People v. Richard Johnson
People v. Richard Johnson
Opinion of the Court
Defendant appeals as of right following his jury conviction of unarmed robbery,
The charges against defendant arose out of the unarmed robbery of Gregory Duvall, an employee of Wierenga’s Marathon gas station in Grand Rapids. Duvall and two other employees, Charles Poisson and Matthew Heyden, were working on the evening of March 11, 1986. Defendant previously worked at the gas station but quit several days prior to the robbery. Gregory Duvall was in charge of taking the day’s receipts to the bank for deposit. Duvall put the bank bag inside his coat and zipped his coat closed. Duvall was in his car when defendant approached him and asked for a ride. After going the distance of a few blocks from the station, Duvall pulled over and stopped his car to let defendant out. Defendant said, "I know you have that money.” Defendant hit Duvall in the face, knocking his eyeglasses into the back seat of the car. Defendant unzipped Duvall’s jacket, reached inside and took the bank deposit bag. Defendant got out of the car and walked away. The incident occurred between 9:00 and 9:10 p.m.
A police report was taken about 9:30 p.m. Officer Clemens went to defendant’s last known address at about 10:15 p.m. or 10:30 p.m. Clemens spoke to Patricia Woodford, who identified herself as defen
James Merriweather was also listed as a witness on defendant’s notice of alibi. Merriweather was called by defendant. Merriweather said that on March 11, 1986, he was with defendant from 8:50 p.m. until after midnight. At about 9:50 p.m., he and defendant and a third person went to a store where defendant bought cigarettes and pop, which he took to Woodford’s apartment. Defendant went inside the apartment for five to ten minutes while Merriweather and the third person waited in the car.
The first issue we will consider is whether defendant’s failure to testify waived the issue whether his prior convictions should have been suppressed. The United States Supreme Court has held that a defendant must testify in order to preserve the issue of improper impeachment by evidence of prior convictions. Luce v United States, 469 US 38, 41-42; 105 S Ct 460; 83 L Ed 2d 443 (1984). This Court has found that a defendant waived the issue of improper impeachment by his failure to testify when the record is inadequate to show whether defendant would have testified had the prior convictions been suppressed or what defendant’s testi
In the present case, defendant moved for suppression of two prior convictions. Defendant’s attorney said that, if the prior convictions were suppressed, then defendant would testify. In addition, defendant’s attorney indicated that defendant’s testimony would be that the witnesses were fabricating a case against him. While this outline of defendant’s testimony was brief, we believe that it was minimally sufficient to preserve the issue for review.
Next, we will consider whether the trial court abused its discretion in ruling that defendant’s two prior convictions for first-degree criminal sexual conduct and assault with intent to commit murder could be used for impeachment. MRE 609 provides:
(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
*642 (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.
In Allen, supra, our Supreme Court amended MRE 609 and explained the effect of the amendment. Under the new rule, some prior convictions must be allowed to be used for impeachment while other prior convictions may never be used for impeachment, 429 Mich 593-594, 596. These "bright-line” rules do not apply to trials begun before March 1, 1988, and thus do not apply to the present case, 429 Mich 609. However, the trial court has discretion to allow theft crimes with no elements of dishonesty or false statement to be used for impeachment, 429 Mich 596. The Allen Court clarified the factors the trial court should consider when exercising its discretion. The court directed that, until the new MRE 609 becomes effective, these discretionary factors would apply to the balancing process that takes place under the current MRE 609(a) with regard to theft and nontheft crimes, 429 Mich 609.
As MRE 609(a)(2) directs, prior convictions may be used for impeachment unless their probative value is outweighed by the prejudicial effect. The Allen Court provided two factors to be considered in determining the probative value of prior convictions. First, the degree to which the crime is indicative of veracity should be considered. Second, the court should consider whether the prior conviction is remote or recent in time, 429 Mich 605-606.
In the present case, we find no abuse of discretion in the trial court’s ruling that defendant’s prior convictions of first-degree criminal sexual conduct and assault with intent to commit murder could be used for impeachment. The probative value of the prior convictions is low because both are assaultive crimes. Assaultive crimes have low probative value with respect to veracity, 429 Mich 611. In addition, both convictions occurred in 1979, while defendant’s trial occurred in 1986. Thus, the convictions have low probative value because they were not relatively recent.
Although the probative value of the prior convictions is low, the prejudicial effect is also low. First-degree criminal sexual conduct and assault with intent to commit murder are somewhat similar to the charged offense of unarmed robbery in that all three are assaultive crimes. However, the similarity is not great because the emphasis of first-degree criminal sexual conduct is on the sexual conduct, which is not present in unarmed robbery. Assault with intent to commit murder is somewhat more similar to unarmed robbery, but the emphasis in the former offense is on the intent element while the latter offense requires intent to commit robbery.
Since the prior convictions were only somewhat similar to the charged offense and defendant’s testimony was not required to put his version of the events into evidence, the prejudicial effect of allowing use of prior convictions was low. The levels of probativeness and prejudice were relatively close. Therefore, the trial court’s decision to allow use of the prior convictions was not error warranting reversal, 429 Mich 611-612.
Defendant’s conviction is affirmed.
Dissenting Opinion
(dissenting). If People v Allen, 429 Mich 558; 420 NW2d 499 (1988), had not been decided I would have voted to affirm the convic
In the present case I agree with the majority’s opinion that the probative value of the prior convictions is low. I do not agree that the prejudicial effect is also low. This was an assaultive crime and it is more than likely that a jury would conclude that, if this defendant were willing to commit the serious assault contained in a first-degree criminal sexual conduct conviction and the even more serious assault contained in assault with intent to commit murder, the defendant would certainly be willing to commit a much lesser assault involved in the offense of unarmed robbery. Where a jury is faced with deciding whether the defendant committed the crime or did not and must decide which witnesses to believe, it would be unlikely that a jury would disregard or attach little importance to the fact that this defendant had committed two serious assaultive crimes.
I also believe that defendant’s testimony was important to the decisional process. His demeanor and his credibility on the fabrication theory were essential to a proper evaluation of the case.
I would reverse and remand for new trial.
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