People v. Terryes Johnson , 122 Mich. App. 172 ( 1982 )

122 Mich. App. 172 (1982) 333 N.W.2d 32

PEOPLE
v.
TERRYES JOHNSON

Docket No. 62000.

Michigan Court of Appeals.

Decided December 20, 1982.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Nancy Alberts, Assistant Prosecuting Attorney, for the people.

Alvin C. Sallen, for defendant.

Before: D.C. RILEY, P.J., and N.J. KAUFMAN and D.F. WALSH, JJ.

D.C. RILEY, P.J.

The facts of this case are adequately set forth in Judge WALSH'S opinion.

We are in agreement with Judge WALSH'S analysis of defendant's challenge to the adequacy of the court's jury instructions and therefore adopt it as our own. However, we find that the trial court erred in admitting evidence of defendant's prior convictions for attempted breaking and entering.

Under proper circumstances, MRE 609 allows the introduction of evidence of prior convictions for impeachment purposes. MRE 609(a) provides as follows:

"(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

"(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." (Emphasis added.)

The record reveals that the trial court failed to comply with MRE 609(a)(2) in that it made no mention of the factors it considered in determining that the probative value of admitting this evidence outweighed its prejudicial effect. The trial court's fleeting reference to People v Crawford, 83 Mich. App. 35, 39; 268 NW2d 275 (1978), does not compel a different result. When ruling on defendant's motion in limine, the trial court stated:

"The motion is denied. It is a matter within my discretion and based on the factors mentioned in People v Crawford, I will allow the prosecutor to inquire as to those felonies that we have mentioned."

This conclusory statement is insufficient to satisfy the dictates of Crawford, supra. When ruling on such a motion, the trial court should note its discretion and the Crawford factors, as well as the factual circumstances supporting its decision. People v Barker, 97 Mich. App. 253, 256, fn 1; 293 NW2d 787 (1980); People v Joyner, 93 Mich. App. 554, 560-561; 287 NW2d 286 (1979).

Furthermore, the trial court's statement,

"I believe that the jury knows that Mr. Johnson has committed so [sic] similar offenses on more than one occasion that he certainly might have the propensity for this type of crime and it would be more likely that he committed this one than he did not",

leads us to believe that it erroneously weighed the second Crawford factor, i.e., similarity, in favor of admission and, therefore, defendant's conviction is reversed.

Reversed.

N.J. KAUFMAN, J., concurred.

D.F. WALSH, J. (concurring in part and dissenting in part).

Defendant, Terryes Johnson, was convicted of breaking and entering with intent to commit larceny. MCL 750.110; MSA 28.305. He was sentenced to a prison term of six to ten years.

Defendant first challenges the adequacy of the court's instructions to the jury regarding specific intent. Review of the instructions as a whole, however, demonstrates conclusively that the instructions were proper and adequate.

Next, defendant contends that the court committed reversible error in permitting admission of evidence of defendant's prior convictions for attempted breaking and entering for impeachment purposes. The majority agrees and reverses. I must respectfully dissent.

The record establishes that the court recognized and exercised its discretion. People v Jackson, 391 Mich. 323; 217 NW2d 22 (1974). I find no abuse of that discretion. People v Williams, 413 Mich. 72; 318 NW2d 462 (1982).

The court correctly recognized that the similarity between the prior convictions and the charged offense required that the court be "extremely careful" in determining admissibility. People v Baldwin, 405 Mich. 550; 275 NW2d 253 (1979). Evidence of the prior convictions for theft-related offenses was, however, probative of defendant's credibility. See People v Gary Johnson, 105 Mich. App. 332, 341; 306 NW2d 501 (1981); People v Rush, 118 Mich. App. 236; 324 NW2d 586 (1982). And the court's ruling did not deprive the jury of defendant's testimony. Compare People v Williams, supra.

I am persuaded that there was no abuse of discretion and that defendant received a fair trial. I would affirm.