.^[1] The trial court gave the standard instruction on impeachment by prior convictions in its charge to the jury. CJI 3:1:08.

Although impeachment through showing a prior conviction for the same type of crime as that for which defendant is on trial is not absolutely prohibited, People v Townsend, 60 Mich App 204; 230 NW2d 378 (1975), this type of evidence presents special problems, and trial courts must be sensitive to them. A failure to properly consider the dangers to the fact finding process has caused reversal in several recent cases.

In People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979), the Supreme Court reversed the conviction because the trial court weighed the similarity of the prior conviction and the charged offense as a factor in support of admission of this evidence, rather than as a factor pointing to exclusion. In People v Bennett, 85 Mich App 68; 270 NW2d 709 (1978), a majority of the panel found a reversible abuse of discretion where the trial court allowed impeachment by evidence of two similar prior offenses when impeachment by other nonsimilar crimes was thought to be sufficient. In People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978), this Court reversed because the trial court abused its discretion by refusing to suppress evidence of prior convictions where the trial court recognized that its decision would result in the prohibited inference or in a decision by defendant not to take the stand.

Based on these authorities, we have no doubt that it was error to allow the prosecution to present evidence as to the two prior convictions for essentially the same conduct for which defendant was on trial. Other, less prejudicial, alternatives existed, such as: showing only one conviction, or showing only that defendant had previous felony convictions of an unspecified nature.

In this case, however, the error was harmless. See, People v Stein, 90 Mich App 159; 282 NW2d 269 (1979). Given the overwhelming evidence against defendant, we cannot envision a single juror voting to acquit even if the error had not occurred. Defendant was apprehended immediately after the theft. Because of prior losses, the store security people were watching, and defendant was positively identified by several witnesses.

Affirmed.

N.J. KAUFMAN, P.J. (concurring).

I concur in the result reached by the majority, but do so for slightly different reasons.

The majority correctly note that impeachment by evidence of prior convictions which are similar to the crime for which defendant is on trial is not absolutely prohibited. People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979), People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), People v Townsend, 60 Mich App 204; 230 NW2d 378 (1975). A trial court is only required to exercise its discretion in light of the guidelines established in Jackson, supra, 333, in determining whether or not to permit the impeachment.

In the instant case, the trial judge exercised his discretion before permitting the prosecutor to use evidence of the prior convictions to impeach the defendant. Since there is no indication that he applied the Jackson tests in an improper manner, I am not prepared to say that the use of evidence of the two similar convictions is error, while the use of evidence of one similar conviction is not.

I agree, however, that if there was error in this case, it was harmless.

NOTES

[1] The third larceny conviction had resulted from a prosecution in Illinois, and it was unclear whether that offense would have been a felony in Michigan. The trial court did not exclude this crime, but rather the prosecutor voluntarily chose not to use it.