People v. Avery , 114 Mich. App. 159 ( 1982 )

114 Mich. App. 159 (1982) 318 N.W.2d 685

PEOPLE
v.
AVERY

Docket No. 49645.

Michigan Court of Appeals.

Decided March 17, 1982.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, George B. Mullison, Prosecuting Attorney, and Thomas J. Rasdale, Assistant Prosecuting Attorney, for the people.

Susan J. Smith, Assistant State Appellate Defender, for defendant on appeal.

Before: V.J. BRENNAN, P.J., and ALLEN and T.C. MEGARGLE,^[*] JJ.

T.C. MEGARGLE, J.

Defendant was charged with forgery, MCL 750.248; MSA 28.445, and uttering and publishing a forged instrument, MCL 750.249; MSA 28.446. On April 25, 1979, in Bay County Circuit Court, a jury found defendant guilty of both counts. Defendant was sentenced to concurrent terms of 6-1/2 to 14 years. Defendant appealed as of right.

Defendant raises four issues in his appeal. The first issue is whether or not the trial court reversibly erred in ruling that evidence of the defendant's prior felony convictions could be used to impeach defendant should he testify in his own behalf.

Before trial defense counsel made a motion in limine to exclude defendant's prior criminal record should defendant decide to take the stand. The prosecutor objected and stated that there were a number of felony and dishonesty-related misdemeanor convictions against the defendant within the past ten years. The trial court ruled that evidence of all prior felonies committed within the past ten years, except those involving forgery and uttering and publishing, was admissible. The trial judge specifically indicated he was exercising his discretion and that the probative value of evidence of these convictions outweighed any prejudicial effect.

Use of a defendant's prior felony conviction record for impeachment purposes is within the discretion of the trial court. People v Jackson, 391 Mich. 323; 217 NW2d 22 (1974). The trial court exercises this discretion by balancing the prejudicial effect of the evidence of prior convictions against their probative value on the issue of credibility. People v Hughes, 411 Mich. 517, 520; 309 NW2d 525 (1981).

In People v Crawford, 83 Mich. App. 35; 268 NW2d 275 (1978), this Court construed Jackson, supra, as envisioning a true exercise of discretion by balancing the competing factors involved. The Court listed the factors which the trial judge must weigh in making his determination: one, the nature of the prior offense; two, whether it is for substantially the same conduct for which the defendant is on trial; and three, the effect upon the decisional process if the accused does not testify out of fear of impeachment by evidence of his prior convictions.

It is clear that the trial court must indicate its recognition of this discretion, People v West, 408 Mich. 332; 291 NW2d 48 (1980), People v Cherry, 393 Mich. 261; 224 NW2d 286 (1974), People v Henry, 101 Mich. App. 585; 300 NW2d 639 (1980), or it must appear on the record that the trial judge was aware that he had the discretion to disallow evidence of the prior convictions. People v Castillo, 82 Mich. App. 476; 266 NW2d 460 (1978), People v Pleasant, 69 Mich. App. 322; 244 NW2d 464 (1976).

It is not clear, however, whether the record must affirmatively reflect the trial court's awareness of the proper criteria, as several recent panels from this Court have reached opposite conclusions. Some panels have held that the trial judge should note his discretion and the factors underlying his decision on the record, or the record should specifically indicate his cognizance of the criteria. People v Dyson, 106 Mich. App. 90; 307 NW2d 739 (1981), People v Joyner, 93 Mich. App. 554; 287 NW2d 286 (1979). Other panels have determined that the case law does not require a finding by the trial court on the Crawford factors and, in the absence of an affirmative misapplication of the three criteria, declined to presume that the judge failed to consider the relevant criteria in admitting the evidence. People v Love, 91 Mich. App. 495; 283 NW2d 781 (1979), People v Roberson, 90 Mich. App. 196; 282 NW2d 280 (1979), People v Wakeford, 94 Mich. App. 249; 288 NW2d 381 (1979).

