People v. Albert Thompson
People v. Albert Thompson
Concurring Opinion
(concurring). I concur in the result reached by the majority. I am in agreement with the majority’s analyses of all issues raised, except that concerning the use of an alias.
I prefer the reasoning of People v Dietrich, 87 Mich App 116, 138-139; 274 NW2d 472 (1978), and decline to follow the reasoning of the majority on this issue.
Opinion of the Court
Defendant was found guilty of larceny in a building following a jury trial on April 12, 1979. MCL 750.360; MSA 28.592. On April 26, 1979, he was sentenced to a term of imprisonment of two years, eight months to four years. Thereafter, on May 15, 1979, defendant pled guilty to being a fourth-time felony offender contrary to MCL 769.12; MSA 28.1084. At that time, a flat sentence of five years was imposed to replace the earlier indeterminate sentence. Defendant now appeals as of right.
Defendant first submits that it was error for the trial court to allow the prosecutor, over objection,
The unstated inference which a juror might draw from the use of an alias is that defendant was "up to no good” or he would not have chosen to use a second name. Cross-examination as to the use of an alias permits a jury to speculate that a defendant may have been involved in some nefarious activity, unspecified as to time, nature and circumstances. Evidence of other speciñc acts are admissible only under limited circumstances, MRE 404(b), People v Spillman, 399 Mich 313; 249 NW2d 73 (1976). Evidence that would permit an inference of nonspeciñc misconduct should be at least equally circumscribed.
This does not mean that we would disapprove evidence about a witness’s use of an alias in all instances. Such evidence may be admissible under MRE 404(b) as part of the prosecutor’s case in
Even in those instances where questions might permissibly be asked concerning the use of an alias, the trial court still has an obligation to balance the probative value of the questions on credibility against the potential danger for unfair prejudice. MRE 403.
Despite the foregoing, no reversal is required in this case. The questions concerning defendant’s use of assumed names were few and not highly inflammatory. The prosecutor did not refer to defendant’s use of aliases in his closing argument. Most importantly, two eyewitnesses testified that they saw defendant put the items, 4 musk oil gift sets and 18 musk oil colognes, into a bag and leave the store without paying for them. It was uncontroverted that defendant fled after being approached by store security guards. The evidence of defendant’s guilt was overwhelming. The error was harmless.
Defendant next asserts that the trial court’s ruling that he could be impeached by proof of a prior conviction requires reversal. Admissibility decisions vis-á-vis the use of prior convictions are within the trial judge’s discretion. People v Jackson, 391 Mich 323, 336; 217 NW2d 22 (1974). In People v Crawford, 83 Mich App 35, 39; 268 NW2d
"The factors which the judge must weigh in making his determination include: (1) the nature of the prior offense (did it involve an offense which directly bears on credibility, such as perjury?), (2) whether it is for substantially the same conduct for which the defendant is on trial (are the offenses so closely related that the danger that the jury will consider the defendant a 'bad man’ or infer that because he was previously convicted he likely committed this crime, and therefore create prejudice which outweighs the probative value on the issue of credibility?), and (3) the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions (are there alternative means of presenting a defense which would not require the defendant’s testimony, i.e., can his side of the story be presented, or are there alternative, less prejudicial means of impeaching the defendant?).”
Although the Crawford factors were not explicitly noted by the trial judge, lengthy argument with counsel prior to his ruling convinces us that he was well aware of the appropriate standards. See People v Joyner, 93 Mich App 554, 560-561;
Defendant lastly argues that a reference to his brother’s suspected theft activity requires reversal.
Affirmed.
By Supreme Court Administrative orders 417 and 419, adopted May 9, 1980, the Court amended MRE 609. MRE 609(a)(2) now provides that before allowing impeachment by evidence of a prior conviction the court must determine "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”. The amended rule is in accord with the spirit of Crawford and impliedly disapproves those cases in which this Court has held that absent an affirmative misapplication of the relevant factors on the record, admission of prior convictions evidence is proper. Inter alia: People v Pleasant, 69 Mich App 322; 244 NW2d 464 (1976), People v Strickland, 78 Mich App 40; 259 NW2d 232 (1977), People v Makidon, 84 Mich App 287; 269 NW2d 568 (1978), People v Roberson, 90 Mich App 196; 282 NW2d 280 (1979). In effect, these cases presumed regularity in the admission of prior conviction evidence since they did not require the trial court to explain for the record what factors it considered in allowing impeachment by prior conviction.
Defense counsel actually argued more strenuously for a partial exclusion of defendant’s record than a total exclusion. She quoted from one case which suggested, as a solution to the extensive criminal record problem, allowing the admission of a single conviction.
In response to the prosecutor’s question, "What did you see, sir?” the witness answered:
"I observed two black sus — males enter the store. And one of them I had seen before inside our store, stealing. So I continued to watch them. And they had gone to a display of cologne. And they had been talking, I couldn’t hear what they were saying. One pointed out this cologne display. And at that time I observed his friend take out a plastic bag from Sibley’s, from underneath his coat and start picking up various bottles of cologne and filling the bag.”
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