People v. Perry ( 1988 )

H. R. Gage, J.

(concurring). I concur with the result reached by the majority but write separately regarding whether the defendant must testify to preserve the issue of impeachment by evidence of prior convictions. Prior panels of this Court have reached conflicting conclusions. Compare People v Frey, 168 Mich App 310; 424 NW2d 43 (1988); People v Finley, 161 Mich App 1; 410 NW2d 282 (1987), lv gtd 429 Mich 894 (1988). In People v Allen, 422 Mich 972 (1985), our Supreme Court granted leave to appeal and ordered that the parties brief the issue "whether the Supreme Court should adopt the rule . . . that to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.” However, in deciding Allen, our Supreme Court failed to address the issue. People v Allen, 429 Mich 558; 420 NW2d 499 (1988).

In the absence of any clear direction from our Supreme Court, I would find persuasive the reasons advanced in Luce v United States, 469 US 38, 41-42; 105 S Ct 460; 83 L Ed 2d 443 (1984), for requiring the defendant to testify in order to preserve this issue:

A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context. This is particularly true under Rule 609(a)(1), which directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant. To perform this balancing, the court must know the precise nature of the defendant’s testimony, which is unknowable when, as here, the defendant does not testify.

Any possible harm flowing from a district court’s in limine ruling permitting impeachment by a prior conviction is wholly speculative. The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant’s proffer. . . .

When the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction. If, for example, the Government’s case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible prior conviction.

Because an accused’s decision whether to testify "seldom turns on the resolution of one factor,” . . . a reviewing court cannot assume that the adverse ruling motivated a defendant’s decision not to testify. . . .

Even if these difficulties could be surmounted, the reviewing court would still face the question of harmless error. . . . Requiring that a defendant testify in order to preserve Rule 609(a) claims will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage making such motions solely to "plant” reversible error in the event of conviction.

For these reasons, I would find that the issue of impeachment by evidence of prior convictions is not preserved for appellate review due to defendant’s failure to testify.