In the instant case it is unclear from the record whether the trial judge knew the exact prior felony convictions with which the prosecutor intended to impeach the defendant. Defendant argues the trial judge could not intelligently weigh whether the introduction of these prior convictions was more probative than prejudicial without knowing what the convictions were. However, the trial judge did exclude all misdemeanors, convictions over ten years old and forgery or uttering and publishing convictions stating that these convictions were excluded because their probative value was outweighed by their prejudicial effect on the defendant.

Although the trial judge explicitly acknowledged and exercised his discretion to admit defendant's criminal record, the record on the motion to suppress these prior convictions reveals no discussion of the Crawford criteria.

In the instant case under Roberson, supra, the trial court committed no error as it recognized and exercised its discretion, while under Dyson, supra, the trial court would have committed error as there was no discussion of the Crawford factors unless such error was harmless in view of the overwhelming evidence of the defendant's guilt.

We choose to follow Roberson, supra, and hold that the trial court did not commit reversible error. Even under Dyson, error, if committed, would be harmless as the evidence against the defendant in this case was overwhelming. Defendant was seen endorsing his name to a check which did not belong to him in an attempt to purchase items at a department store. Defendant presented no witnesses in his own behalf. It would appear that the evidence against the defendant was simply too overwhelming. Defendant's claim of error is, therefore, without merit.

The second issue is whether or not the defendant's conviction for forgery and uttering and publishing based upon the facts of this case constitute multiple convictions and double punishment for the same offense, in violation of the Double Jeopardy Clause.

Defendant's double conviction for forgery and uttering and publishing cannot stand. A defendant may not be convicted of two crimes where, on the facts of the particular case, the trier of fact must necessarily find the defendant guilty of one crime in order to convict him of another. People v Grable, 95 Mich. App. 20; 289 NW2d 871 (1980).

Defendant's conviction of forgery and uttering and publishing constitutes "factual" double jeopardy. We hold that the defendant's forging an instrument and presenting it for payment constituted only a single criminal transaction. Defendant's right not to be placed twice in jeopardy for the same offense was violated as the circumstance of the forgery was not severable and apparent from the uttering and publishing.

The evidence at trial established that defendant went into a Sears store, selected some clothing and approached the sales clerk, who rung up the merchandise for him. Defendant wrote out a check in front of the sales clerk, who immediately recognized the check as having been stolen. Defendant then presented some identification to the clerk so that the check would be taken as payment for the clothing. The clerk went to the store detective and an assistant manager remained at the coutner in order to detain defendant. The entire episode from the time the defendant first came to the sales counter to the time that the store detective came down to investigate was approximately ten minutes. We hold that these facts constitute a single criminal transaction and violate "factual" double jeopardy. The fact of forgery supplied the element of knowledge indispensable to a conviction for uttering and publishing in this case. No evidence of knowledge that the instrument was false, a necessary element of uttering and publishing, was presented at the trial apart from the fact of forgery. The forgery was therefore a necessary prerequisite for the uttering and publishing of which the defendant was also convicted. Because there is no legislative intent to clearly authorize multiple convictions and cumulative punishments based upon one factual occurrence, the two convictions and punishment for forgery and uttering and publishing cannot stand. Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 NW2d 793 (1979).

Under People v Grable, supra, this Court held forgery supplied the element of knowledge indispensable to a conviction for uttering and publishing; it is as if the forgery merged into the latter offense, at least for double jeopardy purposes, so as to constitute but a single wrongful act. There is no evidence of knowledge that the instrument was false, apart from the fact of forgery. Consequently, we hold that the appropriate remedy is to affirm defendant's conviction for uttering and publishing a forged instrument, and to vacate defendant's conviction for the crime of forgery. See also People v Stewart (On Rehearing), 400 Mich. 540; 256 NW2d 31 (1977).

Defendant's third claim of error is that he was improperly convicted of uttering and publishing because defense counsel failed to recognize and argue that there was a factual issue as to the presentment of the check.

We find this argument to be without merit, although there are very few Michigan cases which discuss presentment in a factual context. Those that do support the prosecutor's argument that presentment was established. See People v Rogers, 411 Mich. 202; 305 NW2d 857 (1981), People v Fudge, 66 Mich. App. 625; 239 NW2d 686 (1976).

Defendant claims he was denied effective assistance of counsel because his trial attorney did not argue lack of presentment to the jury.

In People v Coyle, 104 Mich. App. 636; 305 NW2d 275 (1981), this Court discussed how a claim of ineffective assistance of counsel was to be reviewed. In this case defense counsel's overall performance was capable. The only alleged error was his failure to argue lack of presentment. However, this would have been a minimal argument. Apparently the defense counsel instead chose to argue that there never was a risk of loss to Sears, since the clerk knew, as soon as she saw the check, that it was stolen and, therefore, there was only attempted forgery and attempted uttering and publishing.

It is well established that this Court is reluctant to substitute its judgment for that of trial counsel in matters of trial strategy. People v Lotter, 103 Mich. App. 386; 302 NW2d 879 (1981), People v Penn, 70 Mich. App. 638; 247 NW2d 575 (1976). Defendant was not deprived of a substantial defense.

Defendant also alleges that the trial court's instructions on attempted uttering and publishing were either too general or too confusing. Apparently defendant claims that the trial court failed to adequately present the defense theory of lack of presentment, a crucial issue, and failed to adequately distinguish between attempted uttering and publishing and the completed offense. This argument is without merit.

It is well settled that appellate review is precluded if no objection is made at trial to jury instructions, provided the jury instructions, viewed as a whole, did not mislead the jury, were adequate and not inconsistent with substantial justice. People v Hogan, 105 Mich. App. 473; 307 NW2d 72 (1981). When defendant does not object to jury instructions given by the trial court, reversal is not warranted unless manifest injustice would result. People v Dixon, 84 Mich. App. 675; 270 NW2d 488 (1978), lv den 405 Mich. 837 (1979).

Although defense counsel did object to some of the jury instructions, there was no objection that the attempted uttering and publishing instruction itself was not proper. Furthermore, earlier in the trial the judge gave the jury some general instructions after a lengthy discussion of acceptance of a bad check and defense counsel stated he had no objection to those instructions, though he objected to the court's instructions on acceptance of the check.

Because the trial court's instructions on attempted uttering and publishing were not objected to at trial, this Court will reverse only if it finds error which, if uncorrected, would result in manifest injustice to the defendant. After reviewing the jury instructions as a whole, it becomes apparent that the jury was sufficiently charged as to attempted uttering and publishing. Although the instructions could have been more specific and clear, they were nevertheless satisfactory inasmuch as the judge listed the specific elements of forgery and uttering and publishing and then instructed the jury as to attempt for those crimes. People v Bailey, 103 Mich. App. 619; 302 NW2d 924 (1981). The jury was then told that attempted uttering and publishing was a lesser included offense of uttering and publishing, almost identical to the standard jury instructions on attempt as a lesser included offense. This instruction was satisfactory and did not mislead the jury. Even if the instruction was erroneous, it does not rise to the level of manifest injustice if left uncorrected; therefore, defendant's claim is without merit.

Defendant's last claim of error is the issue that the prosecutor's remarks were improper, appealed to civic duty and a complete perversion of the law of attempt. The prosecutor did state that the jury was "the spokesman for the community's conscience" and argued, "We have a very strong uncontroverted, unquestioned eyewitness testimony that the defendant was observed writing out a check, that he presented this check and some identification." The prosecutor, contrary to defendant's allegation in his brief, did not tell the jury that they had a duty to this state to convict people like defendant.

Defendant's counsel did not object to the prosecutor's statement during trial. The law in Michigan is clear that the absence of objection during the trial precludes appellate review of alleged prejudicial remarks by a prosecutor in closing argument, unless the prejudicial effect was so great that it could not have been cured by a timely cautionary instruction. People v Lasenby, 107 Mich. App. 462; 309 NW2d 572 (1981), citing People v Rojem, 99 Mich. App. 452; 297 NW2d 698 (1980), People v Tenbrink, 93 Mich. App. 326; 287 NW2d 223 (1979), People v Blassingame, 59 Mich. App. 327; 229 NW2d 438 (1979).

The prosecutor's comments were supported by the evidence in the case and therefore were not improper.

Defendant's conviction for the crime of forgery is vacated; the conviction for uttering and publishing a forged instrument is affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